Babylonian Talmud

Rodkinson 1918 — source 10, scan section 66

possession, and retain it for yourself," is invalid ; for the bailee can say to him, '' The property is not assigned to you, and you are not the proper party plaintiff." Said Abayi : If the direc- tion is contained, but it states only as to part of it, the bailee cannot say that he is not the proper party plaintiff ; for if part is assigned to him by the court, he has authority to replevy the whole. Said Ameimar : If the writ did not contain the above direction, and nevertheless he took possession of it, the court cannot compel him to return it. (Rashi explains that according to other commentators it means that if the messenger of the court who executed the writ of replevin has kept the property for himself for a debt due him from one of the parties to the litigation, the court cannot compel him to give it up. Rashi approves of this explanation, saying that he found it in the Decisions of the Gaonim.) R. Ashi, however, says that the court has the right to compel him to return it, because when * R. Meir's statement and the full discussion of it will be found translated in the forthcoming tracts at the proper place. TRACT BABA KAMA (THE FIRST GATE). 159 the court appointed one to execute its mandates it was upon the written condition that he should obey all the orders of the court ; consequently he is only a messenger of the court and he has no right to keep it for himself. And so also the Halakha prevails. MISHNA //. : If two witnesses testify that one stole (an ox or a sheep), and either the same or other witnesses testify that he slaughtered or sold the same, he must pay four and five fold. If one stole the same and sold it on the Sabbath, or he stole and sold it for idolatry ; or he stole and slaughtered it on the Day of Atonement ; or he stole from his father and slaughtered and sold it, and thereafter his father died ; or he stole and slaughtered it and then consecrated it — in all those cases he pays four and five fold. The same is the case if he stole and slaughtered it in order to use it as a medicine, or to feed his dogs therewith ; or he slaughtered it and it was found unfit for eating {trephd) ; or he slaughtered it in the Temple court without consecrating it as an offering. R. Simeon, however, makes him free in the two last-named cases. GEMARA : " If he stole and sold it on the Sabbath^'' etc. But have we not learned elsewhere that in such a case he is free ? Said Rami b. Hama : The Boraitha which says that he is free from the payment of four and five fold treats of a case where the thief sold the stolen property to the owner of a garden and re- ceived in payment figs which the thief himself plucked on Sab- bath (and thus incurred the penalty of capital punishment, and there is a rule that where there is capital punishment there can be no mention of civil liability). But it may be said that such must not be considered a sale. For if, for instance, the owner of the garden should claim before the court that he has not re- ceived from the thief the value of the figs, we would not make him liable to pay for the figs as he has committed a crime, and the above maxim applies also here ; consequently there was no sale. Said Rabha : Even in a case where the court would not enter- tain the plaintiff's complaint, the sale would still be called a sale as regards the same required by Scripture. As, for instance, the law prohibits the hire of a harlot, even if she was his own mother (and he promised her a sheep as her hire). Now, if she would sue him before a court for failing to pay her the hire, would the court then direct him to pay it — and nevertheless if he had given her the sheep it would be called " harlot's hire " and its use would be i6o THE BABYLONIAN TALMUD. prohibited ? The same is the case here : although as regards the enforcement of payment of the claim the court would not inter- fere, still, because he transferred it to him in this manner the sale is valid. '* If he stole and sold it on the Day of Atonement,'' etc. Why so? It is true that there is no capital punishment ; but is he not liable to punishment by stripes — and there is a rule that he who is punished by stripes is free from payment ? It may be said that it is according to R. Meir, who holds that stripes do not ab- solve from civil liabiHty. If so, then let him also be liable if he slaughtered it on the Sabbath. And lest one say that R. Meir holds only that stripes do not free from payment but capital punishment does, have we not learned in the following Boraitha : If he stole and slaughtered it on the Sabbath , . . (although he incurs the death penalty) he pays four and five : such is the dictum of R. Meir. The rabbis, however, make him free ? Said the schoolmen : Leave the Boraitha alone, as it was taught in regard to the same : R. Abin, R. Ilaa, and the whole society said in the name of R. Johanan that the Boraitha treats of a case where he slaughtered it through an agent. But is there, then, a case where one commits a transgression and another is liable for it (have we not a rule that there is no agent to commit a sin) ? Said Rabha : The case here is different, for the verse reads [Ex. xxi. 37] : '' And kill it or sell it." As in case of sale there must be another person (to buy it), so also in case of slaughtering, when it was slaughtered by another under his direction. The school of R. Ishmael inferred this from the additional word "or"; the school of Hezkiah inferred it from the word "for" used in that verse. Mar Zutra opposed : Is there, then, a case where one, if he did it himself, would not be liable, but if he did it though a mes- senger he would be liable ? Said R. Ashi to him : There the reason is not because he is not liable, but because he is guilty of a capital punishment, and the above rule applies. Now, when you say that the above Boraitha treats of a case where he slaugh- tered it through a messenger, why do the rabbis make him free of four and five fold ? The schoolmen explained that by the " rabbis " mentioned in the Boraitha in question is meant R. Simeon, who holds that slaughtering which is not legal is not called slaughtering in accordance with the requirements of the Scripture. "'If he stole from his father, ''etc. Rabha questioned R. Nahman : TRACT BABA KAMA (THE FIRST GATE). i6i If he stole an ox belonging to two partners and slaughtered him, and then he confessed to one of the partners, what is the law? Shall we say that the Scripture [Ex. xxi. 37] meant five whole oxen, but not half oKtn (for every partner has a right only to one-half of each ox), or shall we say that in " five oxen " the halves are included ? He answered him : The Scripture reads