Bava Kamma Chapter Nine Mishnayot Five and Six

 

Introduction

Leviticus 5:20-26 discusses a person who steals from another person (or unlawfully takes his property in another fashion) and afterward swears that he did not do so. In order to atone for his sin he must do three things:  1)  Restore that which he stole; 2)  He must pay back an additional fifth of the value of the stolen object; 3)  He must bring a sacrifice (asham) to the Tabernacle/Temple.  The first two obligations are in order to restore the property and pay a fine.  The third obligation is in essence to atone for his false oath.

 

The remaining mishnayoth of our chapter will deal with these obligations, specifically the obligation to return the lost object and to add on a fifth.  Note that what the mishnah calls a fifth is what we would call a quarter of the value.  For instance if the stolen object was worth 100, the robber must add on another 25, thereby paying back 125.  Since 25 is one fifth of 125 the Rabbis called it a fifth.  It is also important to note that our mishnayoth will discuss a perutah.  This is the smallest coin known to the Rabbis and was certainly not worth anything substantial in their time.

 

Mishnah Five

1)                     If a man robbed his fellow of the value of a perutah and swore [falsely] to him, he must take it to him even as far as Medea.

2)                     He may not give it to his son or to his agent, but he may give it to the agent of the court.

3)                     If his fellow had died he must return it to his heirs.

 

Explanation—Mishnah Five

Our mishnah teaches the stringency of the law of swearing falsely on a stolen object.  In order for the robber to make atonement for his crime of stealing and swearing falsely, he must bring the object to the original owner even as far as Medea (modern Iran).  He cannot give it to a representative of the original owner.  Rather he must confront him face to face.  Alternatively he may use a representative of the court to return the object to the original owner.  Finally, the mishnah tells us that it is obligatory to return it even to the heirs.

The single leniency of the mishnah is that this law does not hold true if he stole less than a perutah.  Less than a perutah is not considered to have any value and therefore we cannot legally say that this person has stolen.

 

Mishnah Six

1.                     If he had repaid the value but had not paid the [added] fifth, or if he had forgiven him the value but not the [added] fifth, or if had forgiven him both except for less than a perutah’s worth of the value, he need not go after him.

2.                     If he had repaid him the [added] fifth but not the value, or if he had forgiven him the [added] fifth but not the value, or if he had forgiven both except for a perutah’s worth of the value, he must go after him.

 

Explanation—Mishnah Six

Our mishnah is taught in a classic style where all of the examples in section one are opposite of those in section two.  This can easily be demonstrated by a chart:

Section One

Section Two

a)                     If he had repaid the value but had not paid the [added] fifth,

b)                     or if he had forgiven him the value but not the [added] fifth,

c)                     or if had forgiven him both except for less than a perutah’s worth of the value,

d)                     he need not go after him.

 

a)                     If he had repaid him the [added] fifth but not the value,

b)                     or if he had forgiven him the [added] fifth but not the value,

c)                     or if he had forgiven both except for a perutah’s worth of the value,

 

d)                     he must go after him.

Seen in this manner we can easily learn the abstract principle taught by the mishnah’s mentioning of concrete cases.  If a person has returned to another person the value of the stolen object but not the added fifth, he need not chase after the person in order to restore the object, as we learned in mishnah four.  However, if he paid the fifth and not the value of the object itself, he must still chase after him.  The same is true if the person who had the object stolen from him forgave him the value but not the fifth, or vice versa.  Finally, in section c we learn that if he (the person from whom the object was stolen) forgave most of the value but didn’t forgive a perutah’s or more worth, than he (the robber) still must chase after him.  However, if he remains obligated less than a perutah, he need not chase after him.

 

Questions for Further Thought:

·                      Why would or would not a robber wish to make restitution through an agent of the court (mishnah five, section 2)?

·                      What would be the law if the person from whom the money was stolen forgave all of the value and most of the fifth except for a perutah’s worth of the fifth?

 

 

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