Bava Kamma 104

שכבר הודה מפי עצמו

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.

אלא אמר רבא שאני מתניתין דכיון דידע למאן גזליה ואודי ליה כיון דאפשר לאהדורי ממונא למריה הוה ליה כמאן דאמר ליה יהיו לי בידך הלכך נשבע אף על גב דקאמר ליה יהיו לי בידך כיון דבעי כפרה לא סגי עד דמטי לידיה הא לא אישתבע הוי גביה פקדון עד דאתי ושקיל ליה

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.

לא יתן לא לבנו ולא לשלוחו איתמר שליח שעשאו בעדים רב חסדא אמר הוי שליח רבה אמר לא הוי שליח

§ 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.

רב חסדא אמר הוי שליח להכי טרחי ואוקמיה בעדים דליקו ברשותיה רבה אמר לא הוי שליח הכי קאמר איניש מהימנא הוא אי סמכת סמוך אי בעית לשדוריה בידיה שדר בידיה

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.

תנן השואל את הפרה ושילחה ביד בנו ביד עבדו ביד שלוחו או ביד בנו ביד עבדו ביד שלוחו של שואל ומתה פטור

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.

האי שלוחו היכי דמי אי דלא עשה בעדים מנא ידעינן אלא דעשה בעדים וקתני דפטור קשיא לרב חסדא

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.

כדאמר רב חסדא בשכירו ולקיטו הכא נמי בשכירו ולקיטו

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.

תנן לא יתן לא לבנו ולא לשלוחו האי שלוחו היכי דמי אי דלא עשאו בעדים מנא ידעינן אלא לאו דעשאו בעדים תרגמא רב חסדא בשכירו ולקיטו

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.

אבל שליח שעשאו בעדים מאי הכי נמי דהוי שליח אדתני סיפא אבל נותן הוא לשליח בית דין לפלוג וליתני בדידיה שליח שעשאו בעדים הכי נמי דהוי שליח

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?

אמרי לא פסיקא ליה שליח בית דין לא שנא עשאו נגזל ולא שנא עשאו גזלן הוי שליח פסיקא ליה שליח שעשאו בעדים דכי עשאו נגזל הוא דהוי שליח עשאו גזלן לא הוי שליח לא פסיקא ליה

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.

ולאפוקי מהאי תנא דתניא רבי שמעון בן אלעזר אומר שליח בית דין שעשאו נגזל ולא עשאו גזלן או עשאו גזלן ושלח הלה ונטל את שלו מידו פטור

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.

רבי יוחנן ורבי אלעזר דאמרי תרוייהו שליח שעשאו בעדים הוי שליח ואם תאמר משנתנו

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.

בממציא לו שליח דאמר ליה אית לי זוזי גבי פלניא ולא קא משדר להו איתחזי ליה דלמא איניש הוא דלא משכח לשדורי ליה

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.

אי נמי כדרב חסדא בשכירו ולקיטו

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.

אמר רב יהודה אמר שמואל

§ The Gemara discusses another matter relating to the appointment of an agent. Rav Yehuda says that Shmuel says:

אין משלחין מעות בדיוקני ואפילו עדים חתומים עליה ורבי יוחנן אמר אם עדים חתומים עליה משלחין

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.

אמרי לשמואל מאי תקנתא כי הא דרבי אבא הוי מסיק זוזי בדרב יוסף בר חמא אמר ליה לרב ספרא בהדי דאתית אייתינהו ניהלי כי אזל להתם אמר ליה רבא בריה מי כתב לך התקבלתי אמר ליה לא אי הכי זיל ברישא ויכתוב לך התקבלתי

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.

לסוף אמר ליה אי כתב לך נמי התקבלתי לאו כלום הוא דלמא אדאתית שכיב רבי אבא ונפלו זוזי קמי יתמי והתקבלתי דרבי אבא לאו כלום הוא אמר ליה ואלא מאי תקנתא זיל נקנינהו לך אגב ארעא ותא את כתוב לן התקבלתי

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.

כי הא דרב פפא הוה מסיק תריסר אלפי זוזי בי חוזאי אקנינהו ניהליה לרב שמואל בר אבא אגב אסיפא דביתיה כי אתא נפק לאפיה עד תואך

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.

נתן לו את הקרן וכו׳ אלמא חומש ממונא הוא ואם מיית משלמי ליה יורשין

§ 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.

ותנן נמי נתן את הקרן ונשבע על החומש הרי מוסיף חומש על חומש אלמא חומשא ממונא הוא

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.

ותניא נמי הכי הגוזל את חבירו ונשבע לו ומת יורשין משלמים קרן וחומש ופטורין מן האשם

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.

ויורשין בני שלומי חומשא דאבוהון הוו אלמא חומש ממונא הוא ובעי שלומי יורשין ורמינהו עדיין אני אומר אימתי אינו משלם חומש על גזל אביו בזמן שלא נשבע לא הוא ולא אביו

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.

הוא ולא אביו אביו ולא הוא הוא ואביו מנין תלמוד לומר אשר גזל ואשר עשק והוא לא גזל ולא עשק

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.

אמר רב נחמן לא קשיא כאן שהודה כאן שלא הודה

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.

אי לא הודה קרן נמי לא משלם וכי תימא הכי נמי דלא משלם והא מדקא מהדר אחומש למימרא דקרן משלם

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.

ועוד תניא ועדיין אני אומר אימתי הוא משלם קרן על גזל אביו בזמן שנשבע הוא ואביו אביו ולא הוא הוא ולא אביו לא הוא ולא אביו מנין תלמוד לומר גזילה ועושק אבידה ופקדון יש תלמוד

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.

ויתיב רב הונא וקאמר להא שמעתא אמר ליה רבה בריה יש תלמוד קאמר מר או ישתלמו קאמר מר אמר ליה יש תלמוד קאמינא ומריבויא דקראי אמרי

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.

אלא מאי לא הודה לא הודה אביו והודה בנו

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.

ונחייב בנו חומש אשבועה דידיה אמרי בשאין גזילה קיימת אי בשאין גזילה קיימת אפילו קרן נמי לא משלם לא צריכא דאיכא אחריות

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.

וכי איכא אחריות נכסים מאי הוי מלוה על פה היא ומלוה על פה אינו גובה לא מן היורשין ולא מן הלקוחות

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.

אמרי

The Sages say in response: