Babylonian Talmud: Tractate Baba Kamma

Folio 112a

applies prior to Renunciation.¹

R. Adda b. Ahabah read the statement of Rami b. Hama with reference to the following [teaching]:²  'If their father left them money acquired from usury they would not have to restore it even though they [definitely] know that it came from usury. [And it was in connection with this that] Rami b. Hama said that this proves that the possession of an heir is on the same footing as the possession of a purchaser,³  whereas Raba said: I can still maintain that the possession of an heir is not on the same footing as the possession of a purchaser, for here there is a special reason, as Scripture states: Take thou no usury of him or increase but fear thy God that thy brother may live with thee⁴  [as much as to say.] 'Restore it to him so that he may live with thee.' Now, it is the man himself who is thus commanded⁵  by the Divine Law, whereas his son is not commanded⁵  by the Divine Law. Those who attach the argument⁶  to the Baraitha⁷  would certainly connect it also with the ruling of our Mishnah,⁸  but those who attach to our Mishnah might maintain that as regards the Baraitha⁹  Rami b. Hama expounds it in the same way as Raba.¹⁰

Our Rabbis taught: If one misappropriated [foodstuff] and fed his children, they would not be liable to repay. If, however, he left it [intact] to them, then if they are adults they would be liable to pay, but if minors they would be exempt. But if the adults pleaded: 'We have no knowledge of the accounts which our father kept with you.' they also would be exempt. But how could they become exempt merely because they plead.'We have no knowledge of the accounts which our father kept with you'?¹¹  Said Raba: What is meant is this, 'If the adults pleaded: "We know quite well the accounts which our father kept with you and are certain that there was no balance in your favour" they also would be exempt.'Another [Baraitha] taught: If one misappropriated [foodstuff] and fed his children, they would not be liable to repay. If, however, he left it [intact] to them and they consumed it, whether they were adults or minors, they would be liable. But why should minors be liable? They are surely in no worse a case than if they had wilfully done damage?¹²  — Said R. Papa: What is meant is this: If, however he left it [intact] before them and they had not yet consumed it, whether they were adults or minors, they would be liable.¹³

Raba said:¹⁴  If their father left them a cow which was borrowed by him, they may use it until the expiration of the period for which it was borrowed, though if it [meanwhile] died they would not be liable for the accident.¹⁵  If they were under the impression that it was the property of their father, and so slaughtered it and consumed it, they would have to pay for the value of meat at the cheapest price.¹⁶  If their father left them property that forms a [legal] security, they would be liable to pay. Some connect this [last ruling] with the commencing clause,¹⁷  but others connect it with the concluding clause.¹⁸  Those who connect it with the commencing clause¹⁷  would certainly apply it to the concluding clause¹⁹  and thus differ from R. Papa.²⁰  whereas those who connect it with the concluding clause²¹  would not apply it in the case of the commencing clause,²²  and so would fall in with the view of R. Papa.²⁰  for R. Papa stated:²³  If one had a cow that he had stolen and slaughtered it on the Sabbath,²⁴  he would be liable,²⁵  for he had already become liable for the theft²⁶  prior to his having committed the sin of violating the Sabbath²⁷  but if he had a cow that was borrowed and slaughtered it on the Sabbath, he would be exempt,²⁸  for in this case the crime of [violating the] Sabbath and the crime of theft were committed simultaneously.²⁹

Our Rabbis taught: He shall restore the misappropriated article which he took violently away.³⁰  What is the point of the words 'which he took violently away'?³¹  Restoration should be made so long as it is intact as it was at the time when he took it violently away. Hence it was laid down: If one misappropriated [foodstuff] and fed his children they would not be liable to repay.³²  If, however, he left it to them [intact], whether they were adults or minors, they would be liable; Symmachus, however, was quoted as having ruled that [only] adults would be liable but minors would be exempt. The son³³  of R. Jeremiah's father-in-law [once] bolted the door in the face of R. Jeremiah.³⁴  The latter thereupon came to complain about this to R. Abin,³⁵  who however said to him: 'Was he³⁶  not merely asserting his right to his own?'³⁷  But R. Jeremiah said to him: 'I can bring witnesses to testify that I took possession of the premises during the lifetime of the father.'³⁸  To which the other³⁹  replied: 'Can the evidence of witnesses be accepted

1. For the mere transfer of possession, if the owner has not yet given up hope, is surely of no avail.
2. Tosef. B.M. V, 8; ibid. 62a and supra 94b.
3. And since there was here a change of possession the heirs are under no liability.
4. Lev. XXV, 36.
5. To make restoration.
6. Between Rami b. Hamah and Raba.
7. Dealing with usury.
8. Dealing with robbery where there is no apparent reason for the exemption except the view of Rami b. Hama.
9. Dealing with usury.
10. I.e., on the strength of the inference from Lev. XXV, 36.
11. For since they know of the robbery and the liability is definite, how could they be released by a plea of uncertainty as to the payment; cf. Rashi a.l. but also B.K. X, 7.
12. In which case they are exempt; cf. supra 87a.
13. [Since it is in intact it is considered to be then in the possession of the owner.]
14. Cf. Keth. 34b.
15. As the liabilities of the contract do not pass to them at least so long as they have not started using it; v. however H.M. 341 where no distinction is made.
16. Which is generally estimated to be two-thirds of the ordinary price; cf. B.B. 146b; v. also supra p. 98.
17. Dealing with the case where the cow died of itself.
18. Stating the law where it was slaughtered and consumed by them.
19. As there is certainly more liability where they slaughtered the cow than where it died of itself.
20. Whose ruling is going to be stated soon.
21. V. p. 655, n. 8.
22. V. p. 655. n. 7.
23. Cf. Keth. 34b.
24. In violation of the Sabbath and thus became subject to capital punishment; in accordance with Ex. XXXI, 14-15; v. also supra p. 408
25. For fivefold payment, as prescribed in Ex. XXI, 37.
26. So far as double payment is concerned, in accordance with ibid, XXII, 3.
27. And since he had already become liable for double payment at the time of the theft, the additional threefold payment which is purely of the nature of a fine is according to this view not affected by the fact that at the time of the slaughter he was committing a capital offence, as also explained in Keth. 34b.
28. From civil liability.
29. I.e., at the time of the slaughter when he had to become liable also for the Principal which is a purely civil obligation and which must therefore be merged in the criminal charge; v. also supra p. 407.
30. Lev. V, 23.
31. Is this not redundant?
32. For the foodstuff was no longer intact.
33. Who was a minor.
34. Who was desirous of taking possession of premises that belonged to his father-in-law.
35. MS.M. 'R. Abba'.
36. I.e., the son of the father-in-law.
37. In accordance with Num. XXVII, 8.
38. Who disposed of them to me; cf. B.B. III, 3.
39. I.e., R. Abin or R. Abba.

where the other party is not present?'¹  And why not? Was it not stated: 'Whether adults or minors they would be liable'?²  — The other rejoined: 'Is not the divergent view of Symmachus³  under your nose?'⁴  He⁵  retorted: 'Has the whole world made up its mind⁶  to adopt the view of Symmachus just in order to deprive me of my property? Meanwhile the matter was referred from one to another till it came to the notice of R. Abbahu⁷  who said to them: Have you not heard of what R. Joseph b. Hama reported in the name of Oshaia? For R. Joseph b. Mama said that R. Oshaia stated: If a minor collected his slaves and took possession of another person's field claiming that it was his, we do not say, Let us wait till he come of age, but we wrest it from him forthwith and when he comes of age he can bring forward witnesses [to support his allegation] and then we will consider the matter? — But what comparison is there? In that case we are entitled to take it away from him because he had no presumptive title to it from his father, but in a case where he has such a presumptive title from his father, this should surely not be so.

R. Ashi⁸  said that R. Shabbathai stated: [Evidence of] witnesses may be accepted even though the other party to the case is not present. Thereupon R. Johanan remarked in surprise:⁹  Is it possible to accept evidence of witnesses if the other party is not present? R. Jose b. Hanina accepted from him the ruling [to apply] in the case where e.g., [either] he¹⁰  was [dangerously] ill, or the witnesses were [dangerously] ill, or where the witnesses were intending to go abroad, and¹¹  the party in question was sent for but did not appear.

Rab Judah said that Samuel stated that [evidence of] witnesses may be accepted even if the other party is not present. Mar Ukba, however, said: It was explained to me in so many words from Samuel that this is so only where e.g., the case has already been opened [in the Court] and the party in question was sent for but did not appear, whereas if the case has not yet been opened [in the Court] he might plead: 'I prefer to go to the High Court of Law'.¹²  But if so even after the case had already been opened why should he similarly not plead: 'l prefer to go to the High Court of Law'? — Said Rabina: [This plea could not be put forward where] e.g., the local Court is holding a writ [of mandamus] issued by the High Court of Law.

Rab said: A document can be authenticated¹³  even not in the presence of the other party [to the suit], whereas R. Johanan said that a document cannot be authenticated in the absence of the other party to the suit. R. Shesheth said to R. Joseph b. Abbahu: I will explain to you the reason of R. Johanan. Scripture says: And it hath been testified to its owner and he hath not kept him in;¹⁴  the Torah thus lays down that the owner of the ox has to appear and stand by his ox [when testimony has to be borne against it]. But Raba said: The law is that a document may be authenticated even not in the presence of the other party; and even if he protests aloud before us [that the document is a forgery]. If, however, he says, 'Give me time till I can bring witnesses, and I will invalidate the document', we have to give him time.¹⁵  If he appears [with witnesses] well and good, but if he does not appear we wait again over the following Monday and Thursday and Monday.¹⁶  If he still does not appear we write a Pethiha¹⁷  out against him to take effect after ninety days. For the first thirty days we do not take possession of his property as we say that he is busy trying to borrow money; during the next thirty we similarly do not take possession of his property as we say perhaps he was unable to raise a loan and is trying to sell his property; during the last thirty days we similarly cannot take possession of his property as we still say that the purchaser¹⁸  himself is busy trying to raise the money. It is only if after all this he still does not appear that we write an adrakta¹⁹  on his property. All this, however, is only if he has pleaded: 'I will come [and defend]', whereas if he said: 'I will not appear at all' we have to write the adrakta forthwith; again these rulings apply only in the case of a loan, whereas in the case of a deposit we have to write the adrakta forthwith.²⁰  An adrakta can be attached only to immovables but not to movables, lest the creditor should meanwhile carry off the movables and consume them so that should the debtor subsequently appear and bring evidence which invalidates the document, he would find nothing from which to recover payment. But if the creditor is in possession of immovables we may write an adrakta even upon movables.²¹  This, however, is not correct; we do not write an adrakta upon movables even though the creditor possesses immovables, since there is a possibility that his property may meanwhile become depreciated in value.²²  Whenever we write an adrakta we notify this to the debtor, provided he resides nearby,²³  but if he resides at a distance this is not done. Again, even where he resides far away if he has relatives nearby or if there are caravans which take that route, we should have to wait another twelve months until the caravan is able to go there and come back, as Rabina waited in the case of Mar Aha twelve months until a caravan was able to go to Be-Huzae²⁴  and come back. This, however, is no proof for in that case²⁵  the creditor was a violent man, so that should the adrakta have come into his hand it would never have been possible to get anything back from him, whereas in ordinary cases²⁶  we need only wait for the usher [of the Court] to go on the third day²⁷  of the week and come back on the fourth day of the week so that on the fifth day of the week he himself can appear in the Court of Law. Rabina said: The usher of the Court of Law²⁸  is as credible²⁹  as two witnesses; this however applies only to the imposition of Shamta,³⁰  but in the case of Pethiha,³¹  seeing that he³²  may be involved in expense through having to pay for the scribe,³³  this would not be so.³⁴

Rabina again said: We may convey a legal summons³⁵  through the mouth of a woman or through the mouth of neighbours; this rule, however, holds good only where the party was at that time not in town,

1. And a minor is considered in law as absent to all intents and purposes. For a different description of the case cf. J. Sanh. III, 9.
2. To restore misappropriated articles inherited by them to the legitimate proprietor.
3. Who releases the minor heirs.
4. Lit., 'at your side'.
5. I.e., R. Jeremiah.
6. Lit., 'doubled itself'.
7. Who was the special master of R. Jeremiah, cf. B.B. 140a and Shebu. 37b; v. also B.M. 16b where R. Abbahu called him 'Jeremiah, my son.'
8. According to R. Isaiah Berlin, this must have been an earlier R. Ashi since R. Johanan refers to this statement, but, as becomes evident from J. Sanh., III. 9, the authority here mentioned was either R. Jose or more correctly R. Assi. A similar confusion is found in Ta'an. 14a. Bek. 25a a.e.
9. Cf. supra 76b.
10. I.e., the plaintiff; cf. H.M. 28. 16.
11. Whether 'and' or 'or' should be read here, cf. Tosaf. a.l. and on B.K. 39a; the text in J. Sanh. III. 9, however, confirms the former reading.
12. In the Land of Israel; cf. supra p. 67 and Sanh. 31b.
13. Either by taking oral evidence or by collating the signatures; cf. Keth. II. 3-4.
14. Ex. XXI, 29.
15. As a rule for thirty days; cf. B.M. 118a.
16. I.e., three sittings of the Court; cf. supra p. 466.
17. I.e., a warrant, containing also a writ of anathema. It was, besides, the opening of preliminary legal proceedings.
18. Who might perhaps have bought some of his property.
19. Lit. 'tracing and authorisation', i.e., a legal order to trace the debtor's property for the purpose of having it seized and assessed to the creditor for his debt; v. B.M. (Sonc. ed.) p. 95. n. 8.
20. For the bailee has no right to detain the deposit for any period of time whatsoever.
21. For the immovable possessions of the creditor safeguard the repayment to the debtor, should occasion arise.
22. And would not suffice to meet the repayment.
23. Within ten parasangs i.e. forty mil, the walking distance of one day, as in M.K. 21b; see Tur, H.M. 98, 9; cf. however Maim. Yad, Malweh we-Loweh, XXII, 4.
24. [The modern Khuzistan, S.W. persia. Obermeyer, op. cit. p. 200 points out that the distance between Matha Mehasia (Sura) the seat of Rabina's court, and Khuzistan could be easily covered by a caravan within a three weeks' journey, and that the twelve months allowed by Rabina was probably due to some serious obstruction that impeded progress along the caravan route.]
25. Dealt with by Rabina.
26. Lit., 'here'.
27. So Tur. loc. cit., but Maim. loc. cit. reads 'the second day'.
28. Lit., 'of our Rabbis'.
29. When stating that the party refuses to appear before the Court.
30. I.e., oral ban.
31. V. supra p. 659, n. 2.
32. [The recalcitrant litigant, when he wishes to have the ban lifted.]
33. [For drafting the writ of anathema.]
34. For the usher would then have to corroborate his statements by some further evidence.

    Lit., 'give a fixed date'.