Babylonian Talmud: Tractate Baba Kamma

Folio 67a

but if not for this, it would have to be restored intact?¹  — R. Joseph replied: A beam retains its name [even subsequently], as taught: 'The sides of the house';²  these are the casings: 'and the thick planks'; these are the beams.³  R. Zera said: A change which can revert to its original state is, in the case of a change in name, not considered a change.⁴  But is a change in name that cannot revert to its original state⁵  considered a change? What then about a trough, the material of which was originally called a plank but now trough, and we have nevertheless been taught⁶  that a trough⁷  which was first hollowed out and subsequently fixed [into a mikweh]⁸  will disqualify the mikweh,⁹  but where it was first fixed [in to the mikweh] and subsequently hollowed out, it will not disqualify the mikweh!¹⁰  But if you maintain that a change in name has a legal effect, why then, even where he fixed it first and subsequently hollowed it out, should it not disqualify the mikweh!¹¹  — The law regarding disqualification through drawn water¹²  is different altogether, as it is only of Rabbinic sanction.¹³  But if so, why even in the prior clause¹⁴  should it not also be the same? — There, however, the law of a receptacle applied to it while it was still detached, whereas here it was never subject to the law of a receptacle while it was detached.

An objection was raised [from the following]: If a thief, a robber or an annas¹⁵  consecrates a misappropriated article, it will be consecrated; if he sets aside a portion for the priest's gift,¹⁶  it will be terumah;¹⁷  or again if he sets aside a portion for the Levite's gift¹⁸  the tithe will be valid.¹⁹  [Now, does this not prove that Renunciation transfers ownership?]²⁰  — It may be said that in that case there was also a change in name, as previously it was called tebel²¹  while now it is called terumah.¹⁷  So also in the case of consecration: previously it was called hullin,²²  but now it is called consecrated.

R. Hisda stated that R. Jonathan said: How do we learn [from Scripture] that a change transfers ownership? — Because it is said: He shall restore the misappropriated object.²³  What [then] is the point of the words, 'which he took violently away'?²³  [It must be to imply that] if it still is as when he took it violently²⁴  he shall restore it, but if not, it is only the value of it that he will have to pay.²⁵  But is this [text] 'which he took violently away'²³  not needed to exclude the case of robbery committed by a father, in which the son need not add a fifth [to the payment] for robbery committed by his father?²⁶  — But if so, the Divine Law should have written only 'he shall restore the misappropriated object.' Why should it further be written, 'which he took violently away'? Thus we can draw from it the two inferences. Some report: R. Hisda stated that R. Jonathan said: How do we learn [from Scripture] that a change does not transfer ownership? — Because it is said: He shall restore the misappropriated object, i.e., in all cases. But is it not written 'which he took violently away'? — That text is needed to indicate that it is only for robbery committed by himself that he has to add a fifth, but has not to add a fifth for robbery committed by his father.

'Ulla said: How do we learn [from Scripture] that Renunciation does not transfer ownership? Because it is said: And ye brought that which was misappropriated, and the lame and the sick.²⁷  'That which was misappropriated' is thus compared to 'the lame': just as 'the lame' has no remedy at all

1. In spite of the fact that a change in name took place.
2. Ezek. XLI, 26.
3. Hence after it became part of the ceiling it is still called beam.
4. A beam by becoming part of a ceiling did not therefore really undergo a change in name, as the beam could be taken out and thus revert to its original state.
5. Such as in the case of the skins made into covers.
6. B.B. 65b.
7. Through which rain or well water was conducted to a mikweh which should be a gathering of well or rain water that has not passed through a receptacle.
8. Lit., 'a gathering of water' for ritual immersion; cf. Glos.
9. As the trough in this case was considered a receptacle before it was fixed to the ground.
10. As when the trough was fixed it was not a receptacle in the eye of the law and could not become such after it became part of the ground to which it was fixed.
11. As by hollowing out the material which was originally called plank the name was changed into trough, and it should thus become a receptacle in the eye of the law. [Although this change was effected after it had been fixed to the soil, the fact that it goes by the name of a trough should in itself be sufficient to disqualify it for the use of the Mikweh; v. Asheri and Shittah Mekubezeth, a.l.]
12. In receptacles poured into a mikweh.
13. Cf. B.B. (Sonc. ed.) pp. 263 ff.
14. Where he first hollowed it out and subsequently fixed it.
15. The same as the hamsan, who, as explained supra p. 361 is prepared to pay for the objects which he misappropriates.
16. In accordance with Num. XVIII, 11-12.
17. V. Glos.
18. Cf. Num. XVIII, 21.
19. V. infra p. 674.
20. For otherwise what right have they to consecrate or set aside the portions for the priest and Levite?
21. I.e., produce from which the priest's and Levite's portion has not been set aside.
22. I.e., unconsecrated property.
23. Lev. V. 23.
24. V. p. 382, n. 3.
25. V. p. 382, n. 4.
26. I.e., that the son should in this case not be subject to Lev. V, 24-25.
27. Mal. I, 13.

[to render it qualified for the altar],¹  so also 'that which was misappropriated' has no remedy at all, no matter before Renunciation or after Renunciation. Raba said: [We derive it] from the following: 'His offering,²  but not one which was misappropriated.'³  When is this? If we say before Renunciation, is this not obvious?⁴  What then is the point of the verse? It must therefore apply to the time after Renunciation, and it may thus be proved from this that Renunciation does not transfer ownership. But did not Raba himself say⁵  that the text referred to a robber misappropriating an offering of his fellow — If you wish I may say that he changed his mind on this matter.⁶  Or if you wish I may say that one of these statements was made by R. Papa.⁷

THE MEASURE OF FOUR-FOLD AND FIVE-FOLD PAYMENTS DOES NOT APPLY EXCEPT IN THE CASE OF AN OX OR A SHEEP ALONE. But why not compare [the term] 'ox' to 'ox' in the case of Sabbath,⁸  so that just as there beasts and birds are on the same footing with them [i.e. ox and ass],⁹  so also here beasts and birds should be on the same footing with them [i.e. ox and sheep]? — Raba said: Scripture says 'an ox and a sheep', 'an ox and a sheep'¹⁰  twice, [to indicate that] only ox and sheep are subject to this law but not any other object whatsoever. I may ask: Which of these¹¹  would otherwise be superfluous? Shall we say that 'ox and sheep' of the concluding clause would be superfluous, and the Divine Law should have written 'if a man shall steal an ox or a sheep and slaughter it or sell it, he should restore five oxen instead of it and four sheep instead of it'? Were the Divine Law to have thus written, would I not have thought that he should pay nine for each of them? And should you rejoin that it is written 'instead of it', 'instead of it' [twice in the text, so that] one 'instead of it' would then have been superfluous,¹²  [I might retort that] this is required for a further exposition, as taught: It might be maintained that one who stole an ox worth a mina¹³  would be able to restore for it five frail oxen. The text says, however, 'instead of it', 'instead of it' twice.¹⁴  ['Ox and sheep' of the concluding clause is thus indispensable]. It thus appears that it is 'ox and sheep' of the prior clause which would have been superfluous, as the Divine Law should have written: 'If a man shall steal and slaughter it or sell it, he shall restore five oxen for the ox and four sheep for the sheep.' But had the Divine Law to have thus written, I might have thought that it was only where he stole the two animals and slaughtered them [that liability would be attached]! — But surely it is written 'and slaughtered it', implying one animal! It might still be thought that it was only where he stole the two animals and sold them [that liability would be attached]! — But surely it is written, 'and he sold it' implying one animal! It could still be argued that I might have thought that it was only where he stole the two animals and slaughtered one and sold the other [that liability would be attached]! — But surely it is written, 'or he sold it' [indicating that slaughtering and selling were alternative]! I might nevertheless still argue that it was only where he stole the two of them and slaughtered one and left the other, or sold one and left the other!¹⁵  — We must say therefore that it is 'ox' of the concluding clause and 'sheep' of the first clause which would have been superfluous, as the Divine Law should have written: 'If a man shall steal an ox and slaughter it or sell it, he shall restore five oxen instead of it and four sheep instead of the sheep.' Why then do I require 'ox' of the concluding clause and 'sheep' of the first clause? To prove from it that only ox and sheep are subject to this law,¹⁶  but not any other object whatsoever.

ONE WHO STEALS FROM A THIEF [WHAT HE HAS ALREADY STOLEN] NEED NOT MAKE DOUBLE PAYMENT etc. Rab said: This Mishnaic ruling applies only where the theft took place before Renunciation; for if after Renunciation, the first thief would have acquired title to the article and the second thief would have had to make double payment to the first thief.¹⁷  Said R. Shesheth: I am inclined to say that it was only when he was half asleep and in bed that Rab could have enunciated this ruling. For it was taught: R. Akiba said: Why has the Torah laid down that where the thief slaughtered or sold [the sheep or ox] he would have to make fourfold and five-fold payments [respectively]? Because he became thereby rooted in sin.¹⁸  Now, when could this be said of him? If before Renunciation,

1. Cf. Lev. XXII, 19-25.
2. V. p. 353, n. 9.
3. Supra p. 383.
4. V. p. 383, n. 11.
5. Supra p. 384.
6. As was the case with the same sage in Shab. 27a; Bez. 18a; Keth. 11b; B.B. 24a; Bek. 54b and Ker. 7a.
7. Who was a disciple of Raba, and the views of the disciples were regarded as those of the Master. [This supports the reading (on p. 383), 'Raba', instead of 'Rabbah', given in our edition; v. Tosaf.]
8. Deut. V, 14.
9. As supra 54b.
10. Ex. XXI, 37.
11. 'An ox and sheep', whether on the first or second occasion.
12. [I.e., if we were to assume that there is a payment of nine in each case.]
13. V. Glos.
14. That the payment should be in accordance with the animal slaughtered or sold, but this would still afford no proof against the assumption that there is a payment of nine in each case.
15. ['Ox and sheep' of the earlier clause are therefore similarly indispensable.]
16. Of five-fold and four-fold payments respectively.
17. Who through Renunciation on the part of the owner became the legal possessor of the article.
18. [His sin struck root in that he has deprived beyond retrieve the owner of his belongings.]