Bava Kamma 76
תַּשְׁלוּם דְּכֵפֶל.
the payment of the extra part of the double payment, i.e., the amount that exceeds the principal.
גָּנַב וְהִקְדִּישׁ וְאַחַר כָּךְ טָבַח וּמָכַר כּוּ׳. אָמְרִי: בִּשְׁלָמָא אַטְּבִיחָה לָא מִחַיַּיב, דְּכִי קָא טָבַח – דְּהֶקְדֵּשׁ קָא טָבַח, וְלָא דְּמָרֵיהּ קָא טָבַח;
§ The mishna teaches: If one stole an animal and subsequently he consecrated it as an offering, and afterward he slaughtered or sold it, the thief pays the double payment but he does not pay the fourfold or fivefold payment. The Sages say: Granted, he is not liable to pay the fourfold or fivefold payment for the slaughter of the animal, as when he slaughtered it, he slaughtered an animal belonging to the Temple treasury, and he did not slaughter the animal belonging to its owner.
אֶלָּא אַהֶקְדֵּשׁ – לִיחַיַּיב! מָה לִי מְכָרוֹ לְהֶדְיוֹט, מָה לִי מְכָרוֹ לַשָּׁמַיִם?
But let him be liable to pay the fourfold or fivefold payment for having consecrated the animal in the first place, as what difference is it to me if he sold the animal to an ordinary person, and what difference is it to me if he sold it to Heaven by consecrating it? Consecration should be considered tantamount to a sale, as in either case ownership of the animal is transferred to another party.
הָא מַנִּי – רַבִּי שִׁמְעוֹן הִיא, דְּאָמַר: קֳדָשִׁים שֶׁחַיָּיב בְּאַחְרָיוּתָן – בִּרְשׁוּתֵיהּ דְּמָרֵיהּ קָיְימִי.
The Gemara answers: In accordance with whose opinion is this mishna taught? It is in accordance with the opinion of Rabbi Shimon, who says that sacrificial animals for which the owner bears financial responsibility to replace with another animal if one of the original animals is lost or dies are considered to be in the possession of their owner (see 74b). The mishna is referring a case where the thief consecrated the animal in such a manner that he is obligated to replace it if it is lost or damaged before being sacrificed. One consequence of this potential financial loss is that the animal is considered to be in the thief’s possession even after he consecrated it. Therefore, the animal’s consecration is not tantamount to a sale to another party.
הָא מִדְּסֵיפָא רַבִּי שִׁמְעוֹן הָוֵי, רֵישָׁא לָאו רַבִּי שִׁמְעוֹן!
The Gemara rejects this answer: But from the fact that the latter clause of the mishna is in accordance with the opinion of Rabbi Shimon, it follows that the first clause of the mishna, which is stated before his opinion is introduced, is not in accordance with the opinion of Rabbi Shimon.
אֶלָּא הָכָא בְּמַאי עָסְקִינַן – בְּקָדָשִׁים קַלִּים, וְאַלִּיבָּא דְּרַבִּי יוֹסֵי הַגְּלִילִי, דְּאָמַר: קָדָשִׁים קַלִּים – מָמוֹן בְּעָלִים הוּא, וּבִרְשׁוּתֵיהּ קָיְימִי.
Rather, with what are we dealing here in the mishna? We are dealing with a case where the thief consecrated the animal as an offering of lesser sanctity, and the mishna is in accordance with the opinion of Rabbi Yosei HaGelili, who says that an offering of lesser sanctity is the property of its putative owner, and is considered in his possession. Therefore, its consecration is not tantamount to a sale to another party.
אֲבָל קׇדְשֵׁי קָדָשִׁים מַאי, מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה?! אַדְּתָנֵי רֵישָׁא: גָּנַב וְטָבַח וְאַחַר כָּךְ הִקְדִּישׁ – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה; לִיפְלוֹג וְלִיתְנֵי בְּדִידַהּ:
The Gemara rejects this answer as well: But what would be the halakha had the thief consecrated the animal as an offering of the most sacred order? Would he have to pay the fourfold or fivefold payment? If so, rather than teaching the following in the earlier clause of the mishna (70a), in the case that stands in opposition to this one: If he stole an animal and slaughtered it and afterward he consecrated it, he must pay the fourfold or fivefold payment, let the tanna distinguish and teach the opposing halakha within the same category itself.
בַּמֶּה דְּבָרִים אֲמוּרִים – בְּקָדָשִׁים קַלִּים, אֲבָל בְּקׇדְשֵׁי קֳדָשִׁים – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה!
The Gemara elaborates: The tanna could have taught: In what case is this statement, that the thief is exempt if he consecrated the stolen animal and then slaughtered or sold it, said? It is said only if he consecrated the animal as an offering of lesser sanctity; but if he consecrated it as an offering of the most sacred order he pays the fourfold or fivefold payment, as the consecration itself would be tantamount to a sale to another party.
אֶלָּא לְעוֹלָם – לָא שְׁנָא קׇדְשֵׁי קָדָשִׁים, וְלָא שְׁנָא קָדָשִׁים קַלִּים; וּדְקַשְׁיָא לָךְ: מָה לִי מְכָרוֹ לְהֶדְיוֹט מָה לִי מְכָרוֹ לַשָּׁמַיִם; מְכָרוֹ לְהֶדְיוֹט – מֵעִיקָּרָא תּוֹרָא דִרְאוּבֵן, וְהַשְׁתָּא תּוֹרָא דְשִׁמְעוֹן. מְכָרוֹ לַשָּׁמַיִם – מֵעִיקָּרָא תּוֹרָא דִרְאוּבֵן, וְהַשְׁתָּא תּוֹרָא דִרְאוּבֵן.
Rather, the Gemara states that actually there is no difference whether the thief consecrates the animal as an offering of the most sacred order and there is no difference whether he consecrates it as an offering of lesser sanctity. And as for the matter that presented a difficulty for you, namely: What difference is it to me if he sold the animal to an ordinary person and what difference is it to me if he sold it to Heaven by consecration, one can answer as follows: If someone, e.g., Reuven, sold an ox to an ordinary person, e.g., Shimon, at the outset it was Reuven’s ox and now, after the sale, it is Shimon’s ox. By contrast, if he sold it to Heaven, i.e., he consecrated it as an offering, it is not considered to have been transferred into the possession of another party, as at the outset it was Reuven’s ox and now, after consecration, it is still Reuven’s ox.
רַבִּי שִׁמְעוֹן אוֹמֵר וְכוּ׳. אָמְרִי, נְהִי דְּסָבַר רַבִּי שִׁמְעוֹן: מָה לִי מְכָרוֹ לְהֶדְיוֹט מָה לִי מְכָרוֹ לַשָּׁמַיִם; אִיפְּכָא מִיבְּעֵי לֵיהּ:
§ The mishna teaches: Rabbi Shimon says: In the case of sacrificial animals for which the owner bears financial responsibility to replace with another animal if one of the original animals that one stole is lost or dies, the thief is obligated to pay the fourfold or fivefold payment if he slaughters one of the animals. If it is a sacrificial animal for which the owner bears no financial responsibility, the thief is exempt from the fourfold or fivefold payment. At this stage the Gemara assumes that Rabbi Shimon requires the fourfold or fivefold payment as a fine for the act of consecration itself rather than for the act of slaughtering the animal. The Gemara says: Although Rabbi Shimon holds that there is a logic of: What difference is it to me if he sold the animal to an ordinary person and what difference is it to me if he sold it to Heaven via consecration, nevertheless, he should have said the opposite.
קֳדָשִׁים שֶׁחַיָּיב בְּאַחְרָיוּתָן – פָּטוּר, דְּאַכַּתִּי לָא נְפַק מֵרְשׁוּתֵיהּ;
The Gemara elaborates: He should have said that if they are sacrificial animals for which one bears financial responsibility, the thief is exempt from paying the fourfold or fivefold payment. In other words, if the thief stole a non-sacred animal and subsequently consecrated it as an offering in such a manner that he bears responsibility to replace it, he should be exempt from the fourfold or fivefold payment for the act of consecration. The reason is that the animal has not yet left his possession, and therefore this act of consecration should not be considered a sale.
קֳדָשִׁים שֶׁאֵינוֹ חַיָּיב בְּאַחְרָיוּתָן – חַיָּיב, דְּמַפְּקִי לֵיהּ מֵרְשׁוּתֵיהּ!
By contrast, if they are sacrificial animals for which one does not bear financial responsibility, the thief should be liable to pay the fourfold or fivefold payment. If the thief stole a non-sacred animal and then consecrated it as an offering in such a way that he does not bear responsibility to replace it, he should be liable to pay the fourfold or fivefold payment for the act of consecration, as he has thereby removed the animal from his possession.
אָמְרִי: רַבִּי שִׁמְעוֹן – אַמִּילְּתָא אַחֲרִיתִי קָאֵי,
The Sages say in response: Rabbi Shimon is not discussing the issue of whether the consecration of an animal is tantamount to its sale. Rather, he is referring to a different matter, one that is not explicitly mentioned in the mishna.
וְהָכִי קָתָנֵי: אֵין הַגּוֹנֵב אַחַר הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה, וְכֵן גּוֹנֵב הֶקְדֵּשׁ מִבֵּית בְּעָלִים – פָּטוּר.
And this is what the mishna is teaching: One who steals an animal after a thief has already stolen it, i.e., he steals it from the thief, does not pay the double payment, and if he slaughtered or sold the animal he does not pay the fourfold or fivefold payment. And similarly, one who steals consecrated property from the house of its owner is exempt from the double payment, and if it was a sacrificial animal and the thief slaughtered or sold it, he is exempt from the fourfold or fivefold payment.
מַאי טַעְמָא? ״וְגֻנַּב מִבֵּית הָאִישׁ״ – וְלֹא מִבֵּית הֶקְדֵּשׁ.
What is the reason for this last ruling? The reason is as it is written: “If a man gives his neighbor money or vessels to safeguard and it was stolen from the house of the man, if the thief shall be found he shall pay double” (Exodus 22:6). The phrase “from the house of the man” indicates that a thief is obligated to pay the double payment only when they are stolen from a person, but not if the item in question was stolen out of the house of the Temple treasury.
רַבִּי שִׁמְעוֹן אוֹמֵר: קֳדָשִׁים שֶׁחַיָּיב בְּאַחְרָיוּתָן – חַיָּיב. מַאי טַעְמָא? קָרֵינָא בֵּיהּ: ״וְגֻנַּב מִבֵּית הָאִישׁ״. וְשֶׁאֵינוֹ חַיָּיב בְּאַחְרָיוּתָן – פָּטוּר, דְּלָא קָרֵינַן בֵּיהּ: ״וְגֻנַּב מִבֵּית הָאִישׁ״.
Rabbi Shimon says: If the stolen items were sacrificial animals for which the owner bears financial responsibility, the thief who steals them is liable to pay the double payment, as well as the fourfold or fivefold payment if he slaughters or sells them. What is the reason for this? Since the owner must replace the animals, one applies to this case the phrase “and it was stolen from the house of the man.” But if the stolen animals are those for which the owner does not bear financial responsibility, the thief is exempt from the double payment and from the fourfold and fivefold payment, as one does not apply to this case the phrase “and it was stolen from the house of the man.”
מִכְּדִי שָׁמְעִינַן לֵיהּ לְרַבִּי שִׁמְעוֹן דְּאָמַר: שְׁחִיטָה שֶׁאֵינָהּ רְאוּיָה – לֹא שְׁמָהּ שְׁחִיטָה; קֳדָשִׁים נָמֵי שְׁחִיטָה שֶׁאֵינָהּ רְאוּיָה הִיא!
Now, we have heard elsewhere concerning Rabbi Shimon that he said: An act of slaughter that is not fit for accomplishing its full ritual purpose is not considered an act of slaughter at all. And if the thief slaughtered the sacrificial animal he stole, this is also an act of slaughter that is not fit for accomplishing its full ritual purpose, as it does not render the animal’s meat fit for consumption, in light of the halakha that it is prohibited to eat a sacrificial animal slaughtered outside the Temple.
כִּי אֲתָא רַב דִּימִי אָמַר רַבִּי יוֹחָנָן: בְּשׁוֹחֵט תְּמִימִים מִבִּפְנִים לְשֵׁם בְּעָלִים.
When Rav Dimi came from Eretz Yisrael, he said that Rabbi Yoḥanan says: This is referring to a case where the thief slaughters the animal, unblemished, inside the Temple, for the sake of its owner. In this case, its meat may be eaten.
וַהֲרֵי חָזְרָה קֶרֶן לַבְּעָלִים! אָמַר רַבִּי יִצְחָק בַּר אָבִין: שֶׁנִּשְׁפַּךְ הַדָּם.
The Gemara asks: But by slaughtering and sacrificing the sacrificial animal on behalf of the owner, it is as though the principal, i.e., the animal itself, has been returned to the owner, and the fourfold or fivefold payment should no longer apply. The owner had designated the animal as his offering, and it was in fact used for that purpose. Rabbi Yitzḥak bar Avin said in response: This is referring to a situation where the animal’s blood was spilled before it could be sprinkled on the altar. Consequently, the owner did not achieve atonement through this offering, which is why it is not considered as though the animal has been returned to the owner.
כִּי אֲתָא רָבִין אָמַר רַבִּי יוֹחָנָן: בְּשׁוֹחֵט תְּמִימִים בִּפְנִים שֶׁלֹּא לְשֵׁם בְּעָלִים.
When Ravin came from Eretz Yisrael, he cited a different version of this answer, and said that Rabbi Yoḥanan says: This is referring to a case where the thief slaughters the animal, unblemished, inside the Temple, but not for the sake of its owner. The halakha in this case is that the animal’s meat may be eaten but the owner has not fulfilled his obligation with this offering. In such a case, the slaughter of the animal does render its meat fit for consumption. Yet, it is not considered as though the animal has been returned to the owner.
וְרֵישׁ לָקִישׁ אָמַר: בְּשׁוֹחֵט בַּעֲלֵי מוּמִין בַּחוּץ.
And Reish Lakish says yet another explanation as to why the principal has not been returned to the owner: This is referring to a case where the thief slaughters blemished animals outside the Temple. A blemished animal may be slaughtered outside the Temple and its meat may be eaten, provided that it is redeemed with money.
תָּהֵי בַּהּ רַבִּי אֶלְעָזָר: לְרַבִּי יוֹחָנָן – שְׁחִיטָה מַתֶּרֶת?! וַהֲלֹא זְרִיקָה מַתֶּרֶת!
Rabbi Elazar wondered about this discussion: According to the explanations attributed to Rabbi Yoḥanan, which are based on the assumption that this is referring to slaughtering a sacrificial animal inside the Temple, is it the slaughtering of the animal that renders it permitted for consumption? But isn’t it the sprinkling of the blood that renders it permitted? It is prohibited to eat sacrificial meat immediately after the slaughter; only after the sprinkling of the blood is it permitted to consume the meat. As the slaughter itself does not render the animal’s meat permitted, there should be no liability to pay the fourfold or fivefold payment.
לְרֵישׁ לָקִישׁ – שְׁחִיטָה מַתֶּרֶת?! וַהֲלֹא פְּדִיָּיה מַתֶּרֶת!
Rabbi Elazar continues: And according to the explanation of Reish Lakish, who states that the case is referring to the slaughter of a consecrated blemished animal outside the Temple, is it the slaughtering of the animal that renders it permitted for consumption? But isn’t it the redemption of the animal that renders it permitted? Since the thief slaughtered a sacrificial animal, it is prohibited to eat its meat until its sanctity is removed by redeeming it with money. Once again, the slaughter itself does not render the meat permitted, and here too, there should be no liability to pay the fourfold or fivefold payment.
אִישְׁתְּמִיטְתֵּיהּ הָא דְּרַבִּי שִׁמְעוֹן: כׇּל הָעוֹמֵד לִזְרוֹק – כְּזָרוּק דָּמֵי, וְכׇל הָעוֹמֵד לִפְדּוֹת – כְּפָדוּי דָּמֵי.
The Gemara comments: Apparently, this following statement of Rabbi Shimon escaped Rabbi Elazar, who asked these questions. Rabbi Shimon holds that any blood that is ready to be sprinkled is considered as though it had already been sprinkled, and likewise, any animal that is ready to be redeemed is considered as if it had already been redeemed.
כׇּל הָעוֹמֵד לִזְרוֹק כְּזָרוּק דָּמֵי – דְּתַנְיָא, רַבִּי שִׁמְעוֹן אוֹמֵר: יֵשׁ נוֹתָר שֶׁהוּא מְטַמֵּא טוּמְאַת אוֹכָלִין, וְיֵשׁ נוֹתָר שֶׁאֵינוֹ מְטַמֵּא טוּמְאַת אוֹכָלִין.
The Gemara proves that Rabbi Shimon maintains these two opinions. Rabbi Shimon holds that any blood that is ready to be sprinkled is considered as though it had already been sprinkled, as it is taught in a baraita that Rabbi Shimon says: There are cases involving leftover sacrificial meat after the time allotted for its consumption [notar], in which the meat is susceptible to contracting ritual impurity of food, and there are cases of leftover sacrificial meat in which the meat is not susceptible to contracting ritual impurity of food.
כֵּיצַד? לָן לִפְנֵי זְרִיקָה – אֵינוֹ מְטַמֵּא טוּמְאַת אוֹכָלִין. לְאַחַר זְרִיקָה – מְטַמֵּא טוּמְאַת אוֹכָלִין.
How so? If sacrificial meat was disqualified due to the fact that it remained overnight, i.e., after the allotted time for that offering, before the sprinkling of its blood, it is not susceptible to contracting ritual impurity of food, as it was never fit for consumption. According to Rabbi Shimon, for an item to be susceptible to contracting ritual impurity of food it must have been permitted for consumption or benefit, either at present or at some point in the past. Sacrificial meat may not be consumed before the sprinkling of its blood, nor may it be consumed if it had been left over after a specific period of time, in most cases overnight. If it was disqualified by being left overnight before its blood had been sprinkled, there was never a time when the meat was permitted. By contrast, if the meat was disqualified by being left over after the sprinkling of the blood, it is susceptible to contracting ritual impurity of food, as it was permitted for consumption at some point after the sprinkling of the blood.
וְקַיְימָא לַן: מַאי ״לִפְנֵי זְרִיקָה״ – קוֹדֶם שֶׁנִּרְאָה לִזְרִיקָה. ״לְאַחַר זְרִיקָה״ – לְאַחַר שֶׁנִּרְאָה לִזְרִיקָה.
And we maintain, as a result of a discussion recorded in tractate Menaḥot (101b): What is the meaning of: Before the sprinkling of the blood? It means before the blood became fit for sprinkling. And what is meant by: After the sprinkling of the blood? This means after the blood became fit for sprinkling, i.e., immediately subsequent to the slaughter.
קוֹדֶם שֶׁנִּרְאָה לִזְרִיקָה לָן – מַאי הִיא? דְּלָא הָוְיָא שְׁהוּת בַּיּוֹם לְמִזְרְקֵיהּ, דְּשַׁחְטֵיהּ סָמוּךְ לִשְׁקִיעַת הַחַמָּה – וְאֵינוֹ מְטַמֵּא טוּמְאַת אוֹכָלִין.
The Gemara elaborates: What is the case in which the meat remained overnight before the blood became fit for sprinkling? Since the blood is fit for sprinkling almost immediately after the animal’s slaughter, how is it possible for the meat to become notar before that stage? The Gemara answers: This is referring to a case where there was not enough time in the day to sprinkle the blood, as he slaughtered the offering immediately prior to sunset. The blood was never fit for sprinkling, as the act of sprinkling must be performed before sunset. And in this case the meat is not susceptible to contracting ritual impurity of food, as there was never a time when it was permitted for consumption.
לְאַחַר שֶׁנִּרְאָה לִזְרִיקָה לָן, דַּהֲוַיא שְׁהוּת בַּיּוֹם לְמִזְרְקֵיהּ – מְטַמֵּא טוּמְאַת אוֹכָלִין. אַלְמָא כָּל הָעוֹמֵד לִזְרוֹק – כְּזָרוּק דָּמֵי,
What is the case where the meat remained overnight after the blood became fit for sprinkling? It was when there was enough time remaining in the day after the slaughter to sprinkle the blood, and therefore the meat is susceptible to contracting ritual impurity of food. The Gemara states its conclusion: Evidently, Rabbi Shimon maintains that any blood that is ready to be sprinkled is considered as though it had already been sprinkled.
וְכׇל הָעוֹמֵד לִפְדּוֹת – כְּפָדוּי דָּמֵי. דְּתַנְיָא, רַבִּי שִׁמְעוֹן אוֹמֵר:
And Rabbi Shimon holds that any animal that is ready to be redeemed is considered as though it is already redeemed, as it is taught in a baraita that Rabbi Shimon says:
