Babylonian Talmud: Tractate Baba Kamma

Folio 71a

nevertheless, since the thief was prepared to transfer the possession [of the stolen objects] to him by this procedure it should be considered a sale.

IF HE STEALS AND SLAUGHTERS ON THE DAY OF ATONEMENT etc. I would ask, why [should this be so]? It is true that no capital punishment is attached here,¹  but there will at least be the punishment of lashes, and is it not an established ruling²  that no man who is lashed can be ordered to pay?³  — It may, however, be said that the Mishnah is in accordance with R. Meir who said⁴  that a person who is lashed may also be ordered to pay.³  But if in accordance with R. Meir, why should there be no liability even for slaughtering on the Sabbath?⁵  And should you affirm that while he holds that one may be lashed and be ordered to pay, he⁶  does not hold that one may be condemned to death and also ordered to pay. [I would ask,] does he really not [maintain this second ruling]? Was it not taught:⁷  'If he steals and slaughters on the Sabbath or if he steals and slaughters to serve idols,⁸  or if he steals an ox condemned to be stoned⁹  and slaughters it, he has to make four-fold or five-fold payment according to R. Meir,¹⁰  but the Rabbis rule that there is exemption'? — I might reply that this ruling applies to all cases save this, for it was stated with reference to it that R. Jacob stated that R. Johanan said, or as others say, that R. Jeremiah stated on behalf of R. Simeon b. Lakish that R. Ile'a and the whole company¹¹  said in the name of R. Johanan that the slaughter [in that case] was carried out by another person [acting on behalf of the thief].¹²  But how could the one¹³  commit an offence¹⁴  and the other¹⁵  be liable to a fine?¹⁶  — Raba replied: This offence here is different, as Scripture says: And slaughter it or sell it:¹⁷  just as selling [becomes complete] through the medium of another person,¹⁸  so also slaughter may be effected by another person. The School of R. Ishmael taught: [The term] 'or'¹⁹  [inserted between 'slaughter' and 'selling' was meant] to include the case of an agent.²⁰  The School of Hezekiah taught: The term 'instead'¹⁹  [was intended] to include the case of an agent.

Mar Zutra demurred to this. Is there [he said] any action for which a man is not liable if done by himself but for which he is liable if done by his agent? — R. Ashi said to him: In that case²¹  it was not because he should not be subject to liability, but because he ought to be subject to a penalty²¹  severer than that. But if the slaughter was carried out by another one, what is the reason of the Rabbis who ruled that there was exemption? — We might say that the Sages [referred to] were R. Simeon who stated that a slaughter through which the animal would not ritually become fit for food could not be called slaughter [in the eyes of the law].²²  But I would say, I grant you this in regard to serving idols and an ox condemned to be stoned, as [through the slaughter] the animal will in these cases not become fit for food,²³  but in the case of the Sabbath, does not the slaughter render the animal fit for food? For did we not learn that if a man slaughters on the Sabbath or on the Day of Atonement, though he is liable for a capital offence,²⁴  his slaughter is ritually valid?²⁵  — It may, however, be said that he²⁶  concurred with R. Johanan ha-Sandalar, as we have learned, If a man cooks [a dish] on the Sabbath, if inadvertently, [even] he himself²⁷  may partake of it,²⁸  but if deliberately, he should not partake of it²⁹  [on that day]. So R. Meir. R. Judah says: If inadvertently, he may eat it only after the expiration of the Sabbath,³⁰  whereas if deliberately he should never partake of it.³¹  R. Johanan ha-Sandalar says: If inadvertently, the dish may be partaken of after the expiration of the Sabbath, only by other people, but not by himself, whereas if deliberately, it should never be partaken of either by him or by others.³²  What was the reason of R. Johanan ha-Sandalar? — R. Hiyya expounded at the entrance of the house of the prince:³³  Scripture says: Ye shall keep the Sabbath therefore, for it is holy unto you.³⁴  Just as holy food is forbidden to be eaten,³⁵  so also what is unlawfully prepared on the Sabbath is forbidden to be partaken of. But, [you might argue,] just as holy food is forbidden for any use,³⁵  so should whatever is [unlawfully] prepared on the Sabbath also be forbidden for any use.³⁶  It is therefore stated further: 'Unto you',³⁴  implying that it still remains yours for general use.³⁷  It might [moreover] be thought that the prohibition extends even where prepared inadvertently, it is therefore stated: Everyone that profaneth it shall surely be put to death,³⁴  [as much as to say], I speak only of the case when it is done deliberately, but not when done inadvertently.

R. Aha and R. Rabina differ in this matter. One said that whatever is [unlawfully] prepared on the Sabbath is forbidden on Scriptural authority whereas the other [Rabbi] said that whatever is [unlawfully] prepared on the Sabbath is forbidden on Rabbinic authority. He who said that it was on Scriptural authority bases his view on the exposition just stated, whereas he who said that it was on Rabbinic authority holds that when Scripture says, 'It is holy', it means that it itself³⁸  is holy, but that which is [unlawfully] prepared on it is not holy. Now I grant you that according to the view that the prohibition is based on Scriptural authority, the Rabbis because

1. V. p. 403, n. 4.
2. Keth. 32a and B.M. 91a.
3. For a civil liability arising out of an act done at the time when the transgression for which he is to be lashed was committed.
4. Keth. 33b.
5. Why then is it stated infra p. 427, that in this case there would be exemption?
6. R. Meir.
7. Keth. loc. cit.
8. Which is a capital offence; cf. Ex. XXII, 19.
9. Which is thus forbidden for any use; v. supra p. 234.
10. Which shows that in R. Meir's opinion liability to pay may he added to capital punishment.
11. [ [H], a term employed in designation of the corporate body of members of the Palestinian schools, primarily of the School of Tiberias. V. Bacher, MGWJ, 1899, p. 345.]
12. In which case it is not the thief but the other person who is liable to the capital punishment.
13. I.e., the agent.
14. Of slaughtering a stolen animal.
15. I.e., the thief.
16. Of four-fold or five-fold payment.
17. Ex. XXI, 37.
18. For two parties are needed to a sale: one to sell and the other to buy.
19. Ibid.
20. To make the principal liable to the fine.
21. I.e., capital punishment for desecrating the Sabbath or serving idols.
22. V. p. 403, n. 10.
23. For serving idols see A.Z. 54a; and Hul. 40a.
24. In the case of Sabbath the offender would be subject to be stoned as in Ex. XXXV, 2 and Num. XV, 32-36, but in the case of the Day of Atonement he would only be subject to a heavenly punishment of being cut off from among his people, in accordance with Lev. XXIII, 30 and Ker. I, 1.
25. Hul. 14a.
26. I.e., R. Simeon.
27. I.e., he who cooked it.
28. Even on the same day.
29. Nor anybody else.
30. But on the same day neither he nor anybody else may partake of it.
31. Though others may partake of it after the expiration of the Sabbath.
32. V. Ter. II, 3. It thus follows that according to R. Johanan an animal deliberately slaughtered on the Sabbath will be forbidden as food; and since such a slaughter renders the animal unfit for food, it involves no liability of the fourfold or fivefold payment.
33. [The reference is to R. Hiyya b. Abba II and R. Judah the Prince III whose home was at Sepphoris. V. zuri, Mishpat hazibburi, I, 281 ff.]
34. Ex. XXXI, 14.
35. Cf. Lev. V, 15-16.
36. Not only for food to Israelites but also for any use whatever.
37. For surely if it becomes forbidden for any use there would be no practical purpose in retaining ownership.
38. I.e., the Sabbath itself.

of this have rightly ruled that there is exemption,¹  but according to the view that it is based on Rabbinic authority, why did the Rabbis rule that there is exemption?²  — [Their exemption applies] to the other cases; to serving idols, and an ox condemned to be stoned.

But why does R. Meir impose liability in the case of slaughtering for the service of idols? For as soon as he starts the act of slaughtering in the slightest degree he renders the animal forbidden,³  so that the continuation of the slaughter is done on an animal already forbidden for any use whatever, and as such, was he therefore not slaughtering that which no longer belonged to the owner?⁴  — Raba replied: The rule applies to one who declares that it is only at the very completion of the act of slaughter that he intends to serve idols therewith. But what about an ox condemned to be stoned? Is it not forbidden for any use whatever, so that he slaughters that which does not belong to the owner?⁴  — Raba thereupon said: We are dealing here with a case where the owner had handed over the ox to a bailee, and as it did damage [by killing a person] in the house of the bailee it was declared Mu'ad in the house of the bailee and its final verdict was issued while it was in the house of the bailee; R. Meir thus on one point concurred with R. Jacob and on another point he concurred with R. Simeon: On one point he concurred with R. Jacob who said that if even after its final verdict was issued the bailee restored it to the owner, it would be a legal restoration;⁵  and on another point he concurred with R. Simeon who stated⁶  that an object the absence of which entails money loss is regarded as possessing an intrinsic value,⁷  as we have learned: R. Simeon says: In the case of consecrated animals⁸  for the loss of which the owner is liable to replace them by others, the thief has to pay,⁹  thus proving that an object whose absence entails money loss is regarded as possessing an intrinsic value.¹⁰  R. Kahana said: When I reported this discussion in the presence of R. Zebid of Nehardea, I asked: How could you explain our Mishnah¹¹  to be [only] in accordance with R. Meir¹²  but not in accordance with R. Simeon, since it is stated in the concluding clause, R. SIMEON HOWEVER RULES THAT THERE IS EXEMPTION IN THE LAST TWO CASES,¹³  thus implying that in the other cases of the whole Mishnah he agrees? — He¹⁴  however said to me; No, it merely implies that he agrees in the case of slaughtering or selling to use the meat for curative purposes or to give to dogs.¹⁵

IF HE STEALS FROM HIS OWN FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED, etc. Raba inquired of R. Nahman: If he steals an ox of two partners and after slaughtering it he confesses to one of them,¹⁶  what would be the law?¹⁷  — Shall we say that the Divine law says: 'Five oxen',¹⁸  [implying] 'but not five halves of oxen', or do the 'five oxen' mentioned by the Divine Law include also five halves of oxen? — He replied:¹⁹  The Divine Law says 'five oxen' [implying] 'but not five halves of oxen'.²⁰

He, however, raised an objection against him [from the following]: IF HE STEALS FROM HIS FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT. Seeing that the father died,²¹  is not this case here on a par with a case where he went²²  and confessed to one of the partners, and it is yet stated that he has to make four-fold or five-fold payment? — He replied: Here we are dealing with a case where, for instance, his father has already appeared in the court before he died.²³  Had he not appeared in court, the son would not have had to make four-fold or five-fold payment. If so, instead of having the subsequent clause 'Where he steals of his father [who subsequently died] and afterwards he slaughters or sells, he has not to pay four-fold and five-fold payments,'²⁴  why should not [the Mishnah] make the distinction in the same case itself by stating, 'This ruling²⁵  applies only where the father appeared in court, whereas if he did not manage to appear in court, the thief would not have to make four-fold and five-fold payments'?²⁶  — He replied:²⁷  This is indeed so, but since the opening clause runs 'IF HE STEALS FROM HIS FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED', the later clause also has the wording, 'where he steals from his father and after his father died he slaughters or sells'. In the morning, however, he said to him:²⁷  When the Divine Law said 'five oxen' it also meant even five halves of oxen, and the reason why I did not say this to you on the previous evening

1. As the slaughter of the animal on the Sabbath day would on Scriptural authority render the animal unfit for food and could according to R. Simeon not be considered a slaughter at all.
2. Since according to substantive law the animal would be fit for use.
3. Cf. Hul. 40a.
4. V. p. 409, n. 8.
5. Supra p. 255.
6. Infra 437.
7. So that since if the ox would not have been slaughtered the bailee would have been able to restore it intact without paying anything for its value, whereas now that the ox was stolen and slaughtered he would have to pay for the full value of the ox, the ox is considered of an intrinsic value though it was condemned to be stoned, and the thief has to pay the fine accordingly.
8. Which as such are not subject to the law of the fine of double and four-fold and five-fold payment, as infra p. 427.
9. The owner the full fine, v. Mishnah p. 427.
10. To the one who would be liable to make the outlay of money, and for this reason R. Meir makes the thief liable for the payment of the four-fold or five-fold.
11. Regarding the case of slaughtering on the Day of Atonement.
12. Who holds one could be both lashed and ordered to pay.
13. Supra p. 403.
14. I.e., R. Zebid.
15. Which forms a part of the last paragraph which is complete in itself.
16. So that he will not have to pay any fine to this partner, as a confession in a matter of a fine carried exemption; v. supra p. 62 and infra p. 427.
17. Regarding the other partner when witnesses will appear.
18. Ex. XXI, 37.
19. I.e., R. Nahman to Raba.
20. There will therefore be here total exemption.
21. And the thief becomes a partner together with the other brothers in the whole estate.
22. Lit., 'forestalled' (witnesses).
23. And the liability was already then fully established.
24. Infra p. 427. For at the time of the slaughter or sale the thief was a joint owner of the animal.
25. Of liability.
26. Even where he slaughtered the animal or sold it before the death of his father.
27. R. Nahman to Raba.