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Week 94 - Shabbat - 15 September 2001

BAVA KAMMA: CHAPTER 6: MISHNAH 6

If a spark flew out from under the hammer and caused damage, he is liable. If a camel laden with flax was passing through the public domain, and its flax entered into the store, and it caught fire from the candle of the storekeeper and set fire to the building, the owner of the camel is liable. If the storekeeper placed his candle outside, the storekeeper is liable. Rabbi Yehudah says, If it were a Hanukkah light, he is exempt.

Kehati

If a spark flew out from under the hammer - of a smith or a polisher, and caused damage - e.g., it fell on flax and set it on fire, he is liable - since he is like the person who casts a stone or an arrow (Rambam Hil. Hovel u-Mazik 6:11).

If a camel laden with flax was passing through the public domain, and its flax entered into the store, and it - the flax - caught fire from the candle of the storekeeper - which was burning in the store - and - the flax - set fire to a building, the owner of the camel is liable - since he had too large a load of flax (B. K. 22b; Rambam, Hil. Nizekei Mamon 14:13).

If the storekeeper placed his candle outside - and a camel loaded with flax passed by and it caught on fire from the candle and set fire to the building, the storekeeper is liable - even for the value of the flax, since he left his candle outside (Gemara loc. cit., Rambam loc. cit.).

Rabbi Yehudah says, If it were - set on fire by - a Hanukkah light, he - the storekeeper - is exempt - since he was permitted to place it outside, for it is a mitzvah to place the Hanukkah lamp at the entrance to the house, on the outside. The law is not in accordance with Rabbi Yehudah (Rambam, loc. cit.)

BAVA KAMMA: CHAPTER 7: MISHNAH 1

The measure of twofold payments is greater than the measure of four and fivefold payments, for the measure of twofold payments applies to that which has life and to that which has no life, but the measure of four and fivefold payments applies only to an ox and a sheep, as it is written, "If a man steals an ox, or a sheep, and slaughters it, or sells it ..." (Ex. 21:37). A person who steals from a thief does not make twofold payments, nor does a person who slaughters or sells after the thief make four or fivefold payment.

Kehati

From here until the end of our tractate, Bava Kamma teaches the laws of theft, wounding, and robbery. Our chapter deals with the laws of theft. "Who is a thief? One who takes property from someone in secret, without the knowledge of the owner, e.g., a pickpocket, who takes his fellow's money, without the owner seeing this, and all similar cases. A thief about whom two fit witnesses testified that he stole, is obligated to make twofold payment (kefel) to the owner of the stolen object, as it is written, 'If the theft be found in his hand ... he shall pay double' (Ex. 22:3), and 'If the thief be found, he shall pay double' (Ex. 22:6): if he stole one dinar, he pays two; if he stole an ass or clothing, or a camel, he pays twice its value, so that he loses in the amount that he wanted to take away from his fellow" (Rambam, Hil. Genevah 1:3-4); these are the "twofold payments" which the thief must make. Our mishnah teaches that kefel payments are made for any type of stolen item; however, the Torah states of an ox or a sheep: "If a man steals an ox, or a sheep, and slaughters it, or sells it, he shall pay five oxen for an ox, and four sheep for a sheep" (Ex. 21:37).

The rule of twofold payments - by the person who only steals - is greater - applied more - than the measure of four and fivefold payments - made by the thief who slaughters or sells, for the rule of twofold payments applies to that which has life and to that which has no life - as it is written, concerning a custodian claiming that an article in his care was stolen, "For every matter of trespass, whether it be for ox, for sheep, for clothing... he shall pay double to his neighbor" (Ex. 22:8), but the measure of four and fivefold payments applies only to an ox and a sheep, as it is written, "If a man steals an ox, or a sheep, and slaughters it, or sells it ... - he shall pay five oxen for an ox, and four sheep for a sheep." The Torah repeats "ox or sheep," for instead of saying, "If a man steals an ox and slaughters it, or sells it, he shall pay five oxen for it, and four sheep for a sheep," it says, "If a man steals an ox, or a sheep ... he shall pay five oxen for an ox, and four sheep for a sheep," in order to teach that this applies only to an ox or a sheep (Gemara, B. K. 67b).

A person who steals - a stolen article - from a thief - who had stolen it - does not make twofold payment - for it, neither to the owner nor to the first thief, as it is written, "and it be stolen out of the man's house; if the thief be found, he shall pay double" (Ex. 22:6), from which it was learned, from the house of the man, and not from the house of the thief. Even though the object belongs to the owner, since it was not stolen from his domain, the thief does not pay him kefel; and he does not pay to the first thief, because the object is not his; and even if the owner despaired, the thief did not acquire the stolen object, since ye'ush (desperation) alone does not effect acquisition unless it is accompanied by a change of ownership, and there is no change of ownership in this case, since a change of ownership is only such if he sold it or gave it to someone else (Gemara); similarly, nor does a person who - steals from the thief an ox or a sheep which the thief had stolen and - slaughters or sells it, make four or fivefold payment - since he is not liable for kefel, he is not liable for four or fivefold payments, because the Torah stated four and fivefold, and not triple and fourfold payments (Tosafot Hadashim), i.e., the four and fivefold payments include the kefel, and in a case where he is exempt from kefel, only triple or four fold payments remain.

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