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Week 95 - Monday - 17 September 2001

BAVA KAMMA: CHAPTER 7: MISHNAH 4

If according to two he stole, and according to one witness, or on his own word he slaughtered or sold - he pays kefel, and does not make four or fivefold payments. If he stole and slaughtered on the Sabbath; stole and slaughtered for idolatry; stole from his father's and his father died, and he later slaughtered or sold; stole and consecrated, and later slaughtered or sold - he pays kefel, and does not make four or fivefold payments. Rabbi Shimon says, Sacrifices for which he is responsible, he makes four and fivefold payments; but for which he is not responsible, he is exempt.

Kehati

If - according to - the testimony of - two - witnesses - he stole - an ox or a sheep and according to - the testimony of only - one witness, or on his own word - he himself admits that he slaughtered or sold - he pays kefel - as he was obligated to do by the witnesses to the theft - but does not make four or fivefold payments - for if this is by the testimony of one witness, a single witness cannot generate a monetary obligation; if this is by his own admission, the rule is that a person who admits to a fine is exempt.

The Gemara explains that the basic law is straightforward; our mishnah, however, teaches that one's admission is similar to the case where a single witness testified against him - just as the law regarding one witness is that if a second witness comes later, he joins with the first to obligate the thief for four and fivefold payments, so too if two witnesses come after his admission and testify that he slaughtered or sold, he is obligated to make four or fivefold payments; for, even though one who admits to a fine is exempt, since witnesses later came, he nevertheless is liable. This is so when he did not admit to the theft itself, but when witnesses came and testified that he stole, he then admitted that he had slaughtered or sold, since he did not obligate himself for anything by his admission, for he knew that one person who admits to a fine is exempt; if witnesses came after his admission and testified that he slaughtered or sold, he is liable. If, however, he admitted that he stole, since such an admission obligates him to pay the principal, then even if witnesses came later, he is exempt from paying kefel (Gemara, B. K. 75a; Bartenura).

If he stole and slaughtered on the Sabbath - and became liable for the death penalty because of the killing on the Sabbath, and for any action which entails the death penalty one is exempt from the obligation to pay; and similarly, if he - stole and slaughtered for idolatry - and became liable for the death penalty because of idolatry; or stole from his father's and his father died - and he is one of his father's heirs, and he later slaughtered or sold - so that the killing or selling was not entirely prohibited, since he owned a part of it; or stole and consecrated - the animal, in a manner in which the consecration took effect, such as consecrating after the owner despaired, so that the act of dedication was accompanied by both despair (ye'ush) and a change of ownership, and later slaughtered or sold - so that he killed or sold property belonging to the Temple, and not belonging to the owner; in all these cases - he pays kefel, and does not make four or fivefold payments - as explained with respect to each individual.

Rabbi Shimon says, Sacrifices for which he is responsible - i.e. for which if they are lost or stolen the owner is obligated to bring another in their place, e.g., if he said,"I commit myself to bring a sacrifice," he makes four and fivefold payments - the Gemara explains that Rabbi Shimon does not disagree with the First Tanna, concerning the law which was taught above, "stole and consecrated, and later slaughtered or sold," but rather concerning the ruling stated by the Sages in another place, namely, that a person who steals a consecrated animal from the house of the owner is exempt from paying kefel and four and fivefold payments, as it is written, "and it be stolen out of the man's house" (Ex. 22:6), - and not from the house of that which is dedicated. Rabbi Shimon disagrees with this, holding that concerning consecrated animals for which he is responsible the person who steals or kills them is obligated to make four and fivefold payments, since he is responsible for them, we regard them as being "stolen out of a man's house," i.e., he killed that belonging to the owner; but - if a person steals and slaughters consecrated animals - for which he - the owner - is not responsible - i.e., when donating he said, This is a sacrifice, he is exempt - as explained above, for it is written, "and it be stolen out of the man's house," and not from the house of that which is dedicated.

The Gemara explains that even regarding sacrifices for which he is responsible, Rabbi Shimon obligates him for four and fivefold payments only if he slaughtered them while unblemished within the Temple precincts in the name of the owner and the blood was poured out, so that when done the slaughtering was a fit one, but only the owner did not fulfill his obligation to bring a sacrifice, since the sacrifice was not rendered fit by the sprinkling of the blood on the alter; or, e.g., if he slaughtered them properly but not in the name of the owner, in which case the sacrifice is valid, but the owner does not fulfill his obligation, as we learn, "All sacrifices slaughtered not under their own name are valid, but they are not accredited to the owner in fulfillment of his obligation" (Zev. 1:1); or, e.g., if he slaughtered blemished animals outside the Temple precincts, i.e., at the time they were dedicated they were blemished, and it was necessary to redeem them, but the thief slaughtered them outside the Temple precincts: since it is to be redeemed, it is considered as if it was already redeemed, this is therefore a fit slaughtering, and he is liable for it. But if he slaughtered unblemished animals outside the Temple precincts, slaughtering them does not allow one to eat them, and Rabbi Shimon holds that slaughter which is not fit is not regarded as slaughter, hence he is not liable for four and fivefold payments. Similarly, if he slaughtered them when unblemished within the Temple precincts in the name of the owners, since the principal was restored to the owner, he is exempt from four and fivefold payments. The law is not in accordance with Rabbi Shimon.

Concerning the topic of stealing and consecrating taught in our mishnah, the Gemara asks, why is the thief not obligated to make four and fivefold payments for the actual sanctification of the animal, just as he is for selling it, for what difference does it make whether his animal was sold to another person or "sold" to heaven? The Gemara answers that our mishnah refers to the case of an animal which was consecrated to be a sacrifice on the altar; since the sacrifice atones for the owner and is called by his name, the sanctification is therefore not like selling, and the thief is exempt from four and fivefold payments. If, however, he consecrated the animal for Temple upkeep, so that it entirely left the ownership of the consecrator, he is obligated to make four or fivefold payments for the consecration, just as for ordinary selling.

BAVA KAMMA: CHAPTER 7: MISHNAH 5

If he sold it except for a hundredth part of it, or had a partnership in it; if a person slaughters and it became carrion under his hand; if he pierces, or if he cuts loose - he pays kefel, but does not make four or fivefold payments. If he stole in the domain of the owner and slaughtered or sold outside their domain, or stole outside their domain and slaughtered and sold within their domain, or stole and slaughtered or sold outside their domain - he makes four or fivefold payments. But if a person stole and slaughtered in their domain, he is exempt.

Kehati

Our mishnah teaches that if a person steals an ox or a sheep and sells it, he is liable for four or fivefold payments only if he sold the entire animal without retaining any of it, for "sold it" means all of it. The mishnah also teaches that the thief is liable for the theft only if he acted with it in one of the ways in which acquisition of movable property is effected.

If he - the thief - sold it - the ox or the sheep - except for a hundredth part of it - i.e., he retained for himself a tiny portion of it; the Gemara explains that he left for himself something which slaughtering renders permissible for him, such as a hand or a foot, which may not be eaten without slaughtering, as it is written, "and he killed it or sold it," which was interpreted as, until he sells all the things which are made permissible by slaughtering; but if he kept its horns or its shearings, which are inedible and which are not connected to the permission effected by slaughtering, they are not regarded as a remainder, or - if the thief - had a partnership in - the ox or sheep, before he stole it, so that the selling was not entirely prohibited, since he owned a part of the animal; or if a person slaughters and it became carrion - became a nevelah a carcass not slaughtered properly - under his hand; - or - if he pierces - the animal, i.e., he killed it by piercing its nostrils with a sharp instrument, or if he cuts loose - the windpipe and esophagus, and such actions are not regarded as ritual slaughtering at all; in all these cases - he pays kefel - for the theft, but does not make four or fivefold payments - as explained in each individual case.

If he stole - the animal which stood - in the domain of the owner and - took out the animal before the slaughtering or selling from the domain of its owner and - slaughtered or sold it outside his domain - so that when he took it out he acquired it and became a thief regarding it, for the law is that a thief does not become a thief, and liable for the theft, until he deals with the stolen article in one of the ways in which acquisition of movable property is effected, or stole outside his domain - e.g., the animal was not in the domain of the owner, he rather found it on the road and stole it, i.e., he acquired it by drawing, thereby becoming a thief as regards the animal, and - brought the animal into the domain of the owner and then - slaughtered or sold within his domain, or - he found the animal outside the domain of the owner, and acquired it for the purpose of stealing it, and - stole and slaughtered it outside his domain - in all these cases - he makes four or fivefold payments - since he acquired it, thereby becoming liable for it.

But if a person stole and slaughtered in his - the owner's - domain - i.e., he did not acquire the animal before he killed or sold it, i.e., he did not lift it, since lifting effects acquisition everywhere (Tosafot), he is exempt - since he did not acquire it, he is not liable for anything.

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