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Week 96 - Tuesday - 25 September 2001

BAVA KAMMA: CHAPTER 9: MISHNAH 6

If he gave him the principal, but did not give him the fifth (homesh); if he waived the principal, but did not waive the fifth; if he waived both, except for less than the value of a perutah of the principal - he is not obligated to go after him. If he gave him the homesh, but did not give him the principal; he waived the fifth, but did not waive the principal; he waived both, except for the value of a perutah of the principal - he is obligated to go after him.

Kehati

Our mishnah is a continuation of the previous mishnah, and elaborates on the law to return a stolen object.

If he - the thief - gave him - returned to the party from whom the object had been stolen - the principal, but did not give him the fifth (homesh) - which he is obligated to add to the principal, as was explained in the introduction to the previous mishnah; or if he - the party from whom the object had been stolen - waived - the principal, but did not waive the fifth; or - if he - the party from whom the object had been stolen - waived both - the principal and the homesh, except for less than the value of a perutah of the principal - even though this is now the principal, since it is less than the value of a perutah, he is not obligated to go after him - in order to pay him the rest, rather the party from whom the object was stolen must come and take it; even though the stolen object itself exists, we are not afraid that this principal, which is less than the value of a perutah, will increase in value and be worth a perutah (Gemara; Rambam, Hil. Gezelah 7:11).

But if he - the thief - gave him - the party from whom the object had been stolen - the homesh, but did not give him the principal; or if he - the party from whom the object had been stolen - waived the fifth, but did not waive the principal; or if he waived both - the principal and the homesh, except for the value of a perutah of the principal - there still is an obligation to return the stolen object; therefore - he is obligated to go after him - the party from whom the object was stolen, even if he is in a distant land, in order to return the remainder to his hands and be atoned.

BAVA KAMMA: CHAPTER 9: MISHNAH 7

If he gave him the principal, and swore to him regarding the homesh, he must pay a homesh on the homesh, until the principal has been reduced to less than the value of a perutah. And similarly concerning a deposit, as it is written, "in a matter of deposit, or of pledge, or of robbery, or have oppressed his neighbor; or have found that which was lost, and deal falsely therein, and swear to a lie" (Lev. 5:21-22), he must pay principal and homesh and a guilt-offering. "Where is my deposit?" He says to him, "It was lost"; "I adjure you," and he says, "Amen," and witnesses testify against him that he consumed it - he pays the principal. If he admits by himself, he pays principal, and homesh, and a guilt offering.

Kehati

After the thief had sworn and admitted, and had become liable for principal and homesh, If he gave him - the party from whom the object had been stolen, only - the principal, and - when he later demanded payment of the homesh, he falsely - swore to him regarding it, claiming that he had already paid it, and later admitted that he had not paid the homesh, he must pay a homesh on the homesh - since the homesh has become a principal, and he adds to this homesh its fifth, i.e. the fifth of the fifth, with the process continuing ad infinitum: every homesh about which he takes an oath and admits becomes a principal, to which another homesh must be added, as it is written, "and shall add the fifth part (Heb. hamishitav, lit. 'its fifth parts') more thereto" (Lev. 5:24) - the Torah included many fifths for one principal, until the principal - i.e., the last homesh about which he takes an oath, and which became principal - has been reduced to less than the value of a perutah - e.g., he steals from his fellow the sum of 32 perutah, and denied stealing it and took an oath on it, and retracted and admitted: he is obligated to pay 32 perutah, which is the principal, and an additional 8 perutah which is the homesh (i.e., one fourth of the principal, and it is called homesh, one fifth, since it is one fifth of the total sum of the principal - homesh, i.e., one fifth of the gross sum). The thief paid the principal, denied and took an oath concerning the homesh, i.e., on 8 perutot, that these had already been paid, and then retracted and admitted. He now is obligated to pay, in addition to the 8 perutot, an additional 2 perutot, which are the homesh of the original homesh.

If he denied and swore falsely on these 2 perutot, and retracted and admitted, he is obligated to pay an additional homesh on them, i.e., an additional one-half perutah. And if he denied and swore falsely concerning this half-perutah, he does not add an additional homesh, since this homesh, which he denied, was less than a perutah.

And similarly concerning a deposit - if A gave a deposit to B, and later B denied the existence of the deposit and swore falsely, and later retracted and admitted, he is obligated to pay him principal and homesh, and to bring a guilt-offering, as it is written, "in a matter of deposit, or of pledge - (i.e. his fellow gave him money as a loan), or of robbery, or have oppressed his neighbor - (by returning the wages of a hired laborer); or have found that which was lost, and deal falsely therein, and swear to a lie" - if he retracted and admitted, he must pay principal and homesh - to the owner - and - bring - a guilt-offering - as was explained above.

A entrusted a deposit with B; some time later A comes to reclaim his deposit, and he says to B, "Where is my deposit - which I left with you?" He - B - says to him, "It - your deposit - was lost" - and an unpaid custodian is exempt for loss. A says to B, "I adjure you - that it is as you say, that the deposit was lost," and he - B - says, "Amen" - and the acceptance of an oath is the equivalent of taking an oath, and witnesses - later come and - testify against him that he - B - consumed it - the deposit, he pays the principal - and not a homesh or a guilt-offering, for the obligation of homesh and guilt-offering applies only when the person himself admits, as it is written concerning theft from the convert, "Then they shall confess their sin" (Num. 5:7), teaching that he is obligated for homesh and a guilt-offering only when he makes an admission; nor is there any obligation for double payment here, since A did not claim that it had been stolen.

If he admits by himself - that he consumed the deposit, he pays principal, and a homesh, and a guilt-offering - Tosafot explains that since the witnesses did not obligate him to pay kefel, even if he admits after the witnesses came, he pays the homesh; the mishnah only stated "admits by himself" because of the following mishnah, as will be explained there.

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