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Bava Kamma 79a

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Babylonian Talmud · folio map

Bava Kamma 79a

Bava Kamma 79a. The full printed text of this folio side — 15 numbered segments, about 292 words — with the classic commentaries printed on the page.

Original text

Segment 1

גָּנַב וְהִקְדִּישׁ; גָּנַב וְהִקִּיף; גָּנַב וְהֶחְלִיף; גָּנַב וְנָתַן בְּמַתָּנָה; גָּנַב וּפָרַע חוֹבוֹ; גָּנַב וּפָרַע בְּהֶקֵּיפוֹ; גָּנַב וְשָׁלַח סִבְלוֹנוֹת בְּבֵית חָמִיו – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

The baraita continues: If he stole an animal and consecrated it, or if he stole an animal and sold it on credit, i.e., without receiving any money for it at the time, or if he stole an animal and exchanged it for another item, or if he stole an animal and gave it to another as a gift, or if he stole an animal and used it to repay his debt, or if he stole an animal and used it to pay for an item he purchased on credit, or if he stole an animal and sent it in the form of presents to his betrothed in his father-in-law’s house, in all of these cases he pays the fourfold or fivefold payment, as these acts are all considered forms of selling. This concludes the baraita .

Segment 2

מַאי קָא מַשְׁמַע לַן? אַשְׁמְעִינַן רֵישָׁא גָּנַב וְנָתַן לְאַחֵר וְטָבַח – דְּיֵשׁ שָׁלִיחַ לִדְבַר עֲבֵירָה. אַף עַל גַּב דִּבְכׇל הַתּוֹרָה כּוּלָּהּ אֵין שָׁלִיחַ לִדְבַר עֲבֵירָה, הָכָא יֵשׁ שָׁלִיחַ לִדְבַר עֲבֵירָה.

The Gemara asks: What is this baraita teaching us? All of the halakhot it states are obvious. The Gemara answers: The first clause teaches us, through the case of one who stole an animal and gave it to another and that person slaughtered or sold it on his behalf, that in this case there is agency for transgression. Even though in the entire Torah there is a principle that there is no agency for transgression, here there is agency for transgression. The Torah’s principle is that a transgression committed by an agent who was appointed by another person is not considered the act of the one who appointed the agent, but the independent act of the agent himself. The case discussed by this baraita is an exception to the rule, as here, the agent’s slaughter or sale of the animal is legally considered the action of the thief.

Segment 3

מַאי טַעְמָא? ״וּטְבָחוֹ״ וּ״מְכָרוֹ״; מָה מְכִירָה – דְּלָא אֶפְשָׁר דְּלָאו עַל יְדֵי אַחֵר, אַף טְבִיחָה עַל יְדֵי אַחֵר – מִחַיַּיב.

What is the reason that this case is an exception to the principle? It is because the verse states: “And slaughters it or sells it” (Exodus 21:37), which juxtaposes the two acts of slaughtering and selling. This teaches that just as one becomes liable for selling, which by definition is impossible without another party, i.e., the buyer, so too one becomes liable for slaughtering even when it is by means of another party, i.e., when the thief instructs another person to slaughter the animal on his behalf.

Segment 4

וְאַשְׁמְעִינַן סֵיפָא גָּנַב וְהִקְדִּישׁ – מָה לִי מְכָרוֹ לְהֶדְיוֹט, מָה לִי מְכָרוֹ לַשָּׁמַיִם.

And the latter clause of the baraita teaches us a novelty in the case of one who stole an animal and consecrated it. The novelty is that this is considered a sale despite the fact that there is no purchaser. This is due to the following argument: What difference is it to me if he sold the animal to an ordinary person, and what difference is it to me if he sold it to Heaven by consecrating it? If the animal changes ownership, it is considered a sale, and it does not matter if the new owner is an ordinary person or the Temple treasury.

Segment 5

מַתְנִי׳ גָּנַב בִּרְשׁוּת הַבְּעָלִים, וְטָבַח וּמָכַר חוּץ מֵרְשׁוּתָם; אוֹ שֶׁגָּנַב חוּץ מֵרְשׁוּתָם, וְטָבַח וּמָכַר בִּרְשׁוּתָם; אוֹ שֶׁגָּנַב וְטָבַח וּמָכַר חוּץ מֵרְשׁוּתָם – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. אֲבָל גָּנַב וְטָבַח וּמָכַר בִּרְשׁוּתָם – פָּטוּר.

MISHNA: If one stole an animal in its owner’s domain, i.e., he took hold of it or established control over it but had not yet removed it from the owner’s premises, and then he slaughtered it or sold it outside of the owner’s domain; or if he stole an animal outside of the owner’s domain and slaughtered it or sold it in the owner’s domain; or if he stole an animal and slaughtered it or sold it, and all of this occurred outside the owner’s domain, in all of these cases, he must pay the fourfold or fivefold payment. But if he stole it and slaughtered or sold it, and all of this occurred in the owner’s domain, he is exempt from any of the fines for theft, as it is not considered theft until the stolen object is actually removed from the owner’s premises.

Segment 6

הָיָה מוֹשְׁכוֹ וְיוֹצֵא, וּמֵת בִּרְשׁוּת הַבְּעָלִים – פָּטוּר. הִגְבִּיהוֹ אוֹ הוֹצִיאוֹ מֵרְשׁוּת בְּעָלִים, וָמֵת – חַיָּיב.

If the thief was in the process of leading the animal and leaving the owner’s premises, and it died while it was still in the owner’s domain, the thief is exempt from all fines. If he lifted it up or led it out of the owner’s domain and then the animal died, he is liable for his theft. For an act to be considered theft, the thief must acquire the item by pulling it or moving it, which are ineffective forms of acquisition on the owner’s premises; or by lifting it up, which is effective even when performed in the owner’s domain.

Segment 7

נְתָנוֹ לִבְכוֹרוֹת בְּנוֹ אוֹ לְבַעַל חוֹב, לְשׁוֹמֵר חִנָּם, לְשׁוֹאֵל, לְנוֹשֵׂא שָׂכָר וּלְשׂוֹכֵר; וְהָיָה מוֹשְׁכוֹ, וּמֵת בִּרְשׁוּת הַבְּעָלִים – פָּטוּר. הִגְבִּיהוֹ אוֹ שֶׁהוֹצִיאוֹ מֵרְשׁוּת הַבְּעָלִים, וָמֵת – חַיָּיב.

If the thief gave the animal as payment for the redemption of his firstborn son, or as payment to a creditor, or conveyed it for safeguarding to an unpaid bailee, or lent it to a borrower, or conveyed it for safeguarding to a paid bailee, or leased it to a renter, and he was leading out the animal and it died in the owner’s domain, the thief is exempt from all fines. If that individual, following the thief’s instructions, lifted up the animal or led it out of the owner’s domain, and it subsequently died, the thief is liable for the theft. The thief is liable for instructing another to remove the animal for the purposes of payment of a debt, safekeeping, borrowing, or rental, as this is tantamount to the thief taking it with his own hands.

Segment 8

גְּמָ׳ בָּעֵי אַמֵּימָר: תִּיקְּנוּ מְשִׁיכָה בְּשׁוֹמְרִים, אוֹ לֹא?

GEMARA: Ameimar raises a dilemma: Did the Sages institute the requirement of pulling or leading an animal with regard to bailees, or not? When an animal or other item is purchased, the parties to the sale are not bound by the deal until the purchaser performs an act of acquisition, one of which is pulling the animal or leading it along. Did the Sages institute an ordinance that the same applies to bailees? In other words, does the bailee’s obligation to safeguard the animal or item begin as soon as he consents to watch it, or only after he has taken the animal and moved it even minimally?

Segment 9

אָמַר רַב יֵימַר, תָּא שְׁמַע: נְתָנוֹ לִבְכוֹרוֹת בְּנוֹ אוֹ לְבַעַל חוֹבוֹ, לְשׁוֹמֵר חִנָּם וּלְשׁוֹאֵל, לְנוֹשֵׂא שָׂכָר וּלְשׂוֹכֵר; הָיָה מוֹשְׁכוֹ וְיוֹצֵא, וּמֵת בִּרְשׁוּת הַבְּעָלִים – פָּטוּר. מַאי, לָאו שׁוֹמֵר – וּשְׁמַע מִינַּהּ תִּיקְּנוּ מְשִׁיכָה בְּשׁוֹמְרִין?

Rav Yeimar said: Come and hear a proof from the mishna: If the thief gave the animal as payment for the redemption of his firstborn son, or as payment to a creditor, or conveyed it for safeguarding to an unpaid bailee, or lent it to a borrower, or conveyed it for safeguarding to a paid bailee, or rented it to a renter, and he was leading out the animal and it died in the owner’s domain, the thief is exempt from payment. What, is it not talking about the bailee leading out the animal, when it states that the thief is exempt? And if so, conclude from this mishna that the Sages instituted the requirement of pulling with regard to bailees. If the bailee’s obligation begins immediately upon his consent to watch over the item, it would be considered stolen by the thief at that stage, even before the bailee moves it.

Segment 10

אֲמַר לֵיהּ: לָא, גַּנָּב.

Ameimar said to Rav Yeimar: No, this is not necessarily the correct interpretation of the mishna. The mishna may mean that the owner gave the animal to his creditor or to a bailee, and subsequently a thief came to steal it from the house of the creditor or the bailee, and it was the thief who was leading the animal out of those premises when it died.

Segment 11

הָא תְּנָא לֵיהּ רֵישָׁא! תְּנָא גַּנָּב שֶׁגָּנַב מִבֵּית הַבְּעָלִים, וּתְנָא גַּנָּב שֶׁגָּנַב מִבֵּית שׁוֹמֵר.

Rav Yeimar asked: How can that clause of the mishna refer to an animal that died as the thief was leading it out? The mishna already taught this halakha in the first clause. Ameimar answered: Nevertheless, it is possible that the mishna taught this halakha concerning a thief who stole an animal from its owner’s house, and then taught it again with regard to a thief who stole an animal from a bailee’s house.

Segment 12

אֲמַר לֵיהּ רַב אָשֵׁי: לָא תְּדַחֲיֵיהּ; מָה לִי גַּנָּב שֶׁגָּנַב מִבֵּית שׁוֹמֵר, מָה לִי גַּנָּב שֶׁגָּנַב מִבֵּית בְּעָלִים?

Rav Ashi said to Ameimar: Do not reject Rav Yeimar’s argument by means of this alternative interpretation of the mishna. It is not reasonable to assert that the mishna taught this halakha twice, as what difference is it to me if the thief stole it from the bailee’s house and what difference is it to me if the thief stole it from the owner’s house? There is no halakhic distinction between these two cases. Therefore, the mishna would not have discussed both of them.

Segment 13

אֶלָּא לָאו שׁוֹמֵר – וּשְׁמַע מִינַּהּ תִּיקְּנוּ מְשִׁיכָה בְּשׁוֹמְרִין? שְׁמַע מִינַּהּ. אִיתְּמַר נָמֵי, אָמַר רַבִּי אֶלְעָזָר: כְּדֶרֶךְ שֶׁתִּיקְּנוּ מְשִׁיכָה בְּלָקוֹחוֹת, כָּךְ תִּיקְּנוּ מְשִׁיכָה בְּשׁוֹמְרִין.

Rather, is it not more reasonable to say that the mishna should be interpreted as meaning that the bailee was leading the animal out of the owner’s house at the behest of the thief, as Rav Yeimar claimed? And therefore, one should conclude from the mishna that the Sages instituted the requirement of pulling with regard to bailees. The Gemara affirms: Conclude from the mishna that they did. It was also stated explicitly that Rabbi Elazar says: Just as the Sages instituted the requirement of pulling with regard to purchasers, so too they instituted the requirement of pulling with regard to bailees.

Segment 14

תַּנְיָא נָמֵי הָכִי: כְּדֶרֶךְ שֶׁתִּיקְּנוּ מְשִׁיכָה בְּלָקוֹחוֹת, כָּךְ תִּיקְּנוּ מְשִׁיכָה בְּשׁוֹמְרִין. וּכְשֵׁם שֶׁהַקַּרְקַע נִקְנֵית בְּכֶסֶף, בִּשְׁטָר וּבַחֲזָקָה, כָּךְ שְׂכִירוּת נִקְנֵית בְּכֶסֶף, בִּשְׁטָר וּבַחֲזָקָה.

This is also taught in a baraita : Just as the Sages instituted the requirement of pulling with regard to purchasers, so too they instituted the requirement of pulling with regard to bailees. And just as land is acquired by the payment of money, by the writing of a deed of sale, or by the purchaser taking possession of the land through working it, so too a rental deal is finalized by the payment of money, by the writing of a deed of rent, or by the renter taking possession of the land. This concludes the baraita .

Segment 15

שְׂכִירוּת דְּמַאי? אִילֵימָא

The Gemara asks: When the baraita speaks of rental, it is referring to rental of what kind of property? If we say

Bava Kamma 79a

Bava Kamma 79a

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