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Week 96 - Wednesday - 26 September 2001

BAVA KAMMA: CHAPTER 9: MISHNAH 8

"Where is my deposit?" He says to him, "It was stolen"; "I adjure you," and he says, "Amen," and witnesses testify against him that he stole it - he pays double kefel. If he admitted by himself, he pays the principal, and homesh, and a guilt offering.

Kehati

This mishnah is a continuation of the last section of the previous mishnah. It teaches the law concerning an unpaid custodian who claims that an article entrusted to him was stolen.

If A said to B: "Where is my deposit - which I entrusted to you?" He - B - says to him, "It was stolen - from me," and an unpaid custodian is exempt for theft; A says to B: "I adjure you - that it is as you say," and he - B - says, "Amen" - we have already mentioned in the previous mishnah that the acceptance of an oath is the equivalent of taking the oath, and witnesses testify against him that he - B himself, - stole it - himself, he pays kefel - since whoever claims theft, and it transpires that he himself stole the object, has the law of a thief.

If he admitted by himself - that he stole it, he pays the principal, and homesh, and a guilt-offering - but he does not pay kefel, as it is written, "he whom the court shall condemn shall pay double to his neighbor" (Ex. 22:8) - this excludes one who incriminates himself. We learn from this that whoever admits to a fine is exempt.

Regarding the person who claims loss, the preceding mishnah teaches, "the witnesses testify against him that he consumed it," while regarding the person who claims theft, our mishnah teaches, "and the witnesses testify against him that he stole it." The Tosafists write about this, "'And he consumed it' was used above to be inclusive, that even though it no longer exists, he is exempt from kefel when claiming 'loss,' and here 'that he stole it' is used to be inclusive, that even though it still exists, he is liable to pay kefel, since he claims theft" (B. K. 63b, caption Veha-edim).

BAVA KAMMA: CHAPTER 9: MISHNAH 9

If a person robbed his father and swore to him, and he died - he pays principal and homesh to his sons or to his brothers; and if he does not want, or if he does not have - he borrows, and the creditors come and collect payment.

Kehati

If a person robbed his father and swore to him - falsely, that he had not stolen from him, and he - the father - died - and the stolen object is in existence (Rambam, Bartenura), he pays principal and homesh to his - the father's - sons - who are the brothers of the thief, or to his - father's - brothers - if he did not have any other sons; even though he also is an heir of his father, he may not retain anything as his share, since he is not atoned until he removes the stolen object in its entirety from his possession, as it is written (Lev. 5:23), "He shall restore that which he took by robbery" (Rashi). Tosafot interpret this as follows: "his sons" - the sons of the thief; "or to his brothers" - the brothers of the thief, if he has no sons, for we consider it as if he were dead, and his sons or his brothers inherit him, since he must remove the stolen object from his possession.

And if he does not want - to lose his share of the inheritance of his father, or if he does not have - so much property that he can waive his portion in the inheritance, he borrows - from others, against his share in the stolen object, and he removes the stolen object from his possession by giving it to his brothers, thereby fulfilling the mitzvah to return it, and the creditors come and collect payment - from the stolen object, the share which the thief has in it. All this is not according to strict law; but the Sages were lenient in this case, allowing him to engage in an evasion, so that the stolen object would at all events leave his possession, and so that he would not lose his share of the inheritance (Hameiri). The Gemara says that if he is his father's only heir, then he gives the stolen object to his creditor as repayment of his debt, or for his wife's ketubah (marriage contract), or to a charity, but he must inform them, saying: this was the object stolen from my father.

We have explained our mishnah according to Rashi and Tosafot; Hameiri also interprets the mishnah in this manner. Rambam, however, interprets it differently: he holds that the thief is under no obligation to give his father's heirs his share in the stolen object, since it is his by right of inheritance, but “if the stolen object exists, the thief must remove it from his possession," and he may later come back and receive his share from it. Rambam's version of our mishnah accordingly reads, "If a person robbed his father and swore to him, and he died - this one pays principal and homesh to his brothers or sons" (and not "sons or brothers," as in our version), i.e., since there is an obligation to return the stolen article, the thief gives the stolen article and the homesh to his brothers, who are his father's heirs, and makes a reckoning with them to receive back from them the portion due to him in the inheritance "And if he has no brothers, so that he is the sole heir, he removes the stolen object from his possession (by giving it to) his (the thief’s) son" Rambam interprets the second section of our mishnah as follows: "and if he does not want" - to give the brothers his share in the stolen object, "or if he does not have" - either brothers or sons, "he borrows, and the creditors come and collect payment" - i.e., he gives the stolen object to his creditor as repayment of his debt, or he can also give it as a ketubah settlement to his wife or to the charity chest, for it is his property, since he attained it as an heir, but he must remove it from his possession; he may do so even by repaying a debt or in these other ways, but he must inform the creditor, that this was stolen from his father (Hil. Gezelah 8:2-3; commentary on the mishnah).

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