בבא קמא ע

בבא קמא ע

כִּסְתָם יְחִידָאָה לָא אָמַר.

did not say to apply his principle, that the halakha is always in accordance with an unattributed mishna, in a case where the mishna expresses the opinion of an individual Sage. According to this interpretation Rabbi Yoḥanan does not rule in accordance with the mishna, due to the fact that it represents the opinion of an individual Sage, Rabbi Dosa. Rather, he follows the majority opinion. Yet now that Rabbi Yoḥanan said that the pious ones and Rabbi Dosa said the same thing, it cannot be claimed that they are one and the same Sage. Consequently, the ruling of the mishna is evidently accepted by at least two Sages, and therefore the difficulty from the mishna cannot be resolved by assigning it to a single Sage.

אָמְרִי נְהַרְדָּעֵי: לָא כָּתְבִינַן אוֹרָכְתָּא אַמִּטַּלְטְלִי. אָמַר רַב אָשֵׁי לְאַמֵּימָר: מַאי טַעְמָא? אֲמַר לֵיהּ: מִשּׁוּם דְּרַבִּי יוֹחָנָן,

§ The Sages of Neharde’a say: One cannot write a document of authorization [orakhta] to assign another to collect a debt or a deposit of movable property on his behalf. Rav Ashi said to Ameimar: What is the reason for this halakha? Ameimar said to him: It is due to a principle stated by Rabbi Yoḥanan.

דְּאָמַר רַבִּי יוֹחָנָן: גָּזַל וְלֹא נִתְיָיאֲשׁוּ הַבְּעָלִים – שְׁנֵיהֶם אֵינָן יְכוֹלִין לְהַקְדִּישׁ; זֶה לְפִי שֶׁאֵינוֹ שֶׁלּוֹ, וְזֶה לְפִי שֶׁאֵינוֹ בִּרְשׁוּתוֹ.

As Rabbi Yoḥanan says: If one stole an item and the owners have not yet despaired of recovering it, neither of them is able to consecrate it: This one, the thief, cannot consecrate the item because it does not belong to him, and that one, the owner, cannot consecrate it because it is not in his possession. The granting of authority to collect a debt involves the transfer of ownership of the item or money from the owner to the collector; otherwise the debtor could refuse to convey it to the collector. In the case of movable property, as it is being held by another, it is not in the possession of the owner; just as the owner cannot consecrate this item he cannot transfer ownership of it.

אִיכָּא דְּאָמְרִי, אָמְרִי נְהַרְדָּעֵי: לָא כָּתְבִינַן אוֹרָכְתָּא אַמִּטַּלְטְלִי דְּכַפְרֵיהּ. טַעְמָא דְּכַפְרֵיהּ, דְּמִיחֲזֵי כְּשִׁיקְרָא; אֲבָל לָא כַּפְרֵיהּ – כָּתְבִינַן.

There are those who state a different version of this halakha. The Sages of Neharde’a say: One cannot write a document of authorization for the collection of movable property that the bailee or debtor has denied owing. The Gemara infers: According to this version, the only reason the document cannot be written is that the bailee or debtor has denied owing the item, as a document written under these circumstances has the appearance of falsehood, since the purported owner is transferring ownership of an item over which his own ownership is in doubt. But it can be inferred that if the bailee or debtor did not deny owing the item, one can write a document of authorization.

וְאָמְרִי נְהַרְדָּעֵי: אוֹרָכְתָּא דְּלָא כְּתִיב בֵּיהּ ״זִיל דּוּן וּזְכִי וְאַפֵּיק לְנַפְשָׁךְ״ – לֵית בֵּיהּ מְשָׁשָׁא. מַאי טַעְמָא? מִשּׁוּם דְּאָמַר לֵיהּ הַאיְךְ: לָאו בַּעַל דְּבָרִים דִּידִי אַתְּ.

And the Sages of Neharde’a state another halakha with regard to this kind of document: A document of authorization in which it is not written: Go and take legal action against so-and-so and take possession of the owed property and collect it from him for yourself, has no substance, i.e., it is not a valid document. What is the reason for this? It is because the other party, the bailee or debtor, can say to the collector who presents a document without this clause: I am not legally answerable to you; I am willing to deal only with the person to whom the item is owed. To avoid this situation, the authorization document must transfer actual ownership of the item to the collector, who is now claiming it for himself.

אָמַר אַבָּיֵי: וְאִי כְּתִיב בֵּיהּ לְמֶחֱצָה לִשְׁלִישׁ וְלִרְבִיעַ, מִיגּוֹ דְּמִשְׁתַּעֵי דִּינָא אַפַּלְגָא, מִשְׁתַּעֵי דִּינָא אַכּוּלֵּהּ.

Abaye said: And if it is written in the document that the owner transferred ownership of only half of the item to the collector, or a third or a quarter of it, this is sufficient. The reason is that since the bailee or debtor must relate to the judgment, i.e., engage in litigation with the collector, over the half or third or quarter of the item that has been transferred to the collector, he must relate to the judgment concerning all of it.

אָמַר אַמֵּימָר: אִי תְּפַס – לָא מַפְּקִינַן מִינֵּיהּ. רַב אָשֵׁי אָמַר: כֵּיוָן דְּכַתְבֵיהּ לֵיהּ ״כֹּל דְּמִתְעֲנֵי מִן דִּינָא קַבֵּילִית עֲלַי״ – שָׁלִיחַ שַׁוְּיֵהּ.

Ameimar said: If the collector who is empowered by the authorization seized the item he collected and kept it for himself, the court does not take it away from him, as the owner transferred ownership of the item to him in the document of authorization, as explained above. Rav Ashi disagreed with Ameimar and said: Since the owner wrote to the collector: I accept upon myself anything that develops as a result of this legal process, he has in effect rendered the collector an agent to act on his behalf, and therefore the agent cannot seize the item for himself.

וְאִיכָּא דְּאָמַר: שׁוּתָּפָא שַׁוְּיֵהּ. לְמַאי נָפְקָא מִינַּהּ? לְמִיתְפַּס פַּלְגָא. וְהִלְכְתָא: שָׁלִיחַ שַׁוְּיֵהּ.

And there is another opinion that states: The owner renders the collector a partner in the collected item, transferring ownership of half of it to him while maintaining ownership over the other half. The Gemara asks: What is the practical difference between this opinion and that of Rav Ashi? The Gemara answers: The difference is whether the collector has the power to seize half of the collected item for himself. If he is merely an agent of the owner, he cannot seize anything; if he is a partner he can seize up to half. The Gemara concludes: And the halakha is that the owner renders the collector his agent, and therefore this agent may not seize any portion of the collected item for himself.

מַתְנִי׳ גָּנַב עַל פִּי שְׁנַיִם, וְטָבַח וּמָכַר עַל פִּיהֶם, אוֹ עַל פִּי שְׁנַיִם אֲחֵרִים – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

MISHNA: The mishna lists a series of cases in which a thief is required to pay the fourfold or fivefold penalty. If one stole an animal, as established based on the testimony of two witnesses, and he subsequently slaughtered the animal or sold it, also based on the testimony of the same witnesses, or based on the testimony of two other witnesses, he pays the fourfold or fivefold payment.

גָּנַב וּמָכַר בְּשַׁבָּת; גָּנַב וּמָכַר לַעֲבוֹדָה זָרָה; גָּנַב וְטָבַח בְּיוֹם הַכִּפּוּרִים;

If one stole an animal and sold it on Shabbat, or if he stole it and sold it for idol worship, or if he stole it and slaughtered it on Yom Kippur, he pays the fourfold or fivefold payment. Although his sale or slaughter in these circumstances involved a sin, he is not liable to receive the death penalty for the sale and must consequently pay the fourfold or fivefold payment.

גָּנַב מִשֶּׁל אָבִיו וְטָבַח וּמָכַר, וְאַחַר כָּךְ מֵת אָבִיו; גָּנַב וְטָבַח, וְאַחַר כָּךְ הִקְדִּישׁ – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

If one stole an animal of his father’s and then slaughtered it or sold it, and afterward his father died and he inherited his father’s estate either on his own or in partnership with his brothers, or if he stole an animal and slaughtered it and afterward he consecrated it, he pays the fourfold or fivefold payment.

גָּנַב וְטָבַח לִרְפוּאָה אוֹ לִכְלָבִים; הַשּׁוֹחֵט וְנִמְצֵאת טְרֵיפָה; הַשּׁוֹחֵט חוּלִּין בַּעֲזָרָה – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

In the case of one who stole an animal and slaughtered it, not for the purpose of eating its meat, but to use it for medicinal purposes or to feed the meat to dogs, and likewise a thief who slaughters the animal to eat its meat but it was found to be an animal with a condition that will cause it to die within twelve months [tereifa], or a thief who slaughters a non-sacred animal in the Temple courtyard, he pays the fourfold or fivefold payment.

רַבִּי שִׁמְעוֹן פּוֹטֵר בִּשְׁנֵי אֵלּוּ.

Rabbi Shimon exempts the thief from the fourfold or fivefold payment in these last two cases, as he maintains that 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.

גְּמָ׳ לֵימָא מַתְנִיתִין דְּלָא כְּרַבִּי עֲקִיבָא?

GEMARA: The mishna teaches that if two witnesses testify about the theft of an animal and two others testify about its slaughter or sale, the thief pays the fourfold or fivefold payment. The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Akiva, in his exposition of the verse: “Based on the testimony of two witnesses or on the testimony of three witnesses shall a matter be established” (Deuteronomy 19:15).

דְּאִי רַבִּי עֲקִיבָא, הָאָמַר: ״דָּבָר״ – וְלֹא חֲצִי דָבָר!

The Gemara elaborates: As, if it is in accordance with the opinion of Rabbi Akiva, the thief would be exempt from the fourfold or fivefold payment, as doesn’t Rabbi Akiva say that this verse teaches that witnesses’ testimony must refer to an entire matter, and not part of a matter? In the case discussed by the mishna the second set of witnesses testifies only that this man slaughtered or sold an ox or sheep, not that he stole it, and therefore their testimony alone would not render the thief liable to pay anything.

דְּתַנְיָא, אָמַר רַבִּי יוֹסֵי: כְּשֶׁהָלַךְ אַבָּא חֲלַפְתָּא אֵצֶל רַבִּי יוֹחָנָן בֶּן נוּרִי לִלְמוֹד תּוֹרָה, וְאָמְרִי לַהּ: רַבִּי יוֹחָנָן בֶּן נוּרִי אֵצֶל אַבָּא

As it is taught in the Tosefta (Bava Batra 2:4) that Rabbi Yosei said: When father Ḥalafta went to study Torah with Rabbi Yoḥanan ben Nuri, and some say that he said: When Rabbi Yoḥanan ben Nuri went to study Torah with father

חֲלַפְתָּא, אָמַר לוֹ:

Ḥalafta, he said to him the following in the course of their discussion of the halakhot of possession.

הֲרֵי שֶׁאֲכָלָהּ שָׁנָה רִאשׁוֹנָה בִּפְנֵי שְׁנַיִם, שְׁנִיָּה בִּפְנֵי שְׁנַיִם, שְׁלִישִׁית בִּפְנֵי שְׁנַיִם, מַהוּ?

If one has been in possession of real estate for three years, this serves as proof of his claim that he is the legal owner. One who is able to prove uninterrupted possession for the necessary period is not required to produce documentary evidence of his legal title to the property. Rabbi Yoḥanan ben Nuri or father Ḥalafta asked: If one harvested and ate the produce of a field that he claims as his own the first year of the three years required for establishing possession of the land in the presence of two witnesses, and subsequently ate the produce of the second year in the presence of two other witnesses, and finally ate the produce of the third year in the presence of yet two other witnesses, what is the halakha? Can the three testimonies combine to establish full testimony that he ate the produce of three years, thereby confirming his ownership of the field?

אָמַר לוֹ: הֲרֵי זוֹ חֲזָקָה. אָמַר לוֹ: אַף אֲנִי אוֹמֵר כֵּן, אֶלָּא שֶׁרַבִּי עֲקִיבָא חוֹלֵק בַּדָּבָר. שֶׁהָיָה רַבִּי עֲקִיבָא אוֹמֵר: ״דָּבָר״ – וְלֹא חֲצִי דָבָר.

Rabbi Ḥalafta said to Rabbi Yoḥanan ben Nuri, or vice versa: This is considered to establish presumptive ownership by the one who ate the produce. The other Sage said to him: I too say that this is so, but Rabbi Akiva disputes this matter, as Rabbi Akiva would say: The Torah requires that witnesses must testify with regard to a complete matter and not part of a matter. Since there must be testimony concerning consumption of the produce over three years, and each set of witnesses establishes only that it took place for one year, their separate testimonies do not combine. If so, the mishna is apparently not in accordance with the opinion of Rabbi Akiva.

אָמַר אַבָּיֵי: אֲפִילּוּ תֵּימָא רַבִּי עֲקִיבָא – מִי לָא מוֹדֶה רַבִּי עֲקִיבָא בִּשְׁנַיִם אוֹמְרִים ״קִידֵּשׁ״ וּשְׁנַיִם אוֹמְרִים ״בָּעַל״,

The Gemara rejects this assertion. Abaye said: You can even say that the mishna is in accordance with the opinion of Rabbi Akiva. Doesn’t Rabbi Akiva concede that in a case where two witnesses say: So-and-so betrothed a certain woman, and two other witnesses say: Someone else subsequently engaged in sexual intercourse with that same woman, this is proof that the act of intercourse was adulterous?

דְּאַף עַל גַּב דְּעֵדֵי בִיאָה צְרִיכִי לְעֵדֵי קִדּוּשִׁין – כֵּיוָן דְּעֵדֵי קִדּוּשִׁין לָא צְרִיכִי לְעֵדֵי בִיאָה, ״דָּבָר״ קָרֵינָא בֵּיהּ?

The reason for this is that even though the witnesses testifying about the intercourse require the witnesses who testify about the betrothal, i.e., the testimony of the second set of witnesses is meaningless without the testimony of the first witnesses, nevertheless, since the witnesses testifying about the betrothal do not require the witnesses who testify about the intercourse, i.e., their testimony by itself establishes a halakhic status, we call the testimony of each pair a complete matter.

הָכָא נָמֵי, אַף עַל גַּב דְּעֵדֵי טְבִיחָה צְרִיכִי לְעֵדֵי גְנֵיבָה – כֵּיוָן דְּעֵדֵי גְנֵיבָה לָא צְרִיכִי לְעֵדֵי טְבִיחָה, ״דָּבָר״ קָרֵינָא בֵּיהּ.

Here too, the same logic applies in the case of a thief who steals an animal and subsequently slaughters or sells it: Even though the witnesses who testify about the slaughter require the testimony of the witnesses about the theft in order for their testimony to have any halakhic significance, since the witnesses testifying about the theft do not require the testimony of the witnesses who testify about the slaughter, as their testimony alone establishes that person as a thief who is liable to pay the double payment, we call the testimony of each pair a complete matter.

וְרַבָּנַן – הַאי ״דָּבָר״ וְלֹא חֲצִי דָבָר, לְמַעוֹטֵי מַאי? לְמַעוֹטֵי אֶחָד אוֹמֵר אֶחָד בְּגַבָּהּ, וְאֶחָד אוֹמֵר אֶחָד בִּכְרֵיסָהּ.

The Gemara asks: And according to the opinion of the Rabbis, who disagree with Rabbi Akiva that the Torah stipulates that testimony must be about a matter and not half of a matter, the term “matter” (Deuteronomy 19:15) serves to exclude what? The Gemara answers: It serves to exclude a case involving testimony that a girl has reached majority, in which one witness says that he saw one hair on her lower back, and one witness says that he saw one hair on her lower abdomen. A girl is considered to have reached maturity when she has two pubic hairs. In this case, two witnesses separately testify that they have each seen one hair, and therefore each testimony is halakhically meaningless on its own. The Rabbis derive from the verse that these testimonies do not combine.

הַאי חֲצִי דָבָר וַחֲצִי עֵדוּת הוּא!

The Gemara raises a difficulty: In this case each testimony is obviously invalid, as it is half a matter and also half a testimony. Not only does each testimony refer to one hair, which is half a matter, it is submitted by one witness, which is half a testimony. Consequently, it is obvious that the girl is not considered of age in this case.

אֶלָּא לְמַעוֹטֵי שְׁנַיִם אוֹמְרִים אֶחָד בְּגַבָּהּ, וּשְׁנַיִם אוֹמְרִים אֶחָד בִּכְרֵיסָהּ – הָנֵי אָמְרִי קְטַנָּה הִיא, וְהָנֵי אָמְרִי קְטַנָּה הִיא.

The Gemara therefore rejects this explanation. Rather, the Rabbis maintain that the term “matter” serves to exclude a case in which two witnesses say that they saw one hair on a girl’s back, and two other witnesses say that they saw one hair on her lower abdomen. In this case the testimony of either set of witnesses concerns only one hair, and therefore these witnesses are essentially saying that she is still a minor and those witnesses are saying that she is still a minor. Therefore, each testimony concerns only half of a matter.

גָּנַב וּמָכַר בְּשַׁבָּת [וְכוּ׳]. וְהָתַנְיָא: פָּטוּר!

§ The mishna teaches: If one stole an animal and sold it on Shabbat, he pays the fourfold or fivefold payment. The Gemara asks: But isn’t it taught in a baraita that in this case he is exempt from the fourfold or fivefold payment?

אָמַר רָמֵי בַּר חָמָא: כִּי תַּנְיָא הָהִיא דְּפָטוּר – בְּאוֹמֵר לוֹ: ״עֲקוֹץ לְךָ תְּאֵינָה מִתְּאֵינָתִי, וְתִיקְּנֵי לִי גְּנֵיבוּתָיךְ״.

Rami bar Ḥama said: When it is taught in that baraita that he is exempt, this is referring to a case where the purchaser says to the thief: Pick off a fig for yourself from my fig tree on Shabbat, and through performing this act your stolen animal shall be acquired by me. Since the act of acquisition of the animal involved the type of Shabbat desecration for which one is liable to receive the death penalty, the thief is exempt from the monetary obligations he would ordinarily incur from this act, i.e., the fourfold or fivefold payment to the animal’s prior owner. This is in accordance with the principle that one who commits two or more transgressions by means of a single act, both of which entail punishment, is exempt from the lesser punishment.

אָמְרִי: וְכֵיוָן דְּכִי תָבַע לֵיהּ קַמַּן בְּדִינָא לָא אָמְרִינַן לֵיהּ: ״זִיל שַׁלֵּים״ – דְּמִחַיַּיב בְּנַפְשׁוֹ הוּא; הָא מְכִירָה נָמֵי לָאו מְכִירָה הִיא!

The Sages say, questioning this explanation of the baraita: But since, if the purchaser would bring a legal claim against the thief before us, to force him to deliver the animal acquired by means of picking the fig, the court would not say to the thief: Go and pay him the animal you owe him, because the thief is liable to receive the death penalty for his desecration of Shabbat, this shows that the sale is not a valid sale at all. Therefore, the baraita would not call this exchange a sale and this interpretation of the baraita cannot be correct.

אֶלָּא אָמַר רַב פָּפָּא, בְּאוֹמֵר לוֹ: ״זְרוֹק גְּנֵיבוּתָיךְ לַחֲצֵרִי, וְתִיקְּנֵי לִי גְּנֵיבוּתָיךְ״.

Rather, Rav Pappa said: The baraita is discussing a case where the purchaser said to the thief: Throw your stolen animal from the public domain into my enclosed courtyard, and your stolen animal will thereby be acquired by me. One can acquire an item if it is placed on his property. In this case, when the thief places the animal on the purchaser’s property he moves it from the public domain into the private domain, which is a desecration of Shabbat that entails the death penalty. Consequently, he is exempt from the fourfold or fivefold payment.

כְּמַאן? כְּרַבִּי עֲקִיבָא, דְּאָמַר: קְלוּטָה – כְּמִי שֶׁהוּנְּחָה דָּמְיָא.

The Gemara asks: If this is the correct explanation of the baraita, in accordance with whose opinion is the baraita taught? It is in accordance with the opinion of Rabbi Akiva, who says: An item in the airspace of a certain area is considered as though it were at rest in that area.

דְּאִי כְּרַבָּנַן, כֵּיוָן דְּמָטְיָא לַחֲצַר בֵּיתוֹ – קָנָה, לְעִנְיַן שַׁבָּת – לָא מְחַיַּיב עַד דְּמָטְיָא לְאַרְעָא!

As, if the baraita is in accordance with the opinion of the Rabbis, who hold that an item in the airspace of a certain area is not considered as though it were at rest in that area, once the animal reaches the airspace of the courtyard of the purchaser’s house he has acquired it, as one can acquire items that are in the airspace of his courtyard just like those on its ground, whereas with regard to moving an item from one domain to another on Shabbat the thief is not liable for Shabbat desecration until it reaches the ground. Since the thief’s monetary liability is not simultaneous with his incurring of the death penalty, he would not be exempt from payment.

בְּאוֹמֵר: ״לֹא תִּיקְּנֵי לִי גְּנֵיבוּתָיךְ עַד שֶׁתָּנוּחַ״.

The Gemara answers: It is possible that the baraita is in accordance with the opinion of the Rabbis as well, as one can explain that it is speaking of a case in which the purchaser says to the thief: Your stolen animal shall not be acquired by me until it rests on the ground. In that case, the acquisition of the animal and the Shabbat desecration are simultaneous.

רָבָא אָמַר: לְעוֹלָם כְּרָמֵי בַּר חָמָא; אֶתְנַן אָסְרָה תּוֹרָה – וַאֲפִילּוּ בָּא עַל אִמּוֹ; וְאִי תָּבְעָה לֵיהּ קַמַּן בְּדִינָא, מִי אָמְרִינַן לֵיהּ: ״קוּם הַב לַהּ אֶתְנַן״?!

Rava said: Actually, it is possible to explain the baraita as Rami bar Ḥama did, that the animal was acquired through the picking of a fig on Shabbat. And the objection raised earlier, that this act should not be considered a sale at all, is incorrect. This can be demonstrated by the fact that the Torah prohibits one to bring as an offering an animal given as the payment to a prostitute for services rendered (Deuteronomy 23:19). And this prohibition applies even if the man in question engaged in intercourse with his own mother, which is a capital offense. But if she would bring a legal claim before us, demanding the payment of the animal that was agreed upon as her fee, would we say to him: Arise and pay her the animal? The court would not say this, as the monetary liability was incurred simultaneously with the commission of a capital crime.

אֶלָּא אַף עַל גַּב דְּכִי קָא תָבְעָה לֵיהּ בְּדִינָא – לָא אָמְרִינַן לֵיהּ ״זִיל הַב לָהּ״, כֵּיוָן דְּכִי יָהֵיב לַהּ – הָוֵי אֶתְנַן; הָכָא נָמֵי, אַף עַל גַּב דִּלְעִנְיַן תַּשְׁלוּמִין – אִי תָּבַע [לֵיהּ] בְּדִינָא קַמַּן לָא אָמְרִינַן לֵיהּ ״זִיל שַׁלֵּים״,

Rather, one must say that even though if she brings a legal claim against him demanding the payment of the animal that was agreed upon as her fee we do not say to him: Go and pay her, nevertheless, since if he does give it to her it is considered payment to a prostitute, it cannot be used as an offering. Here too, in the case of the acquisition of the animal through picking a fig, even though with regard to payment, if the purchaser would bring a legal claim before us against the thief, seeking to force him to deliver the animal, we would not say to him: Go pay,