Bava Kamma Chapter Seven Mishnayoth Four and Five

 

Introduction

The two mishnayoth which we will learn today continue to teach various details in the laws of thievery and twofold, fourfold and fivefold restitution.

 

Mishnah Four

1)                     If he stole [an ox or a sheep] according to the evidence of two witnesses, and slaughtered it or sold it according to the evidence of one witness or according to his own evidence, he makes twofold restitution, but not fourfold or fivefold restitution.

2)                     If he stole [an ox or a sheep] and slaughtered it on the Sabbath,

a)                                           or stole it and slaughtered it for idolatrous use,

b)                                          or stole what was his father’s and his father died, and he afterward slaughtered or sold it,

c)                                           or if he stole it and then dedicated it, and afterward slaughtered it or sold it,

d)                                          he makes twofold restitution but not fourfold or fivefold restitution.

e)                                           Rabbi Shimon says:  “If they were Holy Things which must be replaced [if damaged or lost] he must make fourfold or fivefold restitution; but if they were Holy Things which need not be replaced, he is exempt.”

 

Explanation—Mishnah Four

Section one of the mishnah deals with a case where two witnesses testify that he stole but his slaughtering or selling is verified only by one witness or by a self-confession.  As we have learned, one witness is not sufficient testimony according to Jewish law.  Furthermore, a person who admits to a crime which carries with it a fine, is not obligated to pay the fine.  Therefore this thief will pay only twofold restitution.

Section two contains several laws that are opposite to the laws we learned in mishnah two.  To compare them we will place them in parallel columns:

Mishnah Two

Mishnah Four

1.                     If a man stole [an ox or a sheep] and sold it on the Sabbath,

2.                     or stole it and sold it for idolatrous use

3.                     or stole it and slaughtered it on the Day of Atonement;

4.                     if he stole what was his father’s and slaughtered it or sold it, and afterward his father died;

5.                     if he stole it and slaughtered it and then he dedicated it to the Temple—

6.                     he must make fourfold or fivefold restitution.

 

1.                     If he stole [an ox or a sheep] and slaughtered it on the Sabbath,

2.                     or stole it and slaughtered it for idolatrous use,

3.

4.                     or stole what was his father’s and his father died, and he afterward slaughtered or sold it,

5.                     or if he stole it and then dedicated it, and afterward slaughtered it or sold it,

6.                     he makes twofold restitution but not fourfold or fivefold restitution.

In the cases mentioned in mishnah two the person is liable for fourfold and fivefold restitution and in mishnah four he is not.  Using the line by line comparison we should be able to see why the law is different in each individual case. In case 1, if the person slaughtered the ox or sheep on the Sabbath he is obligated for the death penalty.  Since one can only receive one punishment per crime, he is not fined additionally for having slaughtered the animal.  If, however, he had only sold the animal, he would not be obligated for the death penalty and therefore he would owe the fine.  The same is true for case 3. Selling an animal for idolatrous use is not a crime for which one would receive the death penalty, and therefore he is obligated for the fine.  On the other hand, slaughtering for idolatrous use is a capital crime and therefore he receives a death penaly and not a fine.  We learn in case 4 that if he stole his father’s animal and did not slaughter or sell it until after he dies he is not obligated for fourfold or fivefold restitution.  Since at the time of the slaughtering or selling part of the animal was his as an inheritance he is not obligated.  (We will see a similar law in the next mishnah).  If, however, he had sold or slaughtered the animal before the death of his father, he would be obligated.  Similarly in case 5 if he sold and slaughtered the animal after having dedicated it, he is selling or slaughtering an animal that is no longer really belongs to him. He is therefore not obligated for the fine. If, however, he slaughtered or sold the animal and then dedicated it, he will be obligated for the fine.

Rabbi Shimon makes a clarification on this last law.  The “Holy Things” to which he refers are animals dedicated to the Temple.  There are two types of such dedications.  If the owner says that “this animal is dedicated”, then he must bring this animal. If the animal gets lost or dies the owner is not obligated to bring another animal in its place.  In such a case, if a thief should steal and slaughter or sell the animal he is not obligated for fourfold or fivefold restitution.  If, however, the owner dedicated the animal by saying “I dedicate an animal”, then he if the original animal is lost he must bring another.  In such a case if the thief should slaughter or sell the animal he will be obligated for fourfold or fivefold restitution.  (This last law is difficult and is explained in other ways as well).

 

Mishnah Five

1)                     If he sold it all but a hundredth part, or if he had [already] a share in it, or if slaughtered it and it became unfit [to eat] by his own hand, or if he pierced the windpipe or rooted out its gullet, he makes twofold restitution but not fourfold or fivefold restitution.

2)                     If he stole it in the owner’s domain, but slaughtered it or sold it outside the owner’s domain,

a)                                           or if he stole it outside the owner’s domain and slaughtered or sold it within the owner’s domain;

b)                                          or if he stole it and slaughtered or sold it within the owner’s domain;

c)                                           or if he stole it and slaughtered or sold it outside the owner’s domain,

d)                                          he must make fourfold or fivefold restitution.

e)                                           But if he stole it and slaughtered or sold it within the owner’s domain, he is exempt.

 

Explanation—Mishnah Five

Section one deals with several different scenarios in which a thief will not be obligated for fourfold or fivefold restitution.  First of all, if he sells only part of the animal, and even if he sells is 99% of the animal, he is still exempt.  Second, if he steals something that he already owns part of, for instance he steals from his partner, he is exempt.  Third, if the slaughtering causes the animal to become unfit to eat, because it was not done properly, he is exempt.  Piercing the animals windpipe or tearing out its gullet makes the animal not kosher and therefore the thief is only obligated for twofold restitution.

Section two teaches that if both the stealing and the slaughtering or selling were done on the property of the owner, the thief has never acquired the animal in order to make him obligated.  In order to become a thief a person must take possession of the object.  If he did not do so, he is not considered a thief and he will not be obligated as such.  We will learn more details about this law in tomorrow’s mishnah.

 

 

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