Babylonian Talmud: Tractate Baba Kamma

Folio 64a

But when the text continues 'sheep', we have sheep explicitly stated. How then am I to explain 'theft'? To include any object. [If that is so] should Scripture not have mentioned only 'ox', 'sheep' and 'theft' since everything would have thus been included? — If so, I might still say that just as the specification¹  mentions an object which is subject to the sanctity of first birth,²  so also any object which is subject to the sanctity of first birth [should be included].³  Now what can you include through this? An ass [as subject to double payment]. But when the text goes on to mention 'ass', we have 'ass' explicitly stated. What then do I make of 'theft'? To include any object. [If that is so], should Scripture not have mentioned only 'ox' 'ass', 'sheep' and 'theft' since everything would have accordingly been included? — If so, I might still say that just as the specification⁴  mentions objects possessing life, so also any other objects possessing life [should be included]. What can you include through this? All other objects possessing life. But when the text continues 'alive', we have objects possessing life explicitly stated. How then am I to explain 'theft'? [It must be] to include any other object whatsoever.⁵

The Master stated: 'Should not Scripture have mentioned [only] "ox" and "theft"?' — But does it say 'ox' and [then] 'theft'? Is it not [first] 'theft' and [then] 'ox' which is written in the text?⁶  And if you rejoin that the author of this argument took a hypothetical case, viz.: 'If it were written [first] "ox" and [then] "theft", how in that case would you be able to say, 'Just as the specification mentions etc.,' since 'ox' would be the specification and 'theft' the generalisation, and in the case of a specification followed by a generalisation the generalisation is considered to add to the specification, so that all objects would be included? If, on the other hand, he based his argument on the actual order of the text, viz.: 'theft' and [then] 'ox', how again would you be able to say that 'everything would have been included', or 'just as the specification mentions etc.', since 'theft' would be the generalisation and 'ox' the specification, and in the case of a generalisation followed by a specification there is nothing included in the generalisation except what is explicit in the specification, [so that here] only ox [would be included] but no other object whatsoever? Raba thereupon said: This Tanna⁷  based his argument upon the term 'alive' [that follows the specification], so that he argued on the strength of a generalisation⁸  [followed by] a specification⁹  [which was in its turn followed by] another generalisation.¹⁰  But is the last generalisation¹⁰  analagous in implication to the first generalisation?¹¹  There is, however, the Tanna of the School of R. Ishmael who did expound texts of this kind on the lines of generalisations and specifications.¹²  The problem was therefore this: Why do I require the words in the text, 'If to be found it be found?'¹³  Should not Scripture have mentioned only 'theft' and 'ox' and 'alive', and everything would have then been included?¹⁴  — If so, I might say that just as the specification mentions an object which is eligible to be sacrificed upon the altar, so also any object eligible to be sacrificed upon the altar is [included]. What does this enable you to include? Sheep.¹⁵  But when the text continues 'sheep', we have sheep explicitly stated. What then am I to make of 'theft'? It must be to include any object. [If that is so] should Scripture not have mentioned only 'theft', 'ox', 'sheep' and 'alive' since everything would have then been included?¹⁴  — If so, I might still say that just as the specification mentions an object which is subject to the sanctity of first birth, so also any object which is subject to the sanctity of first birth [should be included]. What does this enable you to include? Ass. But when the text continues 'ass', we have ass explicitly stated. What then am I to make of 'theft'? It must be to include any object. [But in that case] should Scripture not have mentioned only 'theft', 'ox', 'sheep', 'ass' and 'alive', since everything would have then been included?¹⁴  — If so I might still say that just as the specification mentions objects possessing life, so also any other object possessing life [should be included]. What does this enable you to include? All other objects possessing life. But when the text continues 'alive', objects possessing life are explicitly stated. What then am I to make of 'theft'? [It must be] to include any other object whatsoever. And if so, why do I require the words 'if to be found it be found'?¹⁶

1. I.e., ox and sheep.
2. In accordance with Ex. XIII, 12.
3. Ass would thus also be included; cf. Ex. XXII, 13.
4. Ox, sheep and ass.
5. [Hence the derivation of double payment in the case of the thief himself.]
6. [Being thus a generalisation followed by a specification, in which case the former includes only what is contained in the latter, v. P.B. p. 13.]
7. Of the School of Hezekiah.
8. I.e., 'theft'.
9. I.e., 'ox, ass, sheep'.
10. I.e., 'alive'. — The argument will be explained anon.
11. I.e., 'theft', being more comprehensive than 'alive'.
12. Cf. Zeb. 4b; 8b; and Hul. 66a.
13. Literal rendering of Ex. XXII, 3. (E.V.: If the theft be certainly found in his hand.)
14. Why indeed this emphasis on the verb 'found'?
15. V. supra p. 370, n. 7.
16. V. note 2. This concludes the argument of the School of Hezekiah.

But if this is so, is not this a real difficulty?¹  — There is, however, a refutation of it.²  For whence would you include any 'other object'?³  From [the implication of] the last generalisation.⁴  Now, since this very generalisation consists in the term 'alive', of what service then is the argument based upon the generalisation followed by a specification which is in its turn followed by another generalisation? It can hardly be to add any [inanimate] object, since the word 'alive' is used there, implying only objects possessing life, but not any other object whatsoever. It was therefore because of this that it was necessary to state 'if to be found it be found.'⁵  It may however still be argued, does not this text contain two generalisations which are placed near each other?⁶  — Rabina thereupon said: [We dispose of this difficulty] as stated in the West,⁷  that wherever you find two generalisations near each other, place a specification between them and explain them as a case of a generalisation followed by a specification.⁸  [Here then] place 'ox' between [the infinitive and the finite verb],⁶  'if to be found it be found.' Now, what additional objects would this introduce? If objects possessing life, are these not to be derived from the term 'alive'? It must therefore be an object which does not possess life, and we expound thus: Just as the specification mentions an object which is movable and which has an intrinsic value, so also any object which is movable and which has an intrinsic value [should be included to be subject to the double payment]. Now, when you again place 'ass' between [the infinitive and the finite verb], 'if to be found it be found', what additional objects could this introduce? If an object not possessing life, was not this derived from [placing] 'ox' [between the two generalisations]?⁶  It must therefore serve to introduce an object having specification.⁹  But if so why do I require the word 'sheep'? — It must therefore be taken as a case of an amplification preceding a diminution followed in its turn by another amplification,¹⁰  as indeed taught at the School of R. Ishmael. For it was taught at the School of R. Ishmael:¹¹  [The words 'in the waters',¹²  'In the waters', occurring twice in the text should not be treated as a generalisation followed by a specification, but as an amplification followed by a diminution followed in its turn by another amplification, to add everything. What, then, does it add in this case?¹³  It adds all objects, But if so, why do I require all these specifications?¹⁴  — One to exclude real estate; the second to exclude slaves, and the third to exclude bills; while 'theft' and 'alive' furnish a basis for the view of Rab who said¹⁵  that the value of the principal is to be resuscitated as it was at the time of theft.¹⁶

But according to the view that one verse¹⁷  deals with a thief himself and the other¹⁸  with a bailee [falsely] alleging theft, so that the liability of a thief himself to pay double payment is thus derived from the text 'if the thief be found', how is the text 'If to be found it be found' etc. to be expounded? — He may employ it for teaching the view expressed by Raba b. Ahilai; for Raba b. Ahilai said:¹⁹  What was the reason of Rab who maintained that a defendant admitting an offence for which the penalty is a fine would [even] where witnesses subsequently appeared still be exempt? As it is written: 'If to be found it be found' implying that if at the very outset it is found by witnesses then it will 'be' [considered] 'found' in the consideration of the Judges, excepting thus a case where it was the defendant who incriminated himself. Now again, according to the view that both verses deal with a bailee [falsely] advancing a plea of theft, in which case the text 'If to be found it be found' is employed to teach that there is double payment in the case of a thief himself, whence [in Scripture] do we derive the rule regarding a defendant incriminating himself? — From the text, 'Whom the judges shall condemn'²⁰  [which implies], 'but not him who condemns himself.' But according to the view that one verse deals with a thief and the other with a bailee [falsely] advancing a plea of theft and that the text of 'if to be found it be found' is to introduce the law where the defendant incriminates himself, how could the text, 'whom the judges shall condemn', be expounded? — He might say to you: That text was in the first instance employed to imply that a defendant admitting [an offence entailing] a fine [without witnesses subsequently appearing] would be exempt;²¹  whereas the other view, that both of the verses deal with a bailee [falsely] advancing a plea of theft holds that a defendant admitting [an offence entailing] a fine for which witnesses subsequently appear is liable.²²  According to the view that one verse²³  deals with a thief and the other with a bailee [falsely] advancing a plea of theft, so that the case of a thief is derived from the verse there,²⁴  we have no difficulty with the text 'if to be found it be found', which is employed as a basis for the statement of Raba b. Ahilai, but why do I require all these specifications?²⁵  — For the reason taught at the school of R. Ishmael,²⁶  that any section written in Scripture and then repeated is repeated only for the sake of a new point that is added to it.²⁷  But why not say that even the thief himself should be subject to double payment only after having taken an oath falsely?²⁸  — Let not this enter your mind, for it was taught: 'R. Jacob says, He shall pay double²⁹  [even] where he took no oath. Why not rather say only where he took a false oath?²⁸  You can safely say that this could not be so.' Why could this not be so? — Said Abaye: For the Divine Law should then not have written 'he shall pay double' in the case of a thief, as this would have been derived by an a fortiori from the law applicable to a bailee falsely advancing a plea of theft: If a bailee falsely advancing a plea of theft, into whose hands the article had come lawfully, is ordered by Scripture to pay twice, should this not apply all the more strongly in the case of the thief himself, into whose hands the article came unlawfully? Why then did Scripture say 'He shall pay double' in the case of a thief himself, unless to imply liability even in the absence of an oath!

But how could this [text] 'If to be found it be found' be employed to teach this?³⁰  Is it not required for what was taught: 'his hand':³¹

1. And how are we to meet the question of that Tanna?
2. So that the emphasis on the verb becomes essential.
3. To be subject to the law of theft.
4. [It is a general principle that, in a proposition consisting of a generalisation followed by a specification which in its turn is followed by another generalisation, the inclusion of all things that are similar to the specification is in virtue of the last generalisation, since without it the proposition would include only what is included in the specification, v. p. 371, n. 3.]
5. [To apply here the principle of generalisation, specification and generalisation.]
6. I.e., the doubling of the verb expressing 'found'.
7. In the Land of Israel.
8. Cf. Shebu. 5a.
9. To the exclusion of such as have no marks of identification. Cf. p. 367, n. 4.
10. Cf. supra p. 366.
11. V. p. 373, n. 6.
12. Lev. XI, 9.
13. Which would otherwise not have been subject to the law.
14. [Strictly speaking, 'diminutions'.]
15. Infra p. 376.
16. I.e., that the payment of principal for a stolen article will be in accordance with its value at the time of the theft.
17. Ex. XXII, 6.
18. Ibid. 7.
19. Infra 75a.
20. Ex. XXI, 8.
21. [While the other verse is to extend the exemption to the case where witnesses do subsequently appear. Had there been one verse only available, the exemption would have been limited to the former only.]
22. As indeed maintained by Samuel, infra 75a.
23. V. p. 374, n. 8.
24. 'If the thief be found'.
25. [Since the exclusion of 'real estate, slaves and bills' is already provided for in the verse, For all manner of trespass, etc.; v. supra p. 364.]
26. Sot. 3a; Shebu. 19a.
27. I.e., the exclusion of self-admission in case of a fine, as supra.]
28. Since the law in this case is derived from the section dealing with the unpaid bailee who is not subject to pay double unless where he first took a false oath on the plea of alleged theft.
29. Ex. XXII, 3.
30. I.e., any of the above implications.
31. Ex. XXII, 3.