Bava Kamma Chapter Nine Mishnayoth Eight and Nine

 

Introduction

Mishnah eight is a continuation of the second part of mishnah seven.  There we learned that if a guardian swore that the deposit which his friend had given him was lost and then witnesses testified that the guardian actually consumed the deposit, he must restore only the value of the deposit to the original owner.  If, however, he admitted to his crime on his own, without witnesses testifying against him, he is obligated to restore the original value of the deposit plus an added fifth and to bring a sacrifice.  Our mishnah deals with a similar circumstance involving a guardian who steals the deposit (as opposed to consuming it).

 

Mishnah nine deals with a person who stole from his father, whose money would have eventually become at least partly his through inheritance.

 

Mishnah Eight

1)                     [If a man said], “Where is my deposit?” and the other said, “It is stolen,” [if the one says,] “I adjure thee”, and the other says, “Amen!”, and witnesses testify against him that he stole it, he must make twofold restitution.

a)                                           But if he confessed it of himself, he must repay the value and the [added] fifth and bring a Guilt-offering.

 

Explanation— Mishnah Eight

In the scenario presented in this mishnah a person received a deposit from another person.  When the owner came back to claim his deposit, the guardian claimed that it was stolen, and when asked, he swore to his words.  If witnesses were to come and testify that the guardian had actually stolen the object, he will be obligated for twofold restitution, as are all thieves.  However, if he confessed of the crime himself, he is not judged as a thief but as a robber who swore falsely and therefore must pay back the principle plus a fifth and bring a sacrifice.  This distinction is again based on the Biblical passage of which we learned in mishnah seven.  For further clarification see our explanation there.

 

Mishnah Nine

1)                     If a man stole from his father and swore [falsely] to him, and the father died, he must repay the value and the [added] fifth to the father’s sons or brothers.

2)                     If he will not repay or if has does not have [with which to repay] he must borrow and the creditors come and are repaid.

 

Explanation— Mishnah Nine

When a man steals from his own father he is actually stealing from his brothers or from his father’s brothers who are the chief inheritors.  (The primary inheritors according to halacha are sons, and next in line are the father’s brothers.  If the man were to die with no sons, the brothers inherit.)  In this case the robber clearly owes part or even most of the theft to the other inheritors.  For instance if he stole 100 and there is one other son, he clearly owes 50 to the other son (his brother).  If there were three other sons he would clearly owe each 25.  However, our mishnah states more.  He must pay not only the other son’s share of the inheritance, but he must pay his share, as well as an added fifth.  If there was only one other son he would pay all 100 to him.  The key to understanding this is that in order for him to atone for his robbery he must physically remove the stolen property from his possession.  If he were to keep his portion, he would be left with some stolen property.  He therefore must physically give over the entire theft to the other inheritors.

The mishnah however allows, under certain circumstances, for the robbing son to retain his portion of the inheritance.  The robbing son may borrow from another person the value of the object he stole from his father.  He then takes the stolen object and returns it to the other inheritors, thereby removing the stolen object from his property.  When the creditors come to collect they collect an equal portion from each inheritor.  In this way the robber can retain his share of the inheritance and still return the object.

 

Questions for Further Thought:

·                      What is the difference between the law in mishnah eight and the law in mishnah seven?  Why?

·                      Why would the mishnah (nine) create a means for a robber to return the stolen object and not lose his share of the inheritance?  What is the purpose of this leniency on the robber?  Whom does it benefit?

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