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January 12, 2024 | ื‘ืณ ื‘ืฉื‘ื˜ ืชืฉืคืดื“

  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

Bava Kamma 71

Today’s daf is sponsored by Karen Bloom in honor of the 5th anniversary of Aliza Gavriella’s bat mitzvah on Parshat Vaera. “Your family is so proud of you and inspired by your commitment to learning the daf. We love you so very much.”

The Mishna obligates those who slaughter or sell on Yom Kippur. The Gemara attributes the Mishna to Rabbi Meir who believes that a person liable to lashes must also pay. But if so, how can the following Mishna be explained as the next Mishna exempts one from death and payment? Rabbi Meir must distinguish between lashes and death – in the case of the death penalty and payments there is a law ofย kim lei bโ€™draba minei, but in lashing and payments it does not apply. But if so, how can we explain braita where Rabbi Meir obligated one to pay if they slaughtered an animal (that they previously stole) on Shabbat? To resolve this, they explain that the braita was established as a case where someone else slaughtered the animal. But if someone else slaughtered, then how can the thief be charged with slaughter and sale, after all, there is no agency when it comes to a transgression?! They explain that in the case of slaughtering a stolen animal, there is an exception to the rule and there is agency for a transgression. The Gemara discusses the other parts of the braita- why the Sages exempt in all three cases (or possibly only two) and why Rabbi Meir obligates in the other two cases (an ox that is stoned and an ox that is slaughtered for foreign work. Rava asks Rav Nachman whether there is a partial payment for theft and slaughter, such as if he slaughtered an ox belonging to two partners and confessed to one of them.

ืืคื™ืœื• ื”ื›ื™ ื›ื™ื•ืŸ ื“ืงื ืžืงื ื™ ืœื™ื” ื‘ื”ื›ื™ ื”ื•ื™ื ืžื›ื™ืจื”


and even so, since the thief transfers ownership to the purchaser in this manner, it is considered a valid sale, and he is required to pay the fourfold or fivefold payment.


ื’ื ื‘ ื•ื˜ื‘ื— ื‘ื™ื•ื ื”ื›ืคื•ืจื™ื ื•ื›ื•ืณ ืืžืจื™ ืืžืื™ ื ื”ื™ ื“ืงื˜ืœื ืœื™ื›ื ืžืœืงื•ืช ืžื™ื”ื ืื™ื›ื ื•ืงื™ื™ืžื ืœืŸ ื“ืื™ื ื• ืœื•ืงื” ื•ืžืฉืœื


ยง The mishna teaches: If one stole an animal and slaughtered it on Yom Kippur he pays the fourfold or fivefold payment. The Sages say, questioning this ruling: Why is he liable to pay it? Although there is no penalty of execution for slaughtering on Yom Kippur, nevertheless there is the penalty of lashes; and we maintain that one is not sentenced to be flogged and obligated to pay for the same act.


ืืžืจื™ ื”ื ืžื ื™ ืจื‘ื™ ืžืื™ืจ ื”ื™ื ื“ืืžืจ ืœื•ืงื” ื•ืžืฉืœื


The Sages say in response: In accordance with whose opinion is this mishna taught? It is taught in accordance with the opinion of Rabbi Meir, who says: One is sentenced to be flogged and obligated to pay for the same action.


ืื™ ืจื‘ื™ ืžืื™ืจ ืืคื™ืœื• ื˜ื‘ื— ื‘ืฉื‘ืช ื•ื›ื™ ืชื™ืžื ืœื•ืงื” ื•ืžืฉืœื ืื™ืช ืœื™ื” ืžืช ื•ืžืฉืœื ืœื™ืช ืœื™ื”


The Gemara asks: If the mishna is in accordance with the opinion of Rabbi Meir, then even if he slaughtered the animal on Shabbat, which is a capital offense, he should be obligated to pay the fourfold or fivefold payment, whereas the mishna (74b) states that in this case he is exempt. And if you would say that Rabbi Meir holds that one is sentenced to be flogged and obligated to pay for the same act, but he does not hold that one is sentenced to the death penalty and obligated to pay for the same act, this is incorrect.


ื•ืœื ื•ื”ืชื ื™ื ื’ื ื‘ ื•ื˜ื‘ื— ื‘ืฉื‘ืช ื’ื ื‘ ื•ื˜ื‘ื— ืœืขื‘ื•ื“ื” ื–ืจื” ื’ื ื‘ ืฉื•ืจ ื”ื ืกืงืœ ื•ื˜ื‘ื—ื• ืžืฉืœื ืืจื‘ืขื” ื•ื—ืžืฉื” ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ ื•ื—ื›ืžื™ื ืคื•ื˜ืจื™ืŸ


And is it correct to say that Rabbi Meir does not maintain that one can be sentenced to the death penalty and to pay for the same act? But isnโ€™t it taught in a baraita: If one stole an animal and slaughtered it on Shabbat, or if he stole an animal and slaughtered it for idol worship, or if he stole an ox that is sentenced to be stoned, from which it is prohibited to derive any benefit, and he slaughtered it, he pays the fourfold or fivefold payment; this is the statement of Rabbi Meir. And the Rabbis exempt him from this payment. Apparently Rabbi Meir maintains that one can be held liable for monetary payment and for capital punishment for the same act, e.g., slaughtering on Shabbat or slaughtering for idol worship.


ืืžืจื™ ื‘ืจ ืžื™ื ื” ื“ื”ื”ื™ื ื“ื”ื ืืชืžืจ ืขืœื” ืืžืจ ืจื‘ื™ ื™ืขืงื‘ ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ื•ืืžืจื™ ืœื” ืืžืจ ืจื‘ื™ ื™ืจืžื™ื” ืืžืจ ืจื‘ื™ ืฉืžืขื•ืŸ ื‘ืŸ ืœืงื™ืฉ ืจื‘ื™ ืื‘ื™ืŸ ื•ืจื‘ื™ ืืœืขื ื•ื›ืœ ื—ื‘ื•ืจืชื ืžืฉืžื™ื” ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ืืžืจื™ ื‘ื˜ื•ื‘ื— ืขืœ ื™ื“ื™ ืื—ืจ


The Sages say in response: Stand apart from this baraita, i.e., this baraita should not be understood in a straightforward manner, as it was stated concerning it: Rabbi Yaโ€™akov says that Rabbi Yoแธฅanan says, and some say it was Rabbi Yirmeya who says that Rabbi Shimon ben Lakish says, and Rabbi Avin and Rabbi Ela and the entire group of disciples of Rabbi Yoแธฅanan also say in the name of Rabbi Yoแธฅanan: The baraita is speaking of a thief who slaughters the stolen animal through the agency of another person, i.e., he instructed another to slaughter it, and that agent did so on Shabbat or for idolatrous purposes. The thief pays the fourfold or fivefold payment because he himself did not commit a capital offense.


ื•ื›ื™ ื–ื” ื—ื•ื˜ื ื•ื–ื” ืžืชื—ื™ื™ื‘


The Gemara asks: How can it be that a thief is liable to pay the fourfold or fivefold payment if another person slaughters the stolen animal for him? But is it so that this one sins and that one becomes liable?


ืืžืจ ืจื‘ื ืฉืื ื™ ื”ื›ื ื“ืืžืจ ืงืจื ื•ื˜ื‘ื—ื• ื•ืžื›ืจื• ืžื” ืžื›ื™ืจื” ืขืœ ื™ื“ื™ ืื—ืจ ืืฃ ื˜ื‘ื™ื—ื” ืขืœ ื™ื“ื™ ืื—ืจ


The Gemara provides several reasons why in the case of fourfold or fivefold payment it is possible for the thief to be liable for anotherโ€™s actions. Rava said: It is different here, as the verse states: โ€œAnd slaughter it or sell itโ€ (Exodus 21:37), thereby juxtaposing the two acts of slaughtering and selling. It is derived that just as there is liability for the fourfold or fivefold payment through selling, which by definition is performed by means of another party, so too, there is liability for slaughtering when it is performed by means of another party.


ื“ื‘ื™ ืจื‘ื™ ื™ืฉืžืขืืœ ืชื ื ืื• ืœืจื‘ื•ืช ืืช ื”ืฉืœื™ื— ื“ื‘ื™ ื—ื–ืงื™ื” ืชื ื ืชื—ืช ืœืจื‘ื•ืช ืืช ื”ืฉืœื™ื—


The school of Rabbi Yishmael teaches: The word โ€œorโ€ in the phrase: โ€œAnd slaughter it or sell it,โ€ serves to include a case in which the agent slaughters or sells the animal at the behest of the thief. The school of แธคizkiyya teaches: The separate word โ€œforโ€ [taแธฅat] in the phrase: โ€œHe shall pay five oxen for an ox, and four sheep for a sheep,โ€ which could have been avoided by using the mere prefix of the letter beit, serves to include a case in which the agent slaughters the animal on behalf of the thief.


ืžืชืงื™ืฃ ืœื” ืžืจ ื–ื•ื˜ืจื ืžื™ ืื™ื›ื ืžื™ื“ื™ ื“ืื™ืœื• ืขื‘ื™ื“ ืื™ื”ื• ืœื ืžื™ื—ื™ื™ื‘ ื•ืขื‘ื™ื“ ืฉืœื™ื— ื•ืžื™ื—ื™ื™ื‘


Mar Zutra objects to this explanation of the baraita: Is there anything with regard to which if one performs it himself he is not liable, and if his agent performs it on his behalf one is liable? How is it possible for an agent to have more power than the one who appointed him? Can it be that if the thief himself slaughtered the animal on Shabbat he would be exempt, whereas if he has it slaughtered by another he is liable?


ืืžืจ ืœื™ื” ืจื‘ ืืฉื™ ื”ืชื ืœืื• ืžืฉื•ื ื“ืœื ืžื™ื—ื™ื™ื‘ ื”ื•ื ืืœื ื“ืงื ืœื™ื” ื‘ื“ืจื‘ื” ืžื™ื ื™ื”


Rav Ashi said to him: There, in the case of the thief who slaughters a stolen animal on Shabbat, it is not because he is not liable that he does not pay the fourfold or fivefold payment; rather, he is liable but he is excused from payment because he receives the greater of the two punishments, i.e., execution, for desecrating Shabbat. When he appoints an agent he has no liability for desecrating Shabbat, and therefore he pays for the slaughter.


ื•ืื™ ื‘ื˜ื•ื‘ื— ืขืœ ื™ื“ื™ ืื—ืจ ืžืื™ ื˜ืขืžื ื“ืจื‘ื ืŸ ื“ืคื˜ืจื™


The Gemara asks: But if the baraita is speaking about a thief who slaughters through the agency of another person, what is the reason of the Rabbis, who exempt the thief from payment? The thief did not himself do any act for which he is liable to receive the death penalty.


ืืžืจื™ ืžืืŸ ื—ื›ืžื™ื ืจื‘ื™ ืฉืžืขื•ืŸ ื“ืืžืจ ืฉื—ื™ื˜ื” ืฉืื™ื ื” ืจืื•ื™ื” ืœื ืฉืžื” ืฉื—ื™ื˜ื”


The Sages say in explanation: Who are these Rabbis of the baraita? It is Rabbi Shimon, who said: The legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is not considered an act of slaughter. Since slaughtering on Shabbat or slaughtering for idolatrous purposes does not render the meat fit for consumption, Rabbi Shimon rules that there is no liability for the fourfold or fivefold payment.


ืืžืจื™ ื‘ืฉืœืžื ืขื‘ื•ื“ื” ื–ืจื” ื•ืฉื•ืจ ื”ื ืกืงืœ ืฉื—ื™ื˜ื” ืฉืื™ื ื” ืจืื•ื™ื” ื”ื™ื ืืœื ืฉื‘ืช ืฉื—ื™ื˜ื” ืจืื•ื™ื” ื”ื™ื ื“ืชื ืŸ ื”ืฉื•ื—ื˜ ื‘ืฉื‘ืช ื•ื‘ื™ื•ื ื”ื›ืคื•ืจื™ื ืืฃ ืขืœ ืคื™ ืฉืžืชื—ื™ื™ื‘ ื‘ื ืคืฉื• ืฉื—ื™ื˜ืชื• ื›ืฉื™ืจื”


The Sages say, questioning this explanation: Granted, slaughtering for idol worship and slaughtering an ox that is sentenced to be stoned are cases of slaughter that is not fit, as in both of these cases it is prohibited to derive any benefit from the animalโ€™s flesh. But slaughtering on Shabbat is a fit slaughter. As we learned in a mishna (แธคullin 14a): In the case of one who slaughters an animal on Shabbat or on Yom Kippur, although he is liable to receive the death penalty for desecrating Shabbat, his slaughter is valid and the meat may be eaten.


ืืžืจื™ ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ


The Sages say in response: Rabbi Shimon holds in accordance with the opinion of Rabbi Yoแธฅanan HaSandlar, who disagrees with that mishna and prohibits eating the meat of an animal slaughtered on Shabbat.


ื“ืชื ืŸ ื”ืžื‘ืฉืœ ื‘ืฉื‘ืช ื‘ืฉื•ื’ื’ ื™ืื›ืœ ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ื‘ืฉื•ื’ื’ ื™ืื›ืœ ื‘ืžื•ืฆืื™ ืฉื‘ืช ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ืขื•ืœืžื™ืช


As we learned in a mishna (Terumot 2:3): In the case of one who cooks food on Shabbat, if he acted unwittingly he may eat the food, but if he acted intentionally he may not eat it; this is the statement of Rabbi Meir. Rabbi Yehuda says: If he acted unwittingly he may eat the food only upon the conclusion of Shabbat, and if he acted intentionally he may not eat it ever, although others may partake of it.


ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ ืื•ืžืจ ื‘ืฉื•ื’ื’ ื™ืื›ืœ ืœืžื•ืฆืื™ ืฉื‘ืช ืœืื—ืจื™ื ื•ืœื ืœื• ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ืขื•ืœืžื™ืช ืœื ืœื• ื•ืœื ืœืื—ืจื™ื


Rabbi Yoแธฅanan HaSandlar says: If he cooked the food unwittingly it may be eaten upon the conclusion of Shabbat by others only, but not by him; and if he acted intentionally it may not be eaten ever, neither by him nor by others. Slaughter, like cooking, is a desecration of Shabbat that entails the death penalty. It follows that Rabbi Yoแธฅanan HaSandlar maintains that the meat of an animal intentionally slaughtered on Shabbat may never be eaten. If so, this is a slaughter that does not render the meat fit for consumption, and therefore according to the opinion of Rabbi Shimon there is no fourfold or fivefold payment.


ืžืื™ ื˜ืขืžื ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ ื›ื“ื“ืจื™ืฉ ืจื‘ื™ ื—ื™ื™ื ืืคื™ืชื—ื ื“ื‘ื™ ื ืฉื™ืื” ื•ืฉืžืจืชื ืืช ื”ืฉื‘ืช ื›ื™ ืงื“ืฉ ื”ื•ื ืœื›ื ืžื” ืงื“ืฉ ืืกื•ืจ ื‘ืื›ื™ืœื” ืืฃ ืžืขืฉื” ืฉื‘ืช ืืกื•ืจื™ืŸ ื‘ืื›ื™ืœื”


The Gemara asks: What is the reason for the opinion of Rabbi Yoแธฅanan HaSandlar? The Gemara explains: This is as Rabbi แธคiyya taught at the entrance to the house of the Nasi. It is written: โ€œAnd you shall observe Shabbat, for it is holy [kodesh] to you; one who profanes it shall be put to deathโ€ (Exodus 31:14). Just as it is prohibited to eat a sacred item consecrated to the Temple [kodesh], so too is it prohibited to eat food produced though action that desecrates Shabbat.


ืื™ ืžื” ืงื“ืฉ ืืกื•ืจ ื‘ื”ื ืื” ืืฃ ืžืขืฉื” ืฉื‘ืช ืืกื•ืจ ื‘ื”ื ืื” ืชืœืžื•ื“ ืœื•ืžืจ ืœื›ื ืฉืœื›ื ื™ื”ื


The Gemara asks: If so, perhaps the analogy should be extended: Just as it is prohibited to derive benefit from a sacred item, so too should it be prohibited to derive benefit from a product of an action that desecrates Shabbat. The Gemara answers: The verse states: โ€œIt is holy to youโ€ (Exodus 31:14), indicating that it shall be yours for deriving benefit. Although food cooked on Shabbat may not be eaten, it is permitted to benefit from it in other ways.


ื™ื›ื•ืœ ืืคื™ืœื• ื‘ืฉื•ื’ื’ ืชืœืžื•ื“ ืœื•ืžืจ ืžื—ืœืœื™ื” ืžื•ืช ื™ื•ืžืช ื‘ืžื–ื™ื“ ืืžืจืชื™ ืœืš ื•ืœื ื‘ืฉื•ื’ื’


The Gemara further asks: Based on the analogy between a sacred item and the product of an action that desecrates Shabbat, one might have thought that even if the action were performed unwittingly it should be prohibited to consume the product, like a sacred item. To counter this, the verse states: โ€œOne who profanes it shall be put to deathโ€ (Exodus 31:14), indicating that it is with regard to one who desecrates Shabbat intentionally that I said this analogy to you, as the verse clearly is referring to one who is liable to receive the death penalty, but not one who desecrates Shabbat unwittingly, who is not executed.


ืคืœื™ื’ื™ ื‘ื” ืจื‘ ืื—ื ื•ืจื‘ื™ื ื ื—ื“ ืืžืจ ืžืขืฉื” ืฉื‘ืช ื“ืื•ืจื™ื™ืชื ื•ื—ื“ ืืžืจ ืžืขืฉื” ืฉื‘ืช ื“ืจื‘ื ืŸ


The Gemara comments: Rav Aแธฅa and Ravina disagree with regard to this matter. One said that the product of an action that constitutes a desecration of Shabbat is forbidden by Torah law, and one said that the product of an action that constitutes a desecration of Shabbat is forbidden by rabbinic law.


ืžืืŸ ื“ืืžืจ ื“ืื•ืจื™ื™ืชื ื›ื“ืืžืจืŸ ื•ืžืืŸ ื“ืืžืจ ื“ืจื‘ื ืŸ ืืžืจ ืงืจื ืงื“ืฉ ื”ื•ื ื”ื•ื ืงื“ืฉ ื•ืื™ืŸ ืžืขืฉื™ื• ืงื“ืฉ


The Gemara elaborates: The one who says it is forbidden by Torah law explains as we said, that the prohibition is based on the verse as interpreted by Rabbi แธคiyya. And the one who says it is forbidden by rabbinic law would say that the verse states: โ€œIt is holy,โ€ from which he infers: It, the day itself, is holy but the products of its prohibited actions are not holy, and therefore they are not compared to sacred items and may be eaten by Torah law.


ื‘ืฉืœืžื ืœืžืืŸ ื“ืืžืจ ื“ืื•ืจื™ื™ืชื ืืžื˜ื•


The Gemara asks: Granted, according to the one who said that products of a prohibited act are prohibited by Torah law, it is for


ืœื”ื›ื™ ืคื˜ืจื™ ืจื‘ื ืŸ ืืœื ืœืžืืŸ ื“ืืžืจ ื“ืจื‘ื ืŸ ืืžืื™ ืคื˜ืจื™ ืจื‘ื ืŸ


this reason that the Rabbis exempt the thief from the fourfold or fivefold payment when he slaughters the animal on Shabbat, as slaughter on Shabbat does not render the meat permitted for consumption. But according to the one who says that the product of a prohibited act on Shabbat may be eaten by Torah law but is forbidden by rabbinic law, why do the Rabbis exempt the thief when he appoints an agent to slaughter the animal for him and the agent performs this action on Shabbat?


ืืฉืืจื ืืขื‘ื•ื“ื” ื–ืจื” ื•ืฉื•ืจ ื”ื ืกืงืœ


The Gemara answers: When the Rabbis exempt him from the fourfold or fivefold payment, they are not referring to the case where the thiefโ€™s agent slaughters the animal on Shabbat. Rather, they were speaking of the rest of the cases listed in the baraita, namely, an agent who slaughters the animal for idol worship and one who slaughters an ox that is sentenced to be stoned.


ื•ืจื‘ื™ ืžืื™ืจ ืืžืื™ ืžื—ื™ื™ื‘ ืฉื•ื—ื˜ ืœืขื‘ื•ื“ื” ื–ืจื”


The Gemara asks another question with regard to the interpretation of the baraita presented above: And with regard to Rabbi Meir, granted he maintains that the legal status of an act of slaughter not fit for accomplishing its full ritual purpose is nevertheless considered an act of slaughter. But why is the thief liable to pay the fourfold or fivefold payment when his agent slaughters the animal for idol worship?


ื›ื™ื•ืŸ ื“ืฉื—ื˜ ื‘ื” ืคื•ืจืชื ืืกืจื” ืื™ื“ืš ืื™ืกื•ืจื™ ื”ื ืื” ื”ื•ื ื•ืœื ื“ืžืจื™ื” ืงื ื˜ื‘ื— ื•ืœื ื“ื™ื“ื™ื” ืงื ื˜ื‘ื—


Once he slaughtered the animal a bit, at the very start of the act of slaughter, he has prohibited the animal, with regard to deriving benefit, as an animal sacrificed to idolatry. When he slaughters the other part it is already prohibited with regard to deriving benefit, which means that it is not an animal that belongs to its owner that he slaughters, and it is not an animal that belongs to him that he slaughters. Since deriving benefit from the animal is prohibited, it has no value; therefore, there is no ownership.


ืืžืจ ืจื‘ื ื‘ืื•ืžืจ ื‘ื’ืžืจ ื–ื‘ื™ื—ื” ื”ื•ื ืขื•ื‘ื“ื”


Rava said: This is referring to one who says prior to the slaughter that only with the completion of the slaughter does he worship the idolatry. Therefore, the prohibition does not take effect until that stage, which is also when the liability to pay the fourfold or fivefold payment is incurred.


ืฉื•ืจ ื”ื ืกืงืœ ืื™ืกื•ืจื™ ื”ื ืื” ื ื™ื ื”ื• ืœืื• ื“ืžืจื™ื” ืงื ื˜ื‘ื— ื•ืœืื• ื“ื™ื“ื™ื” ืงื ื˜ื‘ื—


The Gemara raises a question with regard to another of the cases of the baraita: An ox that is sentenced to be stoned is an item from which deriving benefit is prohibited. Consequently, when a thief or his agent slaughters this animal, it is not an animal that belongs to its owner that he slaughters, and it is not an animal that belongs to him that he slaughters. Why does Rabbi Meir obligate him to pay the fourfold or fivefold payment?


ืืžืจ ืจื‘ื ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉืžืกืจื• ืœืฉื•ืžืจ ื•ื”ื–ื™ืง ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ื”ื•ืขื“ ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ื ื’ืžืจ ื“ื™ื ื• ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ืจื‘ื™ ืžืื™ืจ ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ืขืงื‘ ื•ืกื‘ืจ ืœื” ื›ืจื‘ื™ ืฉืžืขื•ืŸ


Rava said: With what are we dealing here? This is a case where the owners entrusted the ox to a bailee and the ox fatally injured someone while in the baileeโ€™s house, and it was forewarned while in the baileeโ€™s house, and it was sentenced to be stoned while in the baileeโ€™s house, and the thief then stole it from the baileeโ€™s house and slaughtered it. Rava continues: And Rabbi Meir holds in accordance with the opinion of Rabbi Yaโ€™akov, and he also holds in accordance with the opinion of Rabbi Shimon.


ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ืขืงื‘ ื“ืืžืจ ืืฃ ืžืฉื ื’ืžืจ ื“ื™ื ื• ื”ื—ื–ื™ืจื• ืฉื•ืžืจ ืœื‘ืขืœื™ื ืžื•ื—ื–ืจ


He holds in accordance with the opinion of Rabbi Yaโ€™akov, who says: Even after the ox was sentenced to be stoned, if the bailee returned it to its owners before it was killed, it is considered returned. Although the ox is now worthless, as no benefit may be derived from it, since the bailee returned a physically intact ox, the owner has no claim against him.


ื•ืกื‘ืจ ืœื” ื›ืจื‘ื™ ืฉืžืขื•ืŸ ื“ืืžืจ ื“ื‘ืจ ื”ื’ื•ืจื ืœืžืžื•ืŸ ื›ืžืžื•ืŸ ื“ืžื™


And Rabbi Meir also holds in accordance with the opinion of Rabbi Shimon, who says: An item whose elimination causes financial loss is considered to have monetary value. With regard to an item that is otherwise worthless, if its elimination causes monetary loss due to the fact that it must be replaced, it is considered to be of value. In this case, although the ox is worthless in and of itself, when the thief slaughters it he prevents the bailee from returning it intact to the owner and causes him to be obligated to pay the owner the value of the ox before it was sentenced to be stoned. Consequently, the thief must reimburse the bailee, as the ox effectively has value for that bailee.


ื“ืชื ืŸ ืจื‘ื™ ืฉืžืขื•ืŸ ืื•ืžืจ ืงื“ืฉื™ื ืฉื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชืŸ ื—ื™ื™ื‘ ืืœืžื ื“ื‘ืจ ื”ื’ื•ืจื ืœืžืžื•ืŸ ื›ืžืžื•ืŸ ื“ืžื™


As we learned in a mishna (74b): Rabbi Shimon says: In the case of sacrificial animals for which the owner bears financial responsibility to replace any of them with another animal if it is lost or it dies, the thief is obligated to pay the fourfold or fivefold payment if he slaughters the animal. Although one is generally not liable to pay the double payment for stealing consecrated items, Rabbi Shimon maintains that this case is different, since as a result of the animalโ€™s theft the owner sustains a loss by being required to substitute another animal for it. Since the animalโ€™s loss has financial ramifications for the owner apart from any inherent value it has, it has value for him. Apparently, Rabbi Shimon holds that an item whose elimination causes financial loss is considered to have monetary value.


ืืžืจ ืจื‘ ื›ื”ื ื ืืžืจื™ืชื ืœืฉืžืขืชื ืงืžื™ื” ื“ืจื‘ ื–ื‘ื™ื“ ืžื ื”ืจื“ืขื ืžื™ ืžืฆื™ืช ืžื•ืงืžืช ืžืชื ื™ืชื™ืŸ ื›ืจื‘ื™ ืžืื™ืจ ื•ืœื ื›ืจื‘ื™ ืฉืžืขื•ืŸ ื•ื”ื ืงืชื ื™ ืกื™ืคื ืจื‘ื™ ืฉืžืขื•ืŸ ืคื•ื˜ืจ ื‘ืฉื ื™ ืืœื• ืžื›ืœืœ ื“ื‘ื›ื•ืœื” ืžืชื ื™ืชื™ืŸ ืžื•ื“ื”


Rav Kahana said: I recited this halakha, according to which the mishna follows the opinion of Rabbi Meir, in front of Rav Zevid of Nehardeโ€™a, and I asked him: Is it correct to say that you can establish the mishna in accordance with the opinion of Rabbi Meir, and not in accordance with the opinion of Rabbi Shimon? But isnโ€™t it taught in the last clause of the mishna: Rabbi Shimon exempts the thief from the fourfold or fivefold payment in these last two cases. One can learn by inference that in all the rest of the cases in the mishna, apart from these two, Rabbi Shimon concedes that the thief pays the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ืœื ืžื›ืœืœ ื“ืžื•ื“ื” ื‘ื˜ื‘ื— ื•ืžื›ืจ ืœืจืคื•ืื” ื•ืœื›ืœื‘ื™ื


Rav Zevid said to him: No; that is not the correct inference from the mishna. Rather, by inference one can learn only that Rabbi Shimon concedes that the thief pays the fourfold or fivefold payment in the cases mentioned immediately prior to this one, specifically in a case where the thief slaughtered or sold the animal in order that it should be used for medicinal purposes or for feeding to dogs. Therefore, it can be correct to establish the mishna in accordance with the opinion of Rabbi Meir and not in accordance with the opinion of Rabbi Shimon.


ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ื›ื•ืณ ื‘ืขื ืžื™ื ื™ื” ืจื‘ื ืžืจื‘ ื ื—ืžืŸ ื’ื ื‘ ืฉื•ืจ ืฉืœ ืฉื ื™ ืฉื•ืชืคื™ืŸ ื•ื˜ื‘ื—ื• ื•ื”ื•ื“ื” ืœืื—ื“ ืžื”ืŸ ืžื”ื•


ยง The mishna teaches: If one stole an animal of his fatherโ€™s and then slaughtered or sold it, and afterward his father died, he pays the fourfold or fivefold payment to his fatherโ€™s other heirs. Rava raised a dilemma before Rav Naแธฅman: If one stole an ox belonging to two partners and slaughtered it, and subsequently admitted the theft to one of the partners, which means that he is exempt from paying the fourfold or fivefold payment to that partner, in accordance with the principle that one who admits his own guilt is exempt from fines, what is the halakha with regard to payment to the other partner?


ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืœื ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ืื• ื“ืœืžื ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืืคื™ืœื• ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ืืžืจ ืœื™ื” ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืœื ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ


The Gemara explains the sides of the dilemma: The Merciful One states in the Torah: โ€œHe shall pay five oxen for an oxโ€ (Exodus 21:37), which indicates five full oxen, but not five half-oxen. Or perhaps when the Merciful One states โ€œfive oxen,โ€ this means that even five half-oxen must be paid in a case of this kind. Rav Naแธฅman said to Rava: The Merciful One states: โ€œFive oxen,โ€ which means five full oxen, but not five half-oxen.


ืื™ืชื™ื‘ื™ื” ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ืื—ืจ ื›ืš ืžืช ืื‘ื™ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ื•ื”ื ื”ื›ื ื›ื™ื•ืŸ ื“ืžืช ืื‘ื™ื• ื›ืžื• ืฉืงื“ื ื•ื”ื•ื“ื” ืœืื—ื“ ืžื”ืŸ ื“ืžื™ ื•ืงืชื ื™ ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


Rava raised an objection to him from the mishna: If one stole an animal of his fatherโ€™s and then slaughtered or sold it, and afterward his father died, he pays the fourfold or fivefold payment. But here, since his father died and the thief has inherited part of the stolen animal himself, it is similar to the case of one who stole from two partners and went ahead and admitted the theft to one of them, i.e., to himself. In the case of the mishna he is exempt from paying the portion of the fine that is for himself, and yet the mishna teaches that he pays the other heirs their portion of the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉืขืžื“ ืื‘ื™ื• ื‘ื“ื™ืŸ


Rav Naแธฅman said to Rava: With what are we dealing here? With a case where his father stood against his son the thief in his trial, and the son was convicted for the theft and slaughter of his fatherโ€™s animal. In this case, the liability to pay the fourfold or fivefold payment was established before the fatherโ€™s death, and at that time the payment was five full oxen.


ืื‘ืœ ืœื ืขืžื“ ื‘ื“ื™ืŸ ืžืื™ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ืื™ ื”ื›ื™ ืื“ืชื ื™ ืกื™ืคื ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ื ื™ืคืœื•ื’ ื‘ื“ื™ื“ื™ื” ื‘ืžื” ื“ื‘ืจื™ื ืืžื•ืจื™ื ื›ืฉืขืžื“ ื‘ื“ื™ืŸ ืื‘ืœ ืœื ืขืžื“ ื‘ื“ื™ืŸ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


Rava asked him: And if the thief had not yet stood trial before the fatherโ€™s death, what would be the halakha, according to your opinion? Would he not be required to pay the fourfold or fivefold payment? If so, rather than teaching in the latter clause of the mishna (74b): If one stole his fatherโ€™s animal and the father died, and afterward he slaughtered or sold it, he does not pay the fourfold or fivefold payment; let the mishna make a distinction within the same type of case, as follows: In what case is this statement, i.e., that the thief is required to pay the fourfold or fivefold payment, said? It is when the thief stood trial in his fatherโ€™s lifetime; but if he did not stand trial in his fatherโ€™s lifetime he does not pay the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ื”ื›ื™ ื ืžื™ ืื™ื™ื“ื™ ื“ื ืกื™ื‘ ืจื™ืฉื ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ืื—ืจ ื›ืš ืžืช ืื‘ื™ื• ื ืกื™ื‘ ืกื™ืคื ื ืžื™ ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ืื‘ื™ื• ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ


Rav Naแธฅman said to him: Indeed, the mishna could have mentioned that case. However, since the tanna of the mishna has to cite the first clause, which discusses one who stole an animal of his fatherโ€™s and slaughtered or sold it, and afterward his father died, he cites the latter clause as well, by means of a similar case: If one stole his fatherโ€™s animal and his father died, and afterward he slaughtered or sold the animal.


ืœืฆืคืจื ืืžืจ ืœื™ื” ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืืคื™ืœื• ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ื•ื”ืื™ ื“ืœื ืืžืจื™ ืœืš ื‘ืื•ืจืชื


This discussion between Rava and Rav Naแธฅman occurred in the evening. On the following morning, Rav Naแธฅman retracted his statement and said to Rava: The Merciful One states: โ€œFive oxen,โ€ and this means that even five half-oxen are included. Rav Naแธฅman explained his change of mind: And the reason that I did not say this to you last night


  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

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Bava Kamma 71

The William Davidson Talmud | Powered by Sefaria

Bava Kamma 71

ืืคื™ืœื• ื”ื›ื™ ื›ื™ื•ืŸ ื“ืงื ืžืงื ื™ ืœื™ื” ื‘ื”ื›ื™ ื”ื•ื™ื ืžื›ื™ืจื”


and even so, since the thief transfers ownership to the purchaser in this manner, it is considered a valid sale, and he is required to pay the fourfold or fivefold payment.


ื’ื ื‘ ื•ื˜ื‘ื— ื‘ื™ื•ื ื”ื›ืคื•ืจื™ื ื•ื›ื•ืณ ืืžืจื™ ืืžืื™ ื ื”ื™ ื“ืงื˜ืœื ืœื™ื›ื ืžืœืงื•ืช ืžื™ื”ื ืื™ื›ื ื•ืงื™ื™ืžื ืœืŸ ื“ืื™ื ื• ืœื•ืงื” ื•ืžืฉืœื


ยง The mishna teaches: If one stole an animal and slaughtered it on Yom Kippur he pays the fourfold or fivefold payment. The Sages say, questioning this ruling: Why is he liable to pay it? Although there is no penalty of execution for slaughtering on Yom Kippur, nevertheless there is the penalty of lashes; and we maintain that one is not sentenced to be flogged and obligated to pay for the same act.


ืืžืจื™ ื”ื ืžื ื™ ืจื‘ื™ ืžืื™ืจ ื”ื™ื ื“ืืžืจ ืœื•ืงื” ื•ืžืฉืœื


The Sages say in response: In accordance with whose opinion is this mishna taught? It is taught in accordance with the opinion of Rabbi Meir, who says: One is sentenced to be flogged and obligated to pay for the same action.


ืื™ ืจื‘ื™ ืžืื™ืจ ืืคื™ืœื• ื˜ื‘ื— ื‘ืฉื‘ืช ื•ื›ื™ ืชื™ืžื ืœื•ืงื” ื•ืžืฉืœื ืื™ืช ืœื™ื” ืžืช ื•ืžืฉืœื ืœื™ืช ืœื™ื”


The Gemara asks: If the mishna is in accordance with the opinion of Rabbi Meir, then even if he slaughtered the animal on Shabbat, which is a capital offense, he should be obligated to pay the fourfold or fivefold payment, whereas the mishna (74b) states that in this case he is exempt. And if you would say that Rabbi Meir holds that one is sentenced to be flogged and obligated to pay for the same act, but he does not hold that one is sentenced to the death penalty and obligated to pay for the same act, this is incorrect.


ื•ืœื ื•ื”ืชื ื™ื ื’ื ื‘ ื•ื˜ื‘ื— ื‘ืฉื‘ืช ื’ื ื‘ ื•ื˜ื‘ื— ืœืขื‘ื•ื“ื” ื–ืจื” ื’ื ื‘ ืฉื•ืจ ื”ื ืกืงืœ ื•ื˜ื‘ื—ื• ืžืฉืœื ืืจื‘ืขื” ื•ื—ืžืฉื” ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ ื•ื—ื›ืžื™ื ืคื•ื˜ืจื™ืŸ


And is it correct to say that Rabbi Meir does not maintain that one can be sentenced to the death penalty and to pay for the same act? But isnโ€™t it taught in a baraita: If one stole an animal and slaughtered it on Shabbat, or if he stole an animal and slaughtered it for idol worship, or if he stole an ox that is sentenced to be stoned, from which it is prohibited to derive any benefit, and he slaughtered it, he pays the fourfold or fivefold payment; this is the statement of Rabbi Meir. And the Rabbis exempt him from this payment. Apparently Rabbi Meir maintains that one can be held liable for monetary payment and for capital punishment for the same act, e.g., slaughtering on Shabbat or slaughtering for idol worship.


ืืžืจื™ ื‘ืจ ืžื™ื ื” ื“ื”ื”ื™ื ื“ื”ื ืืชืžืจ ืขืœื” ืืžืจ ืจื‘ื™ ื™ืขืงื‘ ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ื•ืืžืจื™ ืœื” ืืžืจ ืจื‘ื™ ื™ืจืžื™ื” ืืžืจ ืจื‘ื™ ืฉืžืขื•ืŸ ื‘ืŸ ืœืงื™ืฉ ืจื‘ื™ ืื‘ื™ืŸ ื•ืจื‘ื™ ืืœืขื ื•ื›ืœ ื—ื‘ื•ืจืชื ืžืฉืžื™ื” ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ืืžืจื™ ื‘ื˜ื•ื‘ื— ืขืœ ื™ื“ื™ ืื—ืจ


The Sages say in response: Stand apart from this baraita, i.e., this baraita should not be understood in a straightforward manner, as it was stated concerning it: Rabbi Yaโ€™akov says that Rabbi Yoแธฅanan says, and some say it was Rabbi Yirmeya who says that Rabbi Shimon ben Lakish says, and Rabbi Avin and Rabbi Ela and the entire group of disciples of Rabbi Yoแธฅanan also say in the name of Rabbi Yoแธฅanan: The baraita is speaking of a thief who slaughters the stolen animal through the agency of another person, i.e., he instructed another to slaughter it, and that agent did so on Shabbat or for idolatrous purposes. The thief pays the fourfold or fivefold payment because he himself did not commit a capital offense.


ื•ื›ื™ ื–ื” ื—ื•ื˜ื ื•ื–ื” ืžืชื—ื™ื™ื‘


The Gemara asks: How can it be that a thief is liable to pay the fourfold or fivefold payment if another person slaughters the stolen animal for him? But is it so that this one sins and that one becomes liable?


ืืžืจ ืจื‘ื ืฉืื ื™ ื”ื›ื ื“ืืžืจ ืงืจื ื•ื˜ื‘ื—ื• ื•ืžื›ืจื• ืžื” ืžื›ื™ืจื” ืขืœ ื™ื“ื™ ืื—ืจ ืืฃ ื˜ื‘ื™ื—ื” ืขืœ ื™ื“ื™ ืื—ืจ


The Gemara provides several reasons why in the case of fourfold or fivefold payment it is possible for the thief to be liable for anotherโ€™s actions. Rava said: It is different here, as the verse states: โ€œAnd slaughter it or sell itโ€ (Exodus 21:37), thereby juxtaposing the two acts of slaughtering and selling. It is derived that just as there is liability for the fourfold or fivefold payment through selling, which by definition is performed by means of another party, so too, there is liability for slaughtering when it is performed by means of another party.


ื“ื‘ื™ ืจื‘ื™ ื™ืฉืžืขืืœ ืชื ื ืื• ืœืจื‘ื•ืช ืืช ื”ืฉืœื™ื— ื“ื‘ื™ ื—ื–ืงื™ื” ืชื ื ืชื—ืช ืœืจื‘ื•ืช ืืช ื”ืฉืœื™ื—


The school of Rabbi Yishmael teaches: The word โ€œorโ€ in the phrase: โ€œAnd slaughter it or sell it,โ€ serves to include a case in which the agent slaughters or sells the animal at the behest of the thief. The school of แธคizkiyya teaches: The separate word โ€œforโ€ [taแธฅat] in the phrase: โ€œHe shall pay five oxen for an ox, and four sheep for a sheep,โ€ which could have been avoided by using the mere prefix of the letter beit, serves to include a case in which the agent slaughters the animal on behalf of the thief.


ืžืชืงื™ืฃ ืœื” ืžืจ ื–ื•ื˜ืจื ืžื™ ืื™ื›ื ืžื™ื“ื™ ื“ืื™ืœื• ืขื‘ื™ื“ ืื™ื”ื• ืœื ืžื™ื—ื™ื™ื‘ ื•ืขื‘ื™ื“ ืฉืœื™ื— ื•ืžื™ื—ื™ื™ื‘


Mar Zutra objects to this explanation of the baraita: Is there anything with regard to which if one performs it himself he is not liable, and if his agent performs it on his behalf one is liable? How is it possible for an agent to have more power than the one who appointed him? Can it be that if the thief himself slaughtered the animal on Shabbat he would be exempt, whereas if he has it slaughtered by another he is liable?


ืืžืจ ืœื™ื” ืจื‘ ืืฉื™ ื”ืชื ืœืื• ืžืฉื•ื ื“ืœื ืžื™ื—ื™ื™ื‘ ื”ื•ื ืืœื ื“ืงื ืœื™ื” ื‘ื“ืจื‘ื” ืžื™ื ื™ื”


Rav Ashi said to him: There, in the case of the thief who slaughters a stolen animal on Shabbat, it is not because he is not liable that he does not pay the fourfold or fivefold payment; rather, he is liable but he is excused from payment because he receives the greater of the two punishments, i.e., execution, for desecrating Shabbat. When he appoints an agent he has no liability for desecrating Shabbat, and therefore he pays for the slaughter.


ื•ืื™ ื‘ื˜ื•ื‘ื— ืขืœ ื™ื“ื™ ืื—ืจ ืžืื™ ื˜ืขืžื ื“ืจื‘ื ืŸ ื“ืคื˜ืจื™


The Gemara asks: But if the baraita is speaking about a thief who slaughters through the agency of another person, what is the reason of the Rabbis, who exempt the thief from payment? The thief did not himself do any act for which he is liable to receive the death penalty.


ืืžืจื™ ืžืืŸ ื—ื›ืžื™ื ืจื‘ื™ ืฉืžืขื•ืŸ ื“ืืžืจ ืฉื—ื™ื˜ื” ืฉืื™ื ื” ืจืื•ื™ื” ืœื ืฉืžื” ืฉื—ื™ื˜ื”


The Sages say in explanation: Who are these Rabbis of the baraita? It is Rabbi Shimon, who said: The legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is not considered an act of slaughter. Since slaughtering on Shabbat or slaughtering for idolatrous purposes does not render the meat fit for consumption, Rabbi Shimon rules that there is no liability for the fourfold or fivefold payment.


ืืžืจื™ ื‘ืฉืœืžื ืขื‘ื•ื“ื” ื–ืจื” ื•ืฉื•ืจ ื”ื ืกืงืœ ืฉื—ื™ื˜ื” ืฉืื™ื ื” ืจืื•ื™ื” ื”ื™ื ืืœื ืฉื‘ืช ืฉื—ื™ื˜ื” ืจืื•ื™ื” ื”ื™ื ื“ืชื ืŸ ื”ืฉื•ื—ื˜ ื‘ืฉื‘ืช ื•ื‘ื™ื•ื ื”ื›ืคื•ืจื™ื ืืฃ ืขืœ ืคื™ ืฉืžืชื—ื™ื™ื‘ ื‘ื ืคืฉื• ืฉื—ื™ื˜ืชื• ื›ืฉื™ืจื”


The Sages say, questioning this explanation: Granted, slaughtering for idol worship and slaughtering an ox that is sentenced to be stoned are cases of slaughter that is not fit, as in both of these cases it is prohibited to derive any benefit from the animalโ€™s flesh. But slaughtering on Shabbat is a fit slaughter. As we learned in a mishna (แธคullin 14a): In the case of one who slaughters an animal on Shabbat or on Yom Kippur, although he is liable to receive the death penalty for desecrating Shabbat, his slaughter is valid and the meat may be eaten.


ืืžืจื™ ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ


The Sages say in response: Rabbi Shimon holds in accordance with the opinion of Rabbi Yoแธฅanan HaSandlar, who disagrees with that mishna and prohibits eating the meat of an animal slaughtered on Shabbat.


ื“ืชื ืŸ ื”ืžื‘ืฉืœ ื‘ืฉื‘ืช ื‘ืฉื•ื’ื’ ื™ืื›ืœ ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ื‘ืฉื•ื’ื’ ื™ืื›ืœ ื‘ืžื•ืฆืื™ ืฉื‘ืช ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ืขื•ืœืžื™ืช


As we learned in a mishna (Terumot 2:3): In the case of one who cooks food on Shabbat, if he acted unwittingly he may eat the food, but if he acted intentionally he may not eat it; this is the statement of Rabbi Meir. Rabbi Yehuda says: If he acted unwittingly he may eat the food only upon the conclusion of Shabbat, and if he acted intentionally he may not eat it ever, although others may partake of it.


ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ ืื•ืžืจ ื‘ืฉื•ื’ื’ ื™ืื›ืœ ืœืžื•ืฆืื™ ืฉื‘ืช ืœืื—ืจื™ื ื•ืœื ืœื• ื‘ืžื–ื™ื“ ืœื ื™ืื›ืœ ืขื•ืœืžื™ืช ืœื ืœื• ื•ืœื ืœืื—ืจื™ื


Rabbi Yoแธฅanan HaSandlar says: If he cooked the food unwittingly it may be eaten upon the conclusion of Shabbat by others only, but not by him; and if he acted intentionally it may not be eaten ever, neither by him nor by others. Slaughter, like cooking, is a desecration of Shabbat that entails the death penalty. It follows that Rabbi Yoแธฅanan HaSandlar maintains that the meat of an animal intentionally slaughtered on Shabbat may never be eaten. If so, this is a slaughter that does not render the meat fit for consumption, and therefore according to the opinion of Rabbi Shimon there is no fourfold or fivefold payment.


ืžืื™ ื˜ืขืžื ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืกื ื“ืœืจ ื›ื“ื“ืจื™ืฉ ืจื‘ื™ ื—ื™ื™ื ืืคื™ืชื—ื ื“ื‘ื™ ื ืฉื™ืื” ื•ืฉืžืจืชื ืืช ื”ืฉื‘ืช ื›ื™ ืงื“ืฉ ื”ื•ื ืœื›ื ืžื” ืงื“ืฉ ืืกื•ืจ ื‘ืื›ื™ืœื” ืืฃ ืžืขืฉื” ืฉื‘ืช ืืกื•ืจื™ืŸ ื‘ืื›ื™ืœื”


The Gemara asks: What is the reason for the opinion of Rabbi Yoแธฅanan HaSandlar? The Gemara explains: This is as Rabbi แธคiyya taught at the entrance to the house of the Nasi. It is written: โ€œAnd you shall observe Shabbat, for it is holy [kodesh] to you; one who profanes it shall be put to deathโ€ (Exodus 31:14). Just as it is prohibited to eat a sacred item consecrated to the Temple [kodesh], so too is it prohibited to eat food produced though action that desecrates Shabbat.


ืื™ ืžื” ืงื“ืฉ ืืกื•ืจ ื‘ื”ื ืื” ืืฃ ืžืขืฉื” ืฉื‘ืช ืืกื•ืจ ื‘ื”ื ืื” ืชืœืžื•ื“ ืœื•ืžืจ ืœื›ื ืฉืœื›ื ื™ื”ื


The Gemara asks: If so, perhaps the analogy should be extended: Just as it is prohibited to derive benefit from a sacred item, so too should it be prohibited to derive benefit from a product of an action that desecrates Shabbat. The Gemara answers: The verse states: โ€œIt is holy to youโ€ (Exodus 31:14), indicating that it shall be yours for deriving benefit. Although food cooked on Shabbat may not be eaten, it is permitted to benefit from it in other ways.


ื™ื›ื•ืœ ืืคื™ืœื• ื‘ืฉื•ื’ื’ ืชืœืžื•ื“ ืœื•ืžืจ ืžื—ืœืœื™ื” ืžื•ืช ื™ื•ืžืช ื‘ืžื–ื™ื“ ืืžืจืชื™ ืœืš ื•ืœื ื‘ืฉื•ื’ื’


The Gemara further asks: Based on the analogy between a sacred item and the product of an action that desecrates Shabbat, one might have thought that even if the action were performed unwittingly it should be prohibited to consume the product, like a sacred item. To counter this, the verse states: โ€œOne who profanes it shall be put to deathโ€ (Exodus 31:14), indicating that it is with regard to one who desecrates Shabbat intentionally that I said this analogy to you, as the verse clearly is referring to one who is liable to receive the death penalty, but not one who desecrates Shabbat unwittingly, who is not executed.


ืคืœื™ื’ื™ ื‘ื” ืจื‘ ืื—ื ื•ืจื‘ื™ื ื ื—ื“ ืืžืจ ืžืขืฉื” ืฉื‘ืช ื“ืื•ืจื™ื™ืชื ื•ื—ื“ ืืžืจ ืžืขืฉื” ืฉื‘ืช ื“ืจื‘ื ืŸ


The Gemara comments: Rav Aแธฅa and Ravina disagree with regard to this matter. One said that the product of an action that constitutes a desecration of Shabbat is forbidden by Torah law, and one said that the product of an action that constitutes a desecration of Shabbat is forbidden by rabbinic law.


ืžืืŸ ื“ืืžืจ ื“ืื•ืจื™ื™ืชื ื›ื“ืืžืจืŸ ื•ืžืืŸ ื“ืืžืจ ื“ืจื‘ื ืŸ ืืžืจ ืงืจื ืงื“ืฉ ื”ื•ื ื”ื•ื ืงื“ืฉ ื•ืื™ืŸ ืžืขืฉื™ื• ืงื“ืฉ


The Gemara elaborates: The one who says it is forbidden by Torah law explains as we said, that the prohibition is based on the verse as interpreted by Rabbi แธคiyya. And the one who says it is forbidden by rabbinic law would say that the verse states: โ€œIt is holy,โ€ from which he infers: It, the day itself, is holy but the products of its prohibited actions are not holy, and therefore they are not compared to sacred items and may be eaten by Torah law.


ื‘ืฉืœืžื ืœืžืืŸ ื“ืืžืจ ื“ืื•ืจื™ื™ืชื ืืžื˜ื•


The Gemara asks: Granted, according to the one who said that products of a prohibited act are prohibited by Torah law, it is for


ืœื”ื›ื™ ืคื˜ืจื™ ืจื‘ื ืŸ ืืœื ืœืžืืŸ ื“ืืžืจ ื“ืจื‘ื ืŸ ืืžืื™ ืคื˜ืจื™ ืจื‘ื ืŸ


this reason that the Rabbis exempt the thief from the fourfold or fivefold payment when he slaughters the animal on Shabbat, as slaughter on Shabbat does not render the meat permitted for consumption. But according to the one who says that the product of a prohibited act on Shabbat may be eaten by Torah law but is forbidden by rabbinic law, why do the Rabbis exempt the thief when he appoints an agent to slaughter the animal for him and the agent performs this action on Shabbat?


ืืฉืืจื ืืขื‘ื•ื“ื” ื–ืจื” ื•ืฉื•ืจ ื”ื ืกืงืœ


The Gemara answers: When the Rabbis exempt him from the fourfold or fivefold payment, they are not referring to the case where the thiefโ€™s agent slaughters the animal on Shabbat. Rather, they were speaking of the rest of the cases listed in the baraita, namely, an agent who slaughters the animal for idol worship and one who slaughters an ox that is sentenced to be stoned.


ื•ืจื‘ื™ ืžืื™ืจ ืืžืื™ ืžื—ื™ื™ื‘ ืฉื•ื—ื˜ ืœืขื‘ื•ื“ื” ื–ืจื”


The Gemara asks another question with regard to the interpretation of the baraita presented above: And with regard to Rabbi Meir, granted he maintains that the legal status of an act of slaughter not fit for accomplishing its full ritual purpose is nevertheless considered an act of slaughter. But why is the thief liable to pay the fourfold or fivefold payment when his agent slaughters the animal for idol worship?


ื›ื™ื•ืŸ ื“ืฉื—ื˜ ื‘ื” ืคื•ืจืชื ืืกืจื” ืื™ื“ืš ืื™ืกื•ืจื™ ื”ื ืื” ื”ื•ื ื•ืœื ื“ืžืจื™ื” ืงื ื˜ื‘ื— ื•ืœื ื“ื™ื“ื™ื” ืงื ื˜ื‘ื—


Once he slaughtered the animal a bit, at the very start of the act of slaughter, he has prohibited the animal, with regard to deriving benefit, as an animal sacrificed to idolatry. When he slaughters the other part it is already prohibited with regard to deriving benefit, which means that it is not an animal that belongs to its owner that he slaughters, and it is not an animal that belongs to him that he slaughters. Since deriving benefit from the animal is prohibited, it has no value; therefore, there is no ownership.


ืืžืจ ืจื‘ื ื‘ืื•ืžืจ ื‘ื’ืžืจ ื–ื‘ื™ื—ื” ื”ื•ื ืขื•ื‘ื“ื”


Rava said: This is referring to one who says prior to the slaughter that only with the completion of the slaughter does he worship the idolatry. Therefore, the prohibition does not take effect until that stage, which is also when the liability to pay the fourfold or fivefold payment is incurred.


ืฉื•ืจ ื”ื ืกืงืœ ืื™ืกื•ืจื™ ื”ื ืื” ื ื™ื ื”ื• ืœืื• ื“ืžืจื™ื” ืงื ื˜ื‘ื— ื•ืœืื• ื“ื™ื“ื™ื” ืงื ื˜ื‘ื—


The Gemara raises a question with regard to another of the cases of the baraita: An ox that is sentenced to be stoned is an item from which deriving benefit is prohibited. Consequently, when a thief or his agent slaughters this animal, it is not an animal that belongs to its owner that he slaughters, and it is not an animal that belongs to him that he slaughters. Why does Rabbi Meir obligate him to pay the fourfold or fivefold payment?


ืืžืจ ืจื‘ื ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉืžืกืจื• ืœืฉื•ืžืจ ื•ื”ื–ื™ืง ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ื”ื•ืขื“ ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ื ื’ืžืจ ื“ื™ื ื• ื‘ื‘ื™ืช ืฉื•ืžืจ ื•ืจื‘ื™ ืžืื™ืจ ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ืขืงื‘ ื•ืกื‘ืจ ืœื” ื›ืจื‘ื™ ืฉืžืขื•ืŸ


Rava said: With what are we dealing here? This is a case where the owners entrusted the ox to a bailee and the ox fatally injured someone while in the baileeโ€™s house, and it was forewarned while in the baileeโ€™s house, and it was sentenced to be stoned while in the baileeโ€™s house, and the thief then stole it from the baileeโ€™s house and slaughtered it. Rava continues: And Rabbi Meir holds in accordance with the opinion of Rabbi Yaโ€™akov, and he also holds in accordance with the opinion of Rabbi Shimon.


ืกื‘ืจ ืœื” ื›ืจื‘ื™ ื™ืขืงื‘ ื“ืืžืจ ืืฃ ืžืฉื ื’ืžืจ ื“ื™ื ื• ื”ื—ื–ื™ืจื• ืฉื•ืžืจ ืœื‘ืขืœื™ื ืžื•ื—ื–ืจ


He holds in accordance with the opinion of Rabbi Yaโ€™akov, who says: Even after the ox was sentenced to be stoned, if the bailee returned it to its owners before it was killed, it is considered returned. Although the ox is now worthless, as no benefit may be derived from it, since the bailee returned a physically intact ox, the owner has no claim against him.


ื•ืกื‘ืจ ืœื” ื›ืจื‘ื™ ืฉืžืขื•ืŸ ื“ืืžืจ ื“ื‘ืจ ื”ื’ื•ืจื ืœืžืžื•ืŸ ื›ืžืžื•ืŸ ื“ืžื™


And Rabbi Meir also holds in accordance with the opinion of Rabbi Shimon, who says: An item whose elimination causes financial loss is considered to have monetary value. With regard to an item that is otherwise worthless, if its elimination causes monetary loss due to the fact that it must be replaced, it is considered to be of value. In this case, although the ox is worthless in and of itself, when the thief slaughters it he prevents the bailee from returning it intact to the owner and causes him to be obligated to pay the owner the value of the ox before it was sentenced to be stoned. Consequently, the thief must reimburse the bailee, as the ox effectively has value for that bailee.


ื“ืชื ืŸ ืจื‘ื™ ืฉืžืขื•ืŸ ืื•ืžืจ ืงื“ืฉื™ื ืฉื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชืŸ ื—ื™ื™ื‘ ืืœืžื ื“ื‘ืจ ื”ื’ื•ืจื ืœืžืžื•ืŸ ื›ืžืžื•ืŸ ื“ืžื™


As we learned in a mishna (74b): Rabbi Shimon says: In the case of sacrificial animals for which the owner bears financial responsibility to replace any of them with another animal if it is lost or it dies, the thief is obligated to pay the fourfold or fivefold payment if he slaughters the animal. Although one is generally not liable to pay the double payment for stealing consecrated items, Rabbi Shimon maintains that this case is different, since as a result of the animalโ€™s theft the owner sustains a loss by being required to substitute another animal for it. Since the animalโ€™s loss has financial ramifications for the owner apart from any inherent value it has, it has value for him. Apparently, Rabbi Shimon holds that an item whose elimination causes financial loss is considered to have monetary value.


ืืžืจ ืจื‘ ื›ื”ื ื ืืžืจื™ืชื ืœืฉืžืขืชื ืงืžื™ื” ื“ืจื‘ ื–ื‘ื™ื“ ืžื ื”ืจื“ืขื ืžื™ ืžืฆื™ืช ืžื•ืงืžืช ืžืชื ื™ืชื™ืŸ ื›ืจื‘ื™ ืžืื™ืจ ื•ืœื ื›ืจื‘ื™ ืฉืžืขื•ืŸ ื•ื”ื ืงืชื ื™ ืกื™ืคื ืจื‘ื™ ืฉืžืขื•ืŸ ืคื•ื˜ืจ ื‘ืฉื ื™ ืืœื• ืžื›ืœืœ ื“ื‘ื›ื•ืœื” ืžืชื ื™ืชื™ืŸ ืžื•ื“ื”


Rav Kahana said: I recited this halakha, according to which the mishna follows the opinion of Rabbi Meir, in front of Rav Zevid of Nehardeโ€™a, and I asked him: Is it correct to say that you can establish the mishna in accordance with the opinion of Rabbi Meir, and not in accordance with the opinion of Rabbi Shimon? But isnโ€™t it taught in the last clause of the mishna: Rabbi Shimon exempts the thief from the fourfold or fivefold payment in these last two cases. One can learn by inference that in all the rest of the cases in the mishna, apart from these two, Rabbi Shimon concedes that the thief pays the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ืœื ืžื›ืœืœ ื“ืžื•ื“ื” ื‘ื˜ื‘ื— ื•ืžื›ืจ ืœืจืคื•ืื” ื•ืœื›ืœื‘ื™ื


Rav Zevid said to him: No; that is not the correct inference from the mishna. Rather, by inference one can learn only that Rabbi Shimon concedes that the thief pays the fourfold or fivefold payment in the cases mentioned immediately prior to this one, specifically in a case where the thief slaughtered or sold the animal in order that it should be used for medicinal purposes or for feeding to dogs. Therefore, it can be correct to establish the mishna in accordance with the opinion of Rabbi Meir and not in accordance with the opinion of Rabbi Shimon.


ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ื›ื•ืณ ื‘ืขื ืžื™ื ื™ื” ืจื‘ื ืžืจื‘ ื ื—ืžืŸ ื’ื ื‘ ืฉื•ืจ ืฉืœ ืฉื ื™ ืฉื•ืชืคื™ืŸ ื•ื˜ื‘ื—ื• ื•ื”ื•ื“ื” ืœืื—ื“ ืžื”ืŸ ืžื”ื•


ยง The mishna teaches: If one stole an animal of his fatherโ€™s and then slaughtered or sold it, and afterward his father died, he pays the fourfold or fivefold payment to his fatherโ€™s other heirs. Rava raised a dilemma before Rav Naแธฅman: If one stole an ox belonging to two partners and slaughtered it, and subsequently admitted the theft to one of the partners, which means that he is exempt from paying the fourfold or fivefold payment to that partner, in accordance with the principle that one who admits his own guilt is exempt from fines, what is the halakha with regard to payment to the other partner?


ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืœื ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ืื• ื“ืœืžื ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืืคื™ืœื• ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ืืžืจ ืœื™ื” ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืœื ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ


The Gemara explains the sides of the dilemma: The Merciful One states in the Torah: โ€œHe shall pay five oxen for an oxโ€ (Exodus 21:37), which indicates five full oxen, but not five half-oxen. Or perhaps when the Merciful One states โ€œfive oxen,โ€ this means that even five half-oxen must be paid in a case of this kind. Rav Naแธฅman said to Rava: The Merciful One states: โ€œFive oxen,โ€ which means five full oxen, but not five half-oxen.


ืื™ืชื™ื‘ื™ื” ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ืื—ืจ ื›ืš ืžืช ืื‘ื™ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ื•ื”ื ื”ื›ื ื›ื™ื•ืŸ ื“ืžืช ืื‘ื™ื• ื›ืžื• ืฉืงื“ื ื•ื”ื•ื“ื” ืœืื—ื“ ืžื”ืŸ ื“ืžื™ ื•ืงืชื ื™ ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


Rava raised an objection to him from the mishna: If one stole an animal of his fatherโ€™s and then slaughtered or sold it, and afterward his father died, he pays the fourfold or fivefold payment. But here, since his father died and the thief has inherited part of the stolen animal himself, it is similar to the case of one who stole from two partners and went ahead and admitted the theft to one of them, i.e., to himself. In the case of the mishna he is exempt from paying the portion of the fine that is for himself, and yet the mishna teaches that he pays the other heirs their portion of the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉืขืžื“ ืื‘ื™ื• ื‘ื“ื™ืŸ


Rav Naแธฅman said to Rava: With what are we dealing here? With a case where his father stood against his son the thief in his trial, and the son was convicted for the theft and slaughter of his fatherโ€™s animal. In this case, the liability to pay the fourfold or fivefold payment was established before the fatherโ€™s death, and at that time the payment was five full oxen.


ืื‘ืœ ืœื ืขืžื“ ื‘ื“ื™ืŸ ืžืื™ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ืื™ ื”ื›ื™ ืื“ืชื ื™ ืกื™ืคื ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ื ื™ืคืœื•ื’ ื‘ื“ื™ื“ื™ื” ื‘ืžื” ื“ื‘ืจื™ื ืืžื•ืจื™ื ื›ืฉืขืžื“ ื‘ื“ื™ืŸ ืื‘ืœ ืœื ืขืžื“ ื‘ื“ื™ืŸ ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


Rava asked him: And if the thief had not yet stood trial before the fatherโ€™s death, what would be the halakha, according to your opinion? Would he not be required to pay the fourfold or fivefold payment? If so, rather than teaching in the latter clause of the mishna (74b): If one stole his fatherโ€™s animal and the father died, and afterward he slaughtered or sold it, he does not pay the fourfold or fivefold payment; let the mishna make a distinction within the same type of case, as follows: In what case is this statement, i.e., that the thief is required to pay the fourfold or fivefold payment, said? It is when the thief stood trial in his fatherโ€™s lifetime; but if he did not stand trial in his fatherโ€™s lifetime he does not pay the fourfold or fivefold payment.


ืืžืจ ืœื™ื” ื”ื›ื™ ื ืžื™ ืื™ื™ื“ื™ ื“ื ืกื™ื‘ ืจื™ืฉื ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ื˜ื‘ื— ื•ืžื›ืจ ื•ืื—ืจ ื›ืš ืžืช ืื‘ื™ื• ื ืกื™ื‘ ืกื™ืคื ื ืžื™ ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ืื‘ื™ื• ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ


Rav Naแธฅman said to him: Indeed, the mishna could have mentioned that case. However, since the tanna of the mishna has to cite the first clause, which discusses one who stole an animal of his fatherโ€™s and slaughtered or sold it, and afterward his father died, he cites the latter clause as well, by means of a similar case: If one stole his fatherโ€™s animal and his father died, and afterward he slaughtered or sold the animal.


ืœืฆืคืจื ืืžืจ ืœื™ื” ื—ืžืฉื” ื‘ืงืจ ืืžืจ ืจื—ืžื ื ื•ืืคื™ืœื• ื—ืžืฉื” ื—ืฆืื™ ื‘ืงืจ ื•ื”ืื™ ื“ืœื ืืžืจื™ ืœืš ื‘ืื•ืจืชื


This discussion between Rava and Rav Naแธฅman occurred in the evening. On the following morning, Rav Naแธฅman retracted his statement and said to Rava: The Merciful One states: โ€œFive oxen,โ€ and this means that even five half-oxen are included. Rav Naแธฅman explained his change of mind: And the reason that I did not say this to you last night


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