Rava concludes that the Mishna relates to a different case than the Rabbi Tarfon/Rabbi Akiva debate in Yevamot 118b. Our Mishna is a case where the thief knows who he/she stole from. Therefore, whether or not one needs to return the item directly or one can let the person know that the stolen item is available to be picked up is dependent on the severity of the actions of the thief – whether or not the thief swore and admitted and needs repentance from that or not. Rabbi Tarfon and Rabbi Akiva’s debate is not dependent on whether or not one swore as the issue there is because the thief does not know the identity of the one whom he/she stole from. If one appointed an agent in front of witnesses to receive a loan payment (for example), Rav Hisda and Rabba disagree about whether when the agent receives the payment, the borrower is no longer responsible if something happens to the money on the way or was the agent appointed to make it easier for the borrower to get the money back to the original owner but does not assume responsibility. Two difficulties are raised against Rav Chisda’s opinion, that the agent assumes responsibility, one from a Mishna in Bava Metzia 98b and one from our Mishna. Both are resolved. Rabbi Yochanan and Rabbi Elazar held like Rav Chisda as well. Shmuel was hesitant to allow people to send money with agents appointed by the creditor as they do not assume responsibility even if they carry a stamp and a signature of the creditor. How were people able to collect loans back from debtors who lived far away? How can it be done securely? Two stories are brought highlighting a possible method. The nature of the payment of the one-fifth, chomesh, is discussed – is it to effect atonement for the thief or is it a financial payment? If it is a financial payment, and the thief dies, the children are liable to pay it. This contradicts a braita which rules that they do not. How can that contradiction be resolved?
Bava Kamma 104
Share this shiur:
Bava Kamma
Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
Want to dedicate learning? Get started here:
Today’s daily daf tools:
Bava Kamma
Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
Bava Kamma 104
שֶׁכְּבָר הוֹדָה מִפִּי עַצְמוֹ!
as he has already admitted his obligation on his own. Rabbi Tarfon concedes that a robber who wishes to repent must go to any length to return the stolen item to its owner. If the mishna here is in accordance with his opinion, it should not have stated its ruling specifically in a case where the robber took a false oath.
אֶלָּא אָמַר רָבָא: שָׁאנֵי מַתְנִיתִין, דְּכֵיוָן דְּיָדַע לְמַאן גַּזְלֵיהּ, וְאוֹדִי לֵיהּ; כֵּיוָן דְּאֶפְשָׁר לְאַהְדּוֹרֵי מָמוֹנָא לְמָרֵיהּ – הָוֵה לֵיהּ כְּמַאן דְּאָמַר לֵיהּ: ״יִהְיוּ לִי בְּיָדְךָ״. הִלְכָּךְ, נִשְׁבַּע – אַף עַל גַּב דְּקָאָמַר לֵיהּ: ״יִהְיוּ לִי בְּיָדְךָ״, כֵּיוָן דְּבָעֵי כַּפָּרָה, לָא סַגִּי עַד דְּמָטֵי לִידֵיהּ; הָא לָא אִישְׁתְּבַע – הָוֵי גַּבֵּיהּ פִּקָּדוֹן, עַד דְּאָתֵי וְשָׁקֵיל לֵיהּ.
Rather, Rava said: The case of the mishna is different, and the halakha stated here could be in accordance with the opinions of both Rabbi Tarfon and Rabbi Akiva. For as the robber knows whom he robbed and admitted to him that he robbed him, since it is possible to return the money to its owner, the robbery victim is as the one who says to the robber: The money you owe me will be kept in your possession as a deposit for me. Therefore, in a case where the robber took a false oath, even though the owner is considered to have said to him: The money you owe me will be kept in your possession as a deposit for me, since the robber requires atonement for his false oath, it is not possible for him to achieve atonement until the money reaches the possession of the robbery victim. But in a case where the robber did not take a false oath, the money is considered as a deposit given to the robber until the owner comes and takes it.
לֹא יִתֵּן לֹא לִבְנוֹ וְלֹא לִשְׁלוּחוֹ. אִיתְּמַר: שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים – רַב חִסְדָּא אָמַר: הָוֵי שָׁלִיחַ, רַבָּה אָמַר: לָא הָוֵי שָׁלִיחַ.
§ The mishna teaches that if the robber wishes to return the stolen item, he may not give the payment to the robbery victim’s son to return it to the robbery victim, nor to his agent. The Gemara comments: It was stated with regard to an agent who was appointed in the presence of witnesses to collect a debt from another: Rav Ḥisda said: Such an agent is a legally recognized agent, so that the debtor is considered to have repaid his debt as soon as he transfers the money to the agent, and the debtor will not be held responsible if an accident occurs causing the loss of the money before the agent gives it to the creditor. Rabba said: Such an agent is not a legally recognized agent, and the debtor remains responsible until the money reaches the creditor’s possession.
רַב חִסְדָּא אָמַר הָוֵי שָׁלִיחַ – לְהָכִי טְרַחִי וְאוֹקְמֵיהּ בְּעֵדִים, דְּלֵיקוּ בִּרְשׁוּתֵיהּ. רַבָּה אָמַר לָא הָוֵי שָׁלִיחַ – הָכִי קָאָמַר: אִינִישׁ מְהֵימְנָא הוּא; אִי סָמְכַתְּ – סְמוֹךְ, אִי בָּעֵית לְשַׁדּוֹרֵיה בִּידֵיהּ – שַׁדַּר בִּידֵיהּ.
The Gemara explains their respective opinions: Rav Ḥisda said that he is an agent because it was for this reason that the creditor took the trouble and appointed the agent in the presence of witnesses, in order to place the matter under the agent’s domain. Rabba said that he is not an agent because this is what the creditor is assumed to be saying to the debtor: This individual is a trustworthy person. If you are willing to rely on him, then rely on him to convey the payment to me. Similarly: If you wish to send the debt in his possession, then send it in his possession.
תְּנַן: הַשּׁוֹאֵל אֶת הַפָּרָה, וְשִׁילְּחָהּ בְּיַד בְּנוֹ, בְּיַד עַבְדּוֹ, בְּיַד שְׁלוּחוֹ; אוֹ בְּיַד בְּנוֹ, בְּיַד עַבְדּוֹ, בְּיַד שְׁלוּחוֹ שֶׁל שׁוֹאֵל; וּמֵתָה – פָּטוּר.
The Gemara cites a mishna that poses a difficulty to the opinion of Rav Ḥisda. We learned in a mishna (Bava Metzia 98b): With regard to one who enters into an agreement to borrow a cow from another, and the owner sent it to the borrower in the possession of his own son, or in the possession of his own slave, or in the possession of his own agent, or if he sent it in the possession of the borrower’s son, or in the possession of the borrower’s slave, or in the possession of the borrower’s agent, and the cow died, the borrower is exempt from paying for the cow, as it never entered his possession.
הַאי שְׁלוּחוֹ הֵיכִי דָמֵי? אִי דְּלֹא (עָשָׂה) [עֲשָׂאוֹ] בְּעֵדִים, מְנָא יָדְעִינַן? אֶלָּא (דְּעָשָׂה) [דַּעֲשָׂאוֹ] בְּעֵדִים – וְקָתָנֵי דְּפָטוּר? קַשְׁיָא לְרַב חִסְדָּא!
The Gemara explains the case of the mishna: With regard to this agent of the borrower, what are the circumstances surrounding his appointment? If the mishna is discussing a case where he did not appoint him as his agent in the presence of witnesses, how do we know that he was appointed as an agent? Rather, it must be that it is a case where he appointed him as his agent in the presence of witnesses, and yet the mishna teaches that the borrower is exempt. This poses a difficulty to the opinion of Rav Ḥisda, who holds that one acquires property through his agent. According to his reasoning, the borrower should be held responsible for the cow once it reaches the possession of the agent.
כִּדְאָמַר רַב חִסְדָּא: בִּשְׂכִירוֹ וּלְקִיטוֹ, הָכָא נָמֵי בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara answers: It is as that which Rav Ḥisda said concerning a different mishna: This is stated with regard to his hired hand or his regular harvester; here also the mishna in Bava Metzia is with regard to his hired hand or his regular harvester. The mishna discusses a case where there were no witnesses to the appointment of the agent, and therefore it does not pose a difficulty to the opinion of Rav Ḥisda. Yet, since it is well known that this person is constantly in the owner’s service, he is assumed to be acting as his agent.
תְּנַן: לֹא יִתֵּן לֹא לִבְנוֹ וְלֹא לִשְׁלוּחוֹ. הַאי שְׁלוּחוֹ הֵיכִי דָמֵי? אִי דְּלָא עֲשָׂאוֹ בְּעֵדִים, מְנָא יָדְעִינַן? אֶלָּא לָאו דַּעֲשָׂאוֹ בְּעֵדִים? תַּרְגְּמַהּ רַב חִסְדָּא: בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara poses a difficulty to the opinion of Rav Ḥisda from the mishna here. We learned in the mishna: If the robber wishes to return the stolen item, he may not give the payment to the robbery victim’s son to return it to the robbery victim, nor to his agent. With regard to this agent of the robbery victim, what are the circumstances surrounding his appointment? If the mishna is discussing a case where the robbery victim did not appoint him as his agent in the presence of witnesses, how do we know that he was appointed as an agent? Rather, is it not discussing a case where the robbery victim appointed him as his agent in the presence of witnesses, and the robber nevertheless does not fulfill his obligation to return the stolen item by giving it to this agent? The Gemara answers: Rav Ḥisda interpreted the ruling of the mishna with regard to his hired hand or his regular harvester, who do not require witnesses to validate their appointment as his agent.
אֲבָל שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים – מַאי, הָכִי נָמֵי דְּהָוֵי שָׁלִיחַ? אַדְּתָנֵי סֵיפָא: אֲבָל נוֹתֵן הוּא לִשְׁלִיחַ בֵּית דִּין; לִפְלוֹג וְלִיתְנֵי בְּדִידֵיהּ – שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, הָכִי נָמֵי דְּהָוֵי שָׁלִיחַ!
The Gemara asks: But with regard to an agent who the robbery victim appointed in the presence of witnesses, what is the halakha? Would one say that indeed, one appointed before witnesses is a legally recognized agent? If that is the case, instead of teaching in the latter clause: But he may give the payment to an agent of the court, which indicates that this is the only agent to whom he may give it, let the mishna make a distinction within the case of an agent appointed by the robbery victim itself and teach: An agent who the robbery victim appointed in the presence of witnesses is indeed a legally recognized agent. If an agent appointed in the presence of witnesses is a legally recognized agent, why does the mishna shift to discuss an agent of the court?
אָמְרִי: לָא פְּסִיקָא לֵיהּ; שְׁלִיחַ בֵּית דִּין, לָא שְׁנָא עֲשָׂאוֹ נִגְזָל וְלָא שְׁנָא עֲשָׂאוֹ גַּזְלָן, הָוֵי שָׁלִיחַ – פְּסִיקָא לֵיהּ. שְׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, דְּכִי עֲשָׂאוֹ נִגְזָל הוּא דְּהָוֵי שָׁלִיחַ, עֲשָׂאוֹ גַּזְלָן לָא הָוֵי שָׁלִיחַ – לָא פְּסִיקָא לֵיהּ.
The Sages say in response: Although the tanna of the mishna could have stated the case of an agent appointed by the robbery victim in the presence of witnesses, he could not have stated this halakha definitively, as with regard to an agent of the court, there is no difference whether the robbery victim appointed him as an agent, i.e., the court appointed him at the behest of the robbery victim, and there is no difference whether the robber appointed him as an agent, i.e., the court appointed him at the behest of the robber. In both cases he is a legally recognized agent. Therefore, he could state the halakha concerning an agent of the court definitively. By contrast, with regard to an agent who was appointed in the presence of witnesses, that only when the robbery victim appointed him as an agent he is an agent, but when the robber appointed him as an agent, he is not an agent, as the robber cannot appoint an agent to receive payment on behalf of the robbery victim, he could not have stated this halakha definitively.
וּלְאַפּוֹקֵי מֵהַאי תַּנָּא – דְּתַנְיָא, רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר: שְׁלִיחַ בֵּית דִּין שֶׁעֲשָׂאוֹ נִגְזָל וְלֹא עֲשָׂאוֹ גַּזְלָן, אוֹ עֲשָׂאוֹ גַּזְלָן וְשָׁלַח הַלָּה וְנָטַל אֶת שֶׁלּוֹ מִיָּדוֹ – פָּטוּר.
The Gemara comments: And this mishna, which rules that an agent of the court is an agent even if appointed only by the robber, serves to exclude the opinion of this following tanna, as it is taught in the Tosefta (10:11) that Rabbi Shimon ben Elazar says: If there was an agent of the court who was appointed by the robbery victim but not appointed by the robber, or an agent who was appointed by the robber, and subsequently the other, i.e., the robbery victim, sent for and took his payment from the agent’s possession, the robber is exempt from paying for any accidental damage to the payment during the delivery. Rabbi Shimon ben Elazar states that the robber is exempt from paying for any accidental damage when he gave the payment to a court agent he appointed only if the robbery victim sent for and took possession of the payment. This is in opposition to the ruling of the mishna that the robber is exempt whenever he gives the payment to an agent of the court.
רַבִּי יוֹחָנָן וְרַבִּי אֶלְעָזָר דְאָמְרִי תַּרְוַיְיהוּ: שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, הָוֵי שָׁלִיחַ. וְאִם תֹּאמַר מִשְׁנָתֵנוּ;
The Gemara cites the opinion of two other amora’im with regard to the status of an agent appointed in the presence of witnesses. Rabbi Yoḥanan and Rabbi Elazar both say: An agent who was appointed in the presence of witnesses is a legally recognized agent. And if you say: Our mishna contradicts this assertion, as it rules that the stolen item is not considered returned if given to an agent of the robbery victim, this is of no concern.
בְּמַמְצִיא לוֹ שָׁלִיחַ, דַּאֲמַר לֵיהּ: ״אִית לִי זוּזֵי גַּבֵּי פְלָנְיָא, וְלָא קָא מְשַׁדַּר לְהוּ. אִיתְחֲזִי לֵיהּ, דִּלְמָא אִינִישׁ הוּא דְּלָא מַשְׁכַּח לְשַׁדּוֹרֵי לֵיהּ״.
The Gemara explains: The mishna does not mean to disqualify an agent appointed by the robbery victim in the presence of witnesses, but rather is referring to a case where the robbery victim provides the robber with an agent without appointing him in the presence of witnesses, in that he says to someone: I have money owed to me that is currently with so-and-so, and he is not sending it. Present yourself to him, as perhaps he wishes to return it but cannot find a person with whom to send it.
אִי נָמֵי, כִּדְרַב חִסְדָּא – בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara offers a second explanation: Alternatively, it is in accordance with the statement of Rav Ḥisda, that the mishna is not discussing a case where he appointed the agent in the presence of witnesses, but it is still known that the agent acts on behalf of the robbery victim, as the ruling of the mishna is stated with regard to the victim’s hired hand or his regular harvester. That is why the robber is still liable after having given the payment to the agent.
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל:
§ The Gemara discusses another matter relating to the appointment of an agent. Rav Yehuda says that Shmuel says:
אֵין מְשַׁלְּחִין מָעוֹת בִּדְיוֹקְנֵי, וַאֲפִילּוּ עֵדִים חֲתוּמִים עָלֶיהָ. וְרַבִּי יוֹחָנָן אָמַר: אִם עֵדִים חֲתוּמִים עָלֶיהָ – מְשַׁלְּחִין.
One who owes a debt may not send money with another to the creditor on the basis of a figure [deyokani] or sign used in place of a signature that is associated with the creditor. The possession of this sign on the part of the other is not sufficient proof that he has been appointed as an agent. And this is the halakha even if witnesses verifying that this is the creditor’s sign are signed on it. And Rabbi Yoḥanan says: If there are witnesses signed on it, one may send the money with the other.
אָמְרִי: לִשְׁמוּאֵל מַאי תַּקַּנְתָּא? כִּי הָא דְּרַבִּי אַבָּא הָוֵי מַסֵּיק זוּזֵי בִּדְרַב יוֹסֵף בַּר חָמָא, אֲמַר לֵיהּ לְרַב סָפְרָא: בַּהֲדֵי דְּאָתֵית, אַיְיתִינְהוּ נִיהֲלִי. כִּי אֲזַל לְהָתָם, אֲמַר לֵיהּ רָבָא בְּרֵיהּ: מִי כָּתַב לָךְ: ״הִתְקַבַּלְתִּי״? אֲמַר לֵיהּ: לָא. אִי הָכִי, זִיל בְּרֵישָׁא, וְיִכְתּוֹב לָךְ ״הִתְקַבַּלְתִּי״.
The Sages say: According to Shmuel, what is the rectification, i.e., what recourse is available to one who wishes to collect a debt without traveling to the debtor’s location? The Gemara answers: One may act like that course of action of Rabbi Abba, who was owed money by Rav Yosef bar Ḥama. Rabbi Abba said to Rav Safra: When you come back from Rabbi Yosef bar Ḥama’s locale, bring my money to me. When Rav Safra went there, Rava, Rav Yosef bar Ḥama’s son, said to him: Did Rabbi Abba write you a document stating: I have received payment, so that my father will have proof that he has absolved himself of the debt? Rav Safra said to him: No. Rava responded: If so, first go to him and let him write you a document stating: I have received payment, and then my father will pay you.
לְסוֹף אֲמַר לֵיהּ: אִי כָּתַב לָךְ נָמֵי ״הִתְקַבַּלְתִּי״, לָאו כְּלוּם הוּא; דִּלְמָא אַדְּאָתֵית שָׁכֵיב רַבִּי אַבָּא, וְנָפְלוּ זוּזֵי קַמֵּי יַתְמֵי, וְ״הִתְקַבַּלְתִּי״ דְּרַבִּי אַבָּא לָאו כְּלוּם הוּא. אֲמַר לֵיהּ: וְאֶלָּא מַאי תַּקַּנְתָּא? זִיל נַקְנִינְהוּ לָךְ אַגַּב אַרְעָא, וְתָא אַתְּ כְּתוֹב לַן ״הִתְקַבַּלְתִּי״.
Ultimately, Rava said to him: Even if he writes you a document stating: I have received payment, it is nothing, since perhaps by the time you arrive back here, Rabbi Abba will have died and the money will fall before his orphans as an inheritance, and the document stating: I have received payment, that was written by Rabbi Abba, will be nothing, as the debt is no longer owed to him, but rather, to his heirs. Rav Safra said to him: Rather, what is the rectification? Rava replied: Go, and Rabbi Abba will transfer to you the rights to the money owed to him by means of acquisition of land from him, and then you should come and write for us a document stating: I have received payment. Then, we will pay you.
כִּי הָא דְּרַב פָּפָּא הֲוָה מַסֵּיק תְּרֵיסַר אַלְפֵי זוּזֵי בֵּי חוֹזָאֵי, אַקְנִינְהוּ נִיהֲלֵיהּ לְרַב שְׁמוּאֵל בַּר אַבָּא אַגַּב אַסִּיפָּא דְבֵיתֵיהּ. כִּי אֲתָא, נְפַק לְאַפֵּיהּ עַד תְּוָאךְ.
The Gemara notes: And this is like that course of action of Rav Pappa, who was owed twelve thousand dinars by a resident of Bei Ḥozai, and he transferred his claim to the money to Rav Shmuel bar Abba by means of the acquisition of the threshold of his house. When Rav Shmuel bar Abba came from Bei Ḥozai with the money in hand, Rav Pappa went out as far as Tavakh toward him in his excitement to receive the money.
נָתַן לוֹ אֶת הַקֶּרֶן וְכוּ׳. אַלְמָא חוֹמֶשׁ מָמוֹנָא הוּא, וְאִם מָיֵית – מְשַׁלְּמִי לֵיהּ יוֹרְשִׁין.
§ The mishna teaches that if the robber gave the robbery victim the principal value of the stolen item, but did not give him the additional one-fifth payment required of a robber, he is not required to pursue the robbery victim in order to return the additional one-fifth payment. The Gemara comments: Apparently, the additional one-fifth payment is considered monetary restitution rather than a fine. And accordingly, if the robber died, the heirs of the robber must pay it to the robbery victim.
וּתְנַן נָמֵי: נָתַן אֶת הַקֶּרֶן וְנִשְׁבַּע עַל הַחוֹמֶשׁ – הֲרֵי מוֹסִיף חוֹמֶשׁ עַל חוֹמֶשׁ. אַלְמָא חוּמְשָׁא מָמוֹנָא הוּא.
And we also learned in the mishna that if the robber gave the robbery victim the principal and takes a false oath to him concerning the additional one-fifth payment, asserting that he had already paid it, the robber adds an additional one-fifth payment apart from the additional one-fifth payment about which he had taken a false oath. Apparently, the additional one-fifth payment is monetary restitution, as one is obligated to pay an additional one-fifth for taking a false oath only with regard to monetary restitution, not with regard to fines.
וְתַנְיָא נָמֵי הָכִי: הַגּוֹזֵל אֶת חֲבֵירוֹ, וְנִשְׁבַּע לוֹ, וָמֵת – יוֹרְשִׁין מְשַׁלְּמִים קֶרֶן וָחוֹמֶשׁ, וּפְטוּרִין מִן הָאָשָׁם.
And this is also taught in a baraita: With regard to one who robs another and takes a false oath to him that he did not rob him, and then dies, his heirs pay the principal and additional one-fifth payments to the robbery victim, but are exempt from the obligation to bring the guilt-offering.
וְיוֹרְשִׁין בְּנֵי שַׁלּוֹמֵי חוּמְשָׁא דַּאֲבוּהוֹן הָווּ – אַלְמָא חוֹמֶשׁ מָמוֹנָא הוּא, וּבָעֵי שַׁלּוֹמֵי יוֹרְשִׁין. וּרְמִינְהוּ, עֲדַיִין אֲנִי אוֹמֵר: אֵימָתַי אֵינוֹ מְשַׁלֵּם חוֹמֶשׁ עַל גֶּזֶל אָבִיו – בִּזְמַן שֶׁלֹּא נִשְׁבַּע לֹא הוּא וְלֹא אָבִיו;
The Gemara asks: But are heirs obligated to pay the additional one-fifth payment of their father, indicating that apparently the additional one-fifth payment is monetary restitution, and therefore the heirs must pay it? But one could raise a contradiction from a baraita. After having stated that one is required to add the additional one-fifth payment only for a robbery he commits himself, and not for a robbery committed by his father, the baraita states: I would still say that when does an heir not pay the additional one-fifth payment for his father’s robbery? It is only when neither he nor his father took a false oath.
הוּא וְלֹא אָבִיו, אָבִיו וְלֹא הוּא, הוּא וְאָבִיו – מִנַּיִן? תַּלְמוּד לוֹמַר: ״אֲשֶׁר גָּזָל וַאֲשֶׁר עָשָׁק״ – וְהוּא לֹא גָּזַל וְלֹא עָשַׁק.
But if he took a false oath, but not his father; or if his father took a false oath, but not he; or if he and his father both took false oaths; from where is the heir’s exemption derived? The verse states: “He shall restore the item that he robbed,” and “the item that he has acquired through exploitation” (Leviticus 5:23), and in this case the heir did not rob and did not exploit. Since the verse states the obligation to pay the additional one-fifth payment when discussing one who robbed or exploited another, and the heir has done neither, he is exempt from payment. This baraita states that heirs are not obligated to pay the additional one-fifth payment.
אָמַר רַב נַחְמָן: לָא קַשְׁיָא; כָּאן שֶׁהוֹדָה, כָּאן שֶׁלֹּא הוֹדָה.
The Gemara answers: Rav Naḥman said that it is not difficult. Here, in the mishna and the first baraita, they discuss a case where the robber admitted his obligation and therefore was required to pay the additional one-fifth payment, and this obligation is transferred to his heir; there, in the latter baraita, it discusses a case where he did not admit his obligation and was never required to pay the additional one-fifth payment.
אִי לֹא הוֹדָה, קֶרֶן נָמֵי לָא מְשַׁלֵּם! וְכִי תֵּימָא: הָכִי נָמֵי דְּלָא מְשַׁלֵּם; וְהָא מִדְּקָא מְהַדַּר אַחוֹמֶשׁ – לְמֵימְרָא דְּקֶרֶן מְשַׁלֵּם!
The Gemara rejects this answer: If the latter baraita discusses a case where he did not admit his obligation, then the halakha would be that the heir would not pay even the principal, as the obligation is not known by anyone. And if you would say that indeed it is so that he does not pay the principal, but isn’t it understood from the fact that the tanna searches for a source to teach the heir’s exemption from only the additional one-fifth payment, that it means to say that he does pay the principal.
וְעוֹד תַּנְיָא, וַעֲדַיִין אֲנִי אוֹמֵר: אֵימָתַי הוּא מְשַׁלֵּם קֶרֶן עַל גֶּזֶל אָבִיו – בִּזְמַן שֶׁנִּשְׁבַּע הוּא וְאָבִיו. אָבִיו וְלֹא הוּא, הוּא וְלֹא אָבִיו, לֹא הוּא וְלֹא אָבִיו – מִנַּיִן? תַּלְמוּד לוֹמַר: גְּזֵילָה וָעוֹשֶׁק, אֲבֵידָה וּפִקָּדוֹן – יֵשׁ תַּלְמוּד.
The Gemara also proves that the heir must pay the principal from the continuation of the same baraita. And further, it is taught in that baraita: And I would still say: When does the heir pay the principal for his father’s robbery? It is only when he and his father both took false oaths. But if his father took a false oath, and not he; or if he took a false oath, but not his father; or if neither he nor his father took false oaths; from where is the heir’s obligation to pay the principal derived? The verse states the following terms: “Robbery,” and “exploitation,” “lost item,” and “deposit” (Leviticus 5:23); and there is a derivation [yesh talmud] here to derive that the heir is obligated to pay the principal in all of these cases.
וְיָתֵיב רַב הוּנָא וְקָאָמַר לְהָא שְׁמַעְתָּא. אֲמַר לֵיהּ רַבָּה בְּרֵיהּ: ״יֵשׁ תַּלְמוּד״ קָאָמַר מָר, אוֹ ״יִשְׁתַּלְמוּ״ קָאָמַר מָר? אֲמַר לֵיהּ: ״יֵשׁ תַּלְמוּד״ קָאָמֵינָא, וּמֵרִיבּוּיָא דִּקְרָאֵי אֲמַרִי.
The Gemara clarifies: And Rav Huna sat and stated this halakha, and Rabba, his son, said to him: Was the Master saying that there is a derivation [yesh talmud], or was the Master saying that they will be paid [yishtalmu]? Rav Huna said to him: I am saying: There is a derivation, and it is from the additional expressions in the verses that I say it can be derived. It is apparent that an heir is obligated to pay the principal, and this refutes Rav Naḥman’s attempted resolution.
אֶלָּא מַאי ״לֹא הוֹדָה״? לֹא הוֹדָה אָבִיו, וְהוֹדָה בְּנוֹ.
Rather, what did Rav Naḥman mean when he suggested that the second baraita is referring to a case where he did not admit his obligation and exempts his heir from paying the additional one-fifth but obligates him to pay the principal? The baraita is referring to a case where the father did not admit, but his son did admit, and therefore he is obligated to pay the principal.
וְנִחַיַּיב בְּנוֹ חוֹמֶשׁ אַשְּׁבוּעָה דִידֵיהּ! אָמְרִי: בְּשֶׁאֵין גְּזֵילָה קַיֶּימֶת. אִי בְּשֶׁאֵין גְּזֵילָה קַיֶּימֶת, אֲפִילּוּ קֶרֶן נָמֵי לָא מְשַׁלֵּם! לָא צְרִיכָא, דְּאִיכָּא אַחְרָיוּת.
The Gemara asks: And let his son be liable to pay the additional one-fifth payment for his own false oath. The Sages say: In the case of the baraita, it is where the stolen item is no longer extant. Although the false oath was taken, it is not the type of obligation for which one must pay an additional one-fifth payment. The Gemara asks: If in the case of the baraita it is where the stolen item is no longer extant, the halakha should be that the heir does not pay even the principal, as the halakha is that while heirs must return an item stolen by their father, they are not obligated to compensate the owner if the item is no longer extant. The Gemara answers: No, the ruling is necessary in a case where there is guaranteed property, i.e., land, which the heirs inherited from the robber. Heirs are obligated to compensate the owner of a stolen item with inherited land, even if the stolen item itself is no longer extant.
וְכִי אִיכָּא אַחְרָיוּת נְכָסִים מַאי הָוֵי? מִלְוָה עַל פֶּה הִיא, וּמִלְוָה עַל פֶּה אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת!
The Gemara asks: And even when there is guaranteed property, i.e., land, what of it? After all, such a debt is legally considered a loan by oral agreement, and the creditor of a loan by oral agreement cannot collect from the heirs of the debtor, nor can he collect from those who purchased land from the debtor.
אָמְרִי:
The Sages say in response:
Today’s daily daf tools:
Delve Deeper
Broaden your understanding of the topics on this daf with classes and podcasts from top women Talmud scholars.
New to Talmud?
Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you.
The Hadran Women’s Tapestry
Meet the diverse women learning Gemara at Hadran and hear their stories.
I started at the beginning of this cycle. No 1 reason, but here’s 5.
In 2019 I read about the upcoming siyum hashas.
There was a sermon at shul about how anyone can learn Talmud.
Talmud references come up when I am studying. I wanted to know more.
Yentl was on telly. Not a great movie but it’s about studying Talmud.
I went to the Hadran website: A new cycle is starting. I’m gonna do this
Cambridge, United Kingdom
Los Angeles, United States
Hadran entered my life after the last Siyum Hashaas, January 2020. I was inspired and challenged simultaneously, having never thought of learning Gemara. With my family’s encouragement, I googled “daf yomi for women”. A perfecr fit!
I especially enjoy when Rabbanit Michelle connects the daf to contemporary issues to share at the shabbat table e.g: looking at the Kohen during duchaning. Toda rabba
Jerusalem, Israel
Oceanside NY, United States
I began daf yomi in January 2020 with Brachot. I had made aliya 6 months before, and one of my post-aliya goals was to complete a full cycle. As a life-long Tanach teacher, I wanted to swim from one side of the Yam shel Torah to the other. Daf yomi was also my sanity through COVID. It was the way to marking the progression of time, and feel that I could grow and accomplish while time stopped.
Givat Zev, Israel
I started learning the daf during Covid. I’d always wanted to learn Talmud but that wasn’t an option for girls in the small town I grew up in and I struggled to help my younger kids with Hebrew homework let alone read a Hebrew text. I decided to start small by listening to the daf podcast on the way to work each morning. Then I joined the Long Island WhatsApp group. Now I go to the siyyums.
Long Island, United States
I have joined the community of daf yomi learners at the start of this cycle. I have studied in different ways – by reading the page, translating the page, attending a local shiur and listening to Rabbanit Farber’s podcasts, depending on circumstances and where I was at the time. The reactions have been positive throughout – with no exception!
Guildford, United Kingdom
I began my Daf Yomi journey on January 5, 2020. I had never learned Talmud before. Initially it struck me as a bunch of inane and arcane details with mind bending logic. I am now smitten. Rabbanit Farber brings the page to life and I am eager to learn with her every day!
Highland Park, United States
I started learning daf in January, 2020, being inspired by watching the Siyyum Hashas in Binyanei Haumah. I wasn’t sure I would be able to keep up with the task. When I went to school, Gemara was not an option. Fast forward to March, 2022, and each day starts with the daf. The challenge is now learning the intricacies of delving into the actual learning. Hadran community, thank you!
Riverdale, NY, United States
I attended the Siyum so that I could tell my granddaughter that I had been there. Then I decided to listen on Spotify and after the siyum of Brachot, Covid and zoom began. It gave structure to my day. I learn with people from all over the world who are now my friends – yet most of us have never met. I can’t imagine life without it. Thank you Rabbanit Michelle.
Raanana, Israel
Minnesota, United States
Jerusalem, Israel
Phoenix, AZ, United States
I heard about the syium in January 2020 & I was excited to start learning then the pandemic started. Learning Daf became something to focus on but also something stressful. As the world changed around me & my family I had to adjust my expectations for myself & the world. Daf Yomi & the Hadran podcast has been something I look forward to every day. It gives me a moment of centering & Judaism daily.
Denver, United States
Philadelphia, United States
I started learning Dec 2019 after reading “If all the Seas Were Ink”. I found
Daily daf sessions of Rabbanit Michelle in her house teaching, I then heard about the siyum and a new cycle starting wow I am in! Afternoon here in Sydney, my family and friends know this is my sacred time to hide away to live zoom and learn. Often it’s hard to absorb and relate then a gem shines touching my heart.
Dover Heights, Australia
I started learning at the start of this cycle, and quickly fell in love. It has become such an important part of my day, enriching every part of my life.
Toronto, Canada
My Daf journey began in August 2012 after participating in the Siyum Hashas where I was blessed as an “enabler” of others. Galvanized into my own learning I recited the Hadran on Shas in January 2020 with Rabbanit Michelle. That Siyum was a highlight in my life. Now, on round two, Daf has become my spiritual anchor to which I attribute manifold blessings.
Englewood NJ, United States
I was exposed to Talmud in high school, but I was truly inspired after my daughter and I decided to attend the Women’s Siyum Shas in 2020. We knew that this was a historic moment. We were blown away, overcome with emotion at the euphoria of the revolution. Right then, I knew I would continue. My commitment deepened with the every-morning Virtual Beit Midrash on Zoom with R. Michelle.
Zichron Yaakov, Israel
I was moved to tears by the Hadran Siyyum HaShas. I have learned Torah all my life, but never connected to learning Gemara on a regular basis until then. Seeing the sheer joy Talmud Torah at the siyyum, I felt compelled to be part of it, and I haven’t missed a day!
It’s not always easy, but it is so worthwhile, and it has strengthened my love of learning. It is part of my life now.
Beit Shemesh, Israel
Bava Kamma 104
שֶׁכְּבָר הוֹדָה מִפִּי עַצְמוֹ!
as he has already admitted his obligation on his own. Rabbi Tarfon concedes that a robber who wishes to repent must go to any length to return the stolen item to its owner. If the mishna here is in accordance with his opinion, it should not have stated its ruling specifically in a case where the robber took a false oath.
אֶלָּא אָמַר רָבָא: שָׁאנֵי מַתְנִיתִין, דְּכֵיוָן דְּיָדַע לְמַאן גַּזְלֵיהּ, וְאוֹדִי לֵיהּ; כֵּיוָן דְּאֶפְשָׁר לְאַהְדּוֹרֵי מָמוֹנָא לְמָרֵיהּ – הָוֵה לֵיהּ כְּמַאן דְּאָמַר לֵיהּ: ״יִהְיוּ לִי בְּיָדְךָ״. הִלְכָּךְ, נִשְׁבַּע – אַף עַל גַּב דְּקָאָמַר לֵיהּ: ״יִהְיוּ לִי בְּיָדְךָ״, כֵּיוָן דְּבָעֵי כַּפָּרָה, לָא סַגִּי עַד דְּמָטֵי לִידֵיהּ; הָא לָא אִישְׁתְּבַע – הָוֵי גַּבֵּיהּ פִּקָּדוֹן, עַד דְּאָתֵי וְשָׁקֵיל לֵיהּ.
Rather, Rava said: The case of the mishna is different, and the halakha stated here could be in accordance with the opinions of both Rabbi Tarfon and Rabbi Akiva. For as the robber knows whom he robbed and admitted to him that he robbed him, since it is possible to return the money to its owner, the robbery victim is as the one who says to the robber: The money you owe me will be kept in your possession as a deposit for me. Therefore, in a case where the robber took a false oath, even though the owner is considered to have said to him: The money you owe me will be kept in your possession as a deposit for me, since the robber requires atonement for his false oath, it is not possible for him to achieve atonement until the money reaches the possession of the robbery victim. But in a case where the robber did not take a false oath, the money is considered as a deposit given to the robber until the owner comes and takes it.
לֹא יִתֵּן לֹא לִבְנוֹ וְלֹא לִשְׁלוּחוֹ. אִיתְּמַר: שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים – רַב חִסְדָּא אָמַר: הָוֵי שָׁלִיחַ, רַבָּה אָמַר: לָא הָוֵי שָׁלִיחַ.
§ The mishna teaches that if the robber wishes to return the stolen item, he may not give the payment to the robbery victim’s son to return it to the robbery victim, nor to his agent. The Gemara comments: It was stated with regard to an agent who was appointed in the presence of witnesses to collect a debt from another: Rav Ḥisda said: Such an agent is a legally recognized agent, so that the debtor is considered to have repaid his debt as soon as he transfers the money to the agent, and the debtor will not be held responsible if an accident occurs causing the loss of the money before the agent gives it to the creditor. Rabba said: Such an agent is not a legally recognized agent, and the debtor remains responsible until the money reaches the creditor’s possession.
רַב חִסְדָּא אָמַר הָוֵי שָׁלִיחַ – לְהָכִי טְרַחִי וְאוֹקְמֵיהּ בְּעֵדִים, דְּלֵיקוּ בִּרְשׁוּתֵיהּ. רַבָּה אָמַר לָא הָוֵי שָׁלִיחַ – הָכִי קָאָמַר: אִינִישׁ מְהֵימְנָא הוּא; אִי סָמְכַתְּ – סְמוֹךְ, אִי בָּעֵית לְשַׁדּוֹרֵיה בִּידֵיהּ – שַׁדַּר בִּידֵיהּ.
The Gemara explains their respective opinions: Rav Ḥisda said that he is an agent because it was for this reason that the creditor took the trouble and appointed the agent in the presence of witnesses, in order to place the matter under the agent’s domain. Rabba said that he is not an agent because this is what the creditor is assumed to be saying to the debtor: This individual is a trustworthy person. If you are willing to rely on him, then rely on him to convey the payment to me. Similarly: If you wish to send the debt in his possession, then send it in his possession.
תְּנַן: הַשּׁוֹאֵל אֶת הַפָּרָה, וְשִׁילְּחָהּ בְּיַד בְּנוֹ, בְּיַד עַבְדּוֹ, בְּיַד שְׁלוּחוֹ; אוֹ בְּיַד בְּנוֹ, בְּיַד עַבְדּוֹ, בְּיַד שְׁלוּחוֹ שֶׁל שׁוֹאֵל; וּמֵתָה – פָּטוּר.
The Gemara cites a mishna that poses a difficulty to the opinion of Rav Ḥisda. We learned in a mishna (Bava Metzia 98b): With regard to one who enters into an agreement to borrow a cow from another, and the owner sent it to the borrower in the possession of his own son, or in the possession of his own slave, or in the possession of his own agent, or if he sent it in the possession of the borrower’s son, or in the possession of the borrower’s slave, or in the possession of the borrower’s agent, and the cow died, the borrower is exempt from paying for the cow, as it never entered his possession.
הַאי שְׁלוּחוֹ הֵיכִי דָמֵי? אִי דְּלֹא (עָשָׂה) [עֲשָׂאוֹ] בְּעֵדִים, מְנָא יָדְעִינַן? אֶלָּא (דְּעָשָׂה) [דַּעֲשָׂאוֹ] בְּעֵדִים – וְקָתָנֵי דְּפָטוּר? קַשְׁיָא לְרַב חִסְדָּא!
The Gemara explains the case of the mishna: With regard to this agent of the borrower, what are the circumstances surrounding his appointment? If the mishna is discussing a case where he did not appoint him as his agent in the presence of witnesses, how do we know that he was appointed as an agent? Rather, it must be that it is a case where he appointed him as his agent in the presence of witnesses, and yet the mishna teaches that the borrower is exempt. This poses a difficulty to the opinion of Rav Ḥisda, who holds that one acquires property through his agent. According to his reasoning, the borrower should be held responsible for the cow once it reaches the possession of the agent.
כִּדְאָמַר רַב חִסְדָּא: בִּשְׂכִירוֹ וּלְקִיטוֹ, הָכָא נָמֵי בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara answers: It is as that which Rav Ḥisda said concerning a different mishna: This is stated with regard to his hired hand or his regular harvester; here also the mishna in Bava Metzia is with regard to his hired hand or his regular harvester. The mishna discusses a case where there were no witnesses to the appointment of the agent, and therefore it does not pose a difficulty to the opinion of Rav Ḥisda. Yet, since it is well known that this person is constantly in the owner’s service, he is assumed to be acting as his agent.
תְּנַן: לֹא יִתֵּן לֹא לִבְנוֹ וְלֹא לִשְׁלוּחוֹ. הַאי שְׁלוּחוֹ הֵיכִי דָמֵי? אִי דְּלָא עֲשָׂאוֹ בְּעֵדִים, מְנָא יָדְעִינַן? אֶלָּא לָאו דַּעֲשָׂאוֹ בְּעֵדִים? תַּרְגְּמַהּ רַב חִסְדָּא: בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara poses a difficulty to the opinion of Rav Ḥisda from the mishna here. We learned in the mishna: If the robber wishes to return the stolen item, he may not give the payment to the robbery victim’s son to return it to the robbery victim, nor to his agent. With regard to this agent of the robbery victim, what are the circumstances surrounding his appointment? If the mishna is discussing a case where the robbery victim did not appoint him as his agent in the presence of witnesses, how do we know that he was appointed as an agent? Rather, is it not discussing a case where the robbery victim appointed him as his agent in the presence of witnesses, and the robber nevertheless does not fulfill his obligation to return the stolen item by giving it to this agent? The Gemara answers: Rav Ḥisda interpreted the ruling of the mishna with regard to his hired hand or his regular harvester, who do not require witnesses to validate their appointment as his agent.
אֲבָל שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים – מַאי, הָכִי נָמֵי דְּהָוֵי שָׁלִיחַ? אַדְּתָנֵי סֵיפָא: אֲבָל נוֹתֵן הוּא לִשְׁלִיחַ בֵּית דִּין; לִפְלוֹג וְלִיתְנֵי בְּדִידֵיהּ – שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, הָכִי נָמֵי דְּהָוֵי שָׁלִיחַ!
The Gemara asks: But with regard to an agent who the robbery victim appointed in the presence of witnesses, what is the halakha? Would one say that indeed, one appointed before witnesses is a legally recognized agent? If that is the case, instead of teaching in the latter clause: But he may give the payment to an agent of the court, which indicates that this is the only agent to whom he may give it, let the mishna make a distinction within the case of an agent appointed by the robbery victim itself and teach: An agent who the robbery victim appointed in the presence of witnesses is indeed a legally recognized agent. If an agent appointed in the presence of witnesses is a legally recognized agent, why does the mishna shift to discuss an agent of the court?
אָמְרִי: לָא פְּסִיקָא לֵיהּ; שְׁלִיחַ בֵּית דִּין, לָא שְׁנָא עֲשָׂאוֹ נִגְזָל וְלָא שְׁנָא עֲשָׂאוֹ גַּזְלָן, הָוֵי שָׁלִיחַ – פְּסִיקָא לֵיהּ. שְׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, דְּכִי עֲשָׂאוֹ נִגְזָל הוּא דְּהָוֵי שָׁלִיחַ, עֲשָׂאוֹ גַּזְלָן לָא הָוֵי שָׁלִיחַ – לָא פְּסִיקָא לֵיהּ.
The Sages say in response: Although the tanna of the mishna could have stated the case of an agent appointed by the robbery victim in the presence of witnesses, he could not have stated this halakha definitively, as with regard to an agent of the court, there is no difference whether the robbery victim appointed him as an agent, i.e., the court appointed him at the behest of the robbery victim, and there is no difference whether the robber appointed him as an agent, i.e., the court appointed him at the behest of the robber. In both cases he is a legally recognized agent. Therefore, he could state the halakha concerning an agent of the court definitively. By contrast, with regard to an agent who was appointed in the presence of witnesses, that only when the robbery victim appointed him as an agent he is an agent, but when the robber appointed him as an agent, he is not an agent, as the robber cannot appoint an agent to receive payment on behalf of the robbery victim, he could not have stated this halakha definitively.
וּלְאַפּוֹקֵי מֵהַאי תַּנָּא – דְּתַנְיָא, רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר: שְׁלִיחַ בֵּית דִּין שֶׁעֲשָׂאוֹ נִגְזָל וְלֹא עֲשָׂאוֹ גַּזְלָן, אוֹ עֲשָׂאוֹ גַּזְלָן וְשָׁלַח הַלָּה וְנָטַל אֶת שֶׁלּוֹ מִיָּדוֹ – פָּטוּר.
The Gemara comments: And this mishna, which rules that an agent of the court is an agent even if appointed only by the robber, serves to exclude the opinion of this following tanna, as it is taught in the Tosefta (10:11) that Rabbi Shimon ben Elazar says: If there was an agent of the court who was appointed by the robbery victim but not appointed by the robber, or an agent who was appointed by the robber, and subsequently the other, i.e., the robbery victim, sent for and took his payment from the agent’s possession, the robber is exempt from paying for any accidental damage to the payment during the delivery. Rabbi Shimon ben Elazar states that the robber is exempt from paying for any accidental damage when he gave the payment to a court agent he appointed only if the robbery victim sent for and took possession of the payment. This is in opposition to the ruling of the mishna that the robber is exempt whenever he gives the payment to an agent of the court.
רַבִּי יוֹחָנָן וְרַבִּי אֶלְעָזָר דְאָמְרִי תַּרְוַיְיהוּ: שָׁלִיחַ שֶׁעֲשָׂאוֹ בְּעֵדִים, הָוֵי שָׁלִיחַ. וְאִם תֹּאמַר מִשְׁנָתֵנוּ;
The Gemara cites the opinion of two other amora’im with regard to the status of an agent appointed in the presence of witnesses. Rabbi Yoḥanan and Rabbi Elazar both say: An agent who was appointed in the presence of witnesses is a legally recognized agent. And if you say: Our mishna contradicts this assertion, as it rules that the stolen item is not considered returned if given to an agent of the robbery victim, this is of no concern.
בְּמַמְצִיא לוֹ שָׁלִיחַ, דַּאֲמַר לֵיהּ: ״אִית לִי זוּזֵי גַּבֵּי פְלָנְיָא, וְלָא קָא מְשַׁדַּר לְהוּ. אִיתְחֲזִי לֵיהּ, דִּלְמָא אִינִישׁ הוּא דְּלָא מַשְׁכַּח לְשַׁדּוֹרֵי לֵיהּ״.
The Gemara explains: The mishna does not mean to disqualify an agent appointed by the robbery victim in the presence of witnesses, but rather is referring to a case where the robbery victim provides the robber with an agent without appointing him in the presence of witnesses, in that he says to someone: I have money owed to me that is currently with so-and-so, and he is not sending it. Present yourself to him, as perhaps he wishes to return it but cannot find a person with whom to send it.
אִי נָמֵי, כִּדְרַב חִסְדָּא – בִּשְׂכִירוֹ וּלְקִיטוֹ.
The Gemara offers a second explanation: Alternatively, it is in accordance with the statement of Rav Ḥisda, that the mishna is not discussing a case where he appointed the agent in the presence of witnesses, but it is still known that the agent acts on behalf of the robbery victim, as the ruling of the mishna is stated with regard to the victim’s hired hand or his regular harvester. That is why the robber is still liable after having given the payment to the agent.
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל:
§ The Gemara discusses another matter relating to the appointment of an agent. Rav Yehuda says that Shmuel says:
אֵין מְשַׁלְּחִין מָעוֹת בִּדְיוֹקְנֵי, וַאֲפִילּוּ עֵדִים חֲתוּמִים עָלֶיהָ. וְרַבִּי יוֹחָנָן אָמַר: אִם עֵדִים חֲתוּמִים עָלֶיהָ – מְשַׁלְּחִין.
One who owes a debt may not send money with another to the creditor on the basis of a figure [deyokani] or sign used in place of a signature that is associated with the creditor. The possession of this sign on the part of the other is not sufficient proof that he has been appointed as an agent. And this is the halakha even if witnesses verifying that this is the creditor’s sign are signed on it. And Rabbi Yoḥanan says: If there are witnesses signed on it, one may send the money with the other.
אָמְרִי: לִשְׁמוּאֵל מַאי תַּקַּנְתָּא? כִּי הָא דְּרַבִּי אַבָּא הָוֵי מַסֵּיק זוּזֵי בִּדְרַב יוֹסֵף בַּר חָמָא, אֲמַר לֵיהּ לְרַב סָפְרָא: בַּהֲדֵי דְּאָתֵית, אַיְיתִינְהוּ נִיהֲלִי. כִּי אֲזַל לְהָתָם, אֲמַר לֵיהּ רָבָא בְּרֵיהּ: מִי כָּתַב לָךְ: ״הִתְקַבַּלְתִּי״? אֲמַר לֵיהּ: לָא. אִי הָכִי, זִיל בְּרֵישָׁא, וְיִכְתּוֹב לָךְ ״הִתְקַבַּלְתִּי״.
The Sages say: According to Shmuel, what is the rectification, i.e., what recourse is available to one who wishes to collect a debt without traveling to the debtor’s location? The Gemara answers: One may act like that course of action of Rabbi Abba, who was owed money by Rav Yosef bar Ḥama. Rabbi Abba said to Rav Safra: When you come back from Rabbi Yosef bar Ḥama’s locale, bring my money to me. When Rav Safra went there, Rava, Rav Yosef bar Ḥama’s son, said to him: Did Rabbi Abba write you a document stating: I have received payment, so that my father will have proof that he has absolved himself of the debt? Rav Safra said to him: No. Rava responded: If so, first go to him and let him write you a document stating: I have received payment, and then my father will pay you.
לְסוֹף אֲמַר לֵיהּ: אִי כָּתַב לָךְ נָמֵי ״הִתְקַבַּלְתִּי״, לָאו כְּלוּם הוּא; דִּלְמָא אַדְּאָתֵית שָׁכֵיב רַבִּי אַבָּא, וְנָפְלוּ זוּזֵי קַמֵּי יַתְמֵי, וְ״הִתְקַבַּלְתִּי״ דְּרַבִּי אַבָּא לָאו כְּלוּם הוּא. אֲמַר לֵיהּ: וְאֶלָּא מַאי תַּקַּנְתָּא? זִיל נַקְנִינְהוּ לָךְ אַגַּב אַרְעָא, וְתָא אַתְּ כְּתוֹב לַן ״הִתְקַבַּלְתִּי״.
Ultimately, Rava said to him: Even if he writes you a document stating: I have received payment, it is nothing, since perhaps by the time you arrive back here, Rabbi Abba will have died and the money will fall before his orphans as an inheritance, and the document stating: I have received payment, that was written by Rabbi Abba, will be nothing, as the debt is no longer owed to him, but rather, to his heirs. Rav Safra said to him: Rather, what is the rectification? Rava replied: Go, and Rabbi Abba will transfer to you the rights to the money owed to him by means of acquisition of land from him, and then you should come and write for us a document stating: I have received payment. Then, we will pay you.
כִּי הָא דְּרַב פָּפָּא הֲוָה מַסֵּיק תְּרֵיסַר אַלְפֵי זוּזֵי בֵּי חוֹזָאֵי, אַקְנִינְהוּ נִיהֲלֵיהּ לְרַב שְׁמוּאֵל בַּר אַבָּא אַגַּב אַסִּיפָּא דְבֵיתֵיהּ. כִּי אֲתָא, נְפַק לְאַפֵּיהּ עַד תְּוָאךְ.
The Gemara notes: And this is like that course of action of Rav Pappa, who was owed twelve thousand dinars by a resident of Bei Ḥozai, and he transferred his claim to the money to Rav Shmuel bar Abba by means of the acquisition of the threshold of his house. When Rav Shmuel bar Abba came from Bei Ḥozai with the money in hand, Rav Pappa went out as far as Tavakh toward him in his excitement to receive the money.
נָתַן לוֹ אֶת הַקֶּרֶן וְכוּ׳. אַלְמָא חוֹמֶשׁ מָמוֹנָא הוּא, וְאִם מָיֵית – מְשַׁלְּמִי לֵיהּ יוֹרְשִׁין.
§ The mishna teaches that if the robber gave the robbery victim the principal value of the stolen item, but did not give him the additional one-fifth payment required of a robber, he is not required to pursue the robbery victim in order to return the additional one-fifth payment. The Gemara comments: Apparently, the additional one-fifth payment is considered monetary restitution rather than a fine. And accordingly, if the robber died, the heirs of the robber must pay it to the robbery victim.
וּתְנַן נָמֵי: נָתַן אֶת הַקֶּרֶן וְנִשְׁבַּע עַל הַחוֹמֶשׁ – הֲרֵי מוֹסִיף חוֹמֶשׁ עַל חוֹמֶשׁ. אַלְמָא חוּמְשָׁא מָמוֹנָא הוּא.
And we also learned in the mishna that if the robber gave the robbery victim the principal and takes a false oath to him concerning the additional one-fifth payment, asserting that he had already paid it, the robber adds an additional one-fifth payment apart from the additional one-fifth payment about which he had taken a false oath. Apparently, the additional one-fifth payment is monetary restitution, as one is obligated to pay an additional one-fifth for taking a false oath only with regard to monetary restitution, not with regard to fines.
וְתַנְיָא נָמֵי הָכִי: הַגּוֹזֵל אֶת חֲבֵירוֹ, וְנִשְׁבַּע לוֹ, וָמֵת – יוֹרְשִׁין מְשַׁלְּמִים קֶרֶן וָחוֹמֶשׁ, וּפְטוּרִין מִן הָאָשָׁם.
And this is also taught in a baraita: With regard to one who robs another and takes a false oath to him that he did not rob him, and then dies, his heirs pay the principal and additional one-fifth payments to the robbery victim, but are exempt from the obligation to bring the guilt-offering.
וְיוֹרְשִׁין בְּנֵי שַׁלּוֹמֵי חוּמְשָׁא דַּאֲבוּהוֹן הָווּ – אַלְמָא חוֹמֶשׁ מָמוֹנָא הוּא, וּבָעֵי שַׁלּוֹמֵי יוֹרְשִׁין. וּרְמִינְהוּ, עֲדַיִין אֲנִי אוֹמֵר: אֵימָתַי אֵינוֹ מְשַׁלֵּם חוֹמֶשׁ עַל גֶּזֶל אָבִיו – בִּזְמַן שֶׁלֹּא נִשְׁבַּע לֹא הוּא וְלֹא אָבִיו;
The Gemara asks: But are heirs obligated to pay the additional one-fifth payment of their father, indicating that apparently the additional one-fifth payment is monetary restitution, and therefore the heirs must pay it? But one could raise a contradiction from a baraita. After having stated that one is required to add the additional one-fifth payment only for a robbery he commits himself, and not for a robbery committed by his father, the baraita states: I would still say that when does an heir not pay the additional one-fifth payment for his father’s robbery? It is only when neither he nor his father took a false oath.
הוּא וְלֹא אָבִיו, אָבִיו וְלֹא הוּא, הוּא וְאָבִיו – מִנַּיִן? תַּלְמוּד לוֹמַר: ״אֲשֶׁר גָּזָל וַאֲשֶׁר עָשָׁק״ – וְהוּא לֹא גָּזַל וְלֹא עָשַׁק.
But if he took a false oath, but not his father; or if his father took a false oath, but not he; or if he and his father both took false oaths; from where is the heir’s exemption derived? The verse states: “He shall restore the item that he robbed,” and “the item that he has acquired through exploitation” (Leviticus 5:23), and in this case the heir did not rob and did not exploit. Since the verse states the obligation to pay the additional one-fifth payment when discussing one who robbed or exploited another, and the heir has done neither, he is exempt from payment. This baraita states that heirs are not obligated to pay the additional one-fifth payment.
אָמַר רַב נַחְמָן: לָא קַשְׁיָא; כָּאן שֶׁהוֹדָה, כָּאן שֶׁלֹּא הוֹדָה.
The Gemara answers: Rav Naḥman said that it is not difficult. Here, in the mishna and the first baraita, they discuss a case where the robber admitted his obligation and therefore was required to pay the additional one-fifth payment, and this obligation is transferred to his heir; there, in the latter baraita, it discusses a case where he did not admit his obligation and was never required to pay the additional one-fifth payment.
אִי לֹא הוֹדָה, קֶרֶן נָמֵי לָא מְשַׁלֵּם! וְכִי תֵּימָא: הָכִי נָמֵי דְּלָא מְשַׁלֵּם; וְהָא מִדְּקָא מְהַדַּר אַחוֹמֶשׁ – לְמֵימְרָא דְּקֶרֶן מְשַׁלֵּם!
The Gemara rejects this answer: If the latter baraita discusses a case where he did not admit his obligation, then the halakha would be that the heir would not pay even the principal, as the obligation is not known by anyone. And if you would say that indeed it is so that he does not pay the principal, but isn’t it understood from the fact that the tanna searches for a source to teach the heir’s exemption from only the additional one-fifth payment, that it means to say that he does pay the principal.
וְעוֹד תַּנְיָא, וַעֲדַיִין אֲנִי אוֹמֵר: אֵימָתַי הוּא מְשַׁלֵּם קֶרֶן עַל גֶּזֶל אָבִיו – בִּזְמַן שֶׁנִּשְׁבַּע הוּא וְאָבִיו. אָבִיו וְלֹא הוּא, הוּא וְלֹא אָבִיו, לֹא הוּא וְלֹא אָבִיו – מִנַּיִן? תַּלְמוּד לוֹמַר: גְּזֵילָה וָעוֹשֶׁק, אֲבֵידָה וּפִקָּדוֹן – יֵשׁ תַּלְמוּד.
The Gemara also proves that the heir must pay the principal from the continuation of the same baraita. And further, it is taught in that baraita: And I would still say: When does the heir pay the principal for his father’s robbery? It is only when he and his father both took false oaths. But if his father took a false oath, and not he; or if he took a false oath, but not his father; or if neither he nor his father took false oaths; from where is the heir’s obligation to pay the principal derived? The verse states the following terms: “Robbery,” and “exploitation,” “lost item,” and “deposit” (Leviticus 5:23); and there is a derivation [yesh talmud] here to derive that the heir is obligated to pay the principal in all of these cases.
וְיָתֵיב רַב הוּנָא וְקָאָמַר לְהָא שְׁמַעְתָּא. אֲמַר לֵיהּ רַבָּה בְּרֵיהּ: ״יֵשׁ תַּלְמוּד״ קָאָמַר מָר, אוֹ ״יִשְׁתַּלְמוּ״ קָאָמַר מָר? אֲמַר לֵיהּ: ״יֵשׁ תַּלְמוּד״ קָאָמֵינָא, וּמֵרִיבּוּיָא דִּקְרָאֵי אֲמַרִי.
The Gemara clarifies: And Rav Huna sat and stated this halakha, and Rabba, his son, said to him: Was the Master saying that there is a derivation [yesh talmud], or was the Master saying that they will be paid [yishtalmu]? Rav Huna said to him: I am saying: There is a derivation, and it is from the additional expressions in the verses that I say it can be derived. It is apparent that an heir is obligated to pay the principal, and this refutes Rav Naḥman’s attempted resolution.
אֶלָּא מַאי ״לֹא הוֹדָה״? לֹא הוֹדָה אָבִיו, וְהוֹדָה בְּנוֹ.
Rather, what did Rav Naḥman mean when he suggested that the second baraita is referring to a case where he did not admit his obligation and exempts his heir from paying the additional one-fifth but obligates him to pay the principal? The baraita is referring to a case where the father did not admit, but his son did admit, and therefore he is obligated to pay the principal.
וְנִחַיַּיב בְּנוֹ חוֹמֶשׁ אַשְּׁבוּעָה דִידֵיהּ! אָמְרִי: בְּשֶׁאֵין גְּזֵילָה קַיֶּימֶת. אִי בְּשֶׁאֵין גְּזֵילָה קַיֶּימֶת, אֲפִילּוּ קֶרֶן נָמֵי לָא מְשַׁלֵּם! לָא צְרִיכָא, דְּאִיכָּא אַחְרָיוּת.
The Gemara asks: And let his son be liable to pay the additional one-fifth payment for his own false oath. The Sages say: In the case of the baraita, it is where the stolen item is no longer extant. Although the false oath was taken, it is not the type of obligation for which one must pay an additional one-fifth payment. The Gemara asks: If in the case of the baraita it is where the stolen item is no longer extant, the halakha should be that the heir does not pay even the principal, as the halakha is that while heirs must return an item stolen by their father, they are not obligated to compensate the owner if the item is no longer extant. The Gemara answers: No, the ruling is necessary in a case where there is guaranteed property, i.e., land, which the heirs inherited from the robber. Heirs are obligated to compensate the owner of a stolen item with inherited land, even if the stolen item itself is no longer extant.
וְכִי אִיכָּא אַחְרָיוּת נְכָסִים מַאי הָוֵי? מִלְוָה עַל פֶּה הִיא, וּמִלְוָה עַל פֶּה אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת!
The Gemara asks: And even when there is guaranteed property, i.e., land, what of it? After all, such a debt is legally considered a loan by oral agreement, and the creditor of a loan by oral agreement cannot collect from the heirs of the debtor, nor can he collect from those who purchased land from the debtor.
אָמְרִי:
The Sages say in response:
