Bava Kamma, Chapter 7, Mishnah 2 – 3
Bava Kamma Chapter Seven Mishnayoth Two and Three
The two mishnayoth that we will learn today continue to deal with the subject of thievery. Mishnah two is mostly concerned with unusual circumstances in which a thief has stolen an animal and slaughtered it.
Mishnah three deals with false witnesses who have testified against a person that he stole and slaughtered an animal. According to Deuteronomy 19:19 a person who falsely testifies against another person receives the punishment that would have been meted out on the accused had the witness been telling the truth. Our mishnah will deal with the application of that law to the laws of thievery.
1) If a man stole [an ox or a sheep] according to the evidence of two witnesses and killed it or sold it according to the evidence of two others, he must make fourfold or fivefold restitution.
2) If a man stole [an ox or a sheep] and sold it on the Sabbath, or stole it and sold it for idolatrous use or stole it and slaughtered it on the Day of Atonement;
a) if he stole what was his fathers and slaughtered it or sold it, and afterward his father died;
b) if he stole it and slaughtered it and then he dedicated it to the Temple
c) he must make fourfold or fivefold restitution.
3) If he stole it and then killed it for use in healing, or for food for dogs;
a) or if he slaughtered it and it was found to be terefah,
b) or if he slaughtered it in the Temple Court [intending to eat it] as common food,
c) he must make fourfold or fivefold restitution.
d) In these last two cases Rabbi Shimon exempts.
1) If a man stole [an ox or a sheep] according to the evidence of two witnesses, and killed or sold it according to their evidence, and they are found to be false witnesses, they must pay the whole penalty.
a) If he stole it according to the evidence of two witnesses, and killed it or sold it according to the evidence of two others, and both pairs are found to be false witnesses, the first pay twofold restitution and the last pay threefold restitution.
b) If the second [only] were found to be false witnesses, the thief must make twofold restitution and they threefold restitution.
c) If one of the second set of witnesses was found to be a false witness, the evidence of the other is void.
d) If one of the first set of witnesses was found to be a false witness, the entire evidence is void, since if there is no evidence for stealing there is no evidence for slaughtering or selling.
According to Jewish law testimony must consist of two witnesses who saw the entire crime. Our mishnah teaches us that it is acceptable to have two different sets of witnesses testify to the two different components of the crime. If one set saw him steal and one set saw him sell or slaughter, we assume that it is the same animal in both cases and he is obligated for fourfold or fivefold restitution.
Section two deals with cases where a person stole and sold or slaughtered and yet for various reasons we might have thought that he would not be obligated. The first three cases in this section are based on the principle that one cannot receive two punishments meted out by a court for the same crime (See Bava Kamma 3:10 and 6:5). In the first scenario, the person sold the animal on Shabbat. Selling on Shabbat is not forbidden according to Torah law; it is only forbidden by the Rabbis lest one come to write, which is forbidden according to Torah law. If, however, he had slaughtered the ox he would be obligated for the death penalty since slaughtering is forbidden on the Sabbath and carries with it (at least in principle) the death penalty (see mishnah four of this chapter). In the second scenario he sold the animal for idol worship. Again selling something for idol worship is not a crime which carries with it the death penalty and therefore he will be obligated for remuneration. In the third scenario the person slaughtered on Yom Kippur. Slaughtering on Yom Kippur is a crime for which one receives careth, cutting off, which is, according to Jewish tradition, a punishment meted out by God and not by a human court. Our principle that one can receive only one punishment per crime is limited to punishments meted out by human courts. Since, he will not receive any other punishment by a human court, he is liable for restitution. Clause 2a deals with a son who stole from his father and then, when his father died, inherited from him. He is now in essence a thief from his own inheritance. The rule is that he must pay back the restitution to the other inheritors. Clause 2b deals with a case where a person dedicated the stolen, slaughtered animal to the Temple. Such an action does not exempt him from making full payment of fourfold or fivefold restitution.
Section three of this mishnah deals with several additional scenarios. The first is when a person slaughtered for medicinal purposes or for dog food. Although the slaughtering was not for his own food, it still makes him liable for fourfold and fivefold restitution. In section 3a the person slaughtered but the animal was discovered to be a terefah, an animal that was going to do in any case, and thererefore is not kosher. In this case the person will not be able to eat the animal. In clause 3b the thief slaughtered the animal inside the Temple as regular food. This is prohibited and will render the animal forbidden for any benefit. In both cases, according to the first opinion, even though the animal cannot be eaten, the slaughtering still causes the thief to be obligated for fourfold and fivefold restitution. Rabbi Shimon disagrees.
This entire mishnah deals with the result of false witnesses who have testified against a thief. As stated in the introduction above, false witnesses are punished by whatever punishment the thief would have received. In the first clause, one set of witnesses stated the whole testimony: that the alleged thief stole and slaughtered or sold. Since if they were telling the truth, by their testimony alone he would have been obligated for fourfold or fivefold restitution, that is their punishment. In clause 1a two sets of witnesses testify to the two separate actions: stealing and selling/slaughtering. The first set is punished by the punishment that the alleged thief would have received from their testimony alone, twofold restitution. The second set is punished by the additional punishment the thief would have received from their testimony, a further twofold or threefold restitution. In clause 1b again two sets of witnesses testify to the two separate actions: stealing and selling/slaughtering. This time only the second set is found to be false. The thief therefore pays twofold, since valid witnesses testified to his thievery. The second set of witnesses still pay the threefold restitution.
In the final two clauses again two sets of witnesses testify to the two separate actions: stealing and selling/slaughtering. If one of the two (or more) witnesses in the second set was found to be a false witness, the testimony of the first set, that the thief stole, is still valid and he will be obligated for twofold restitution. If, however, one of the two (or more) witnesses of the first set is found to be false the thief is not liable at all. Without testimony that he stole, there is no validity to the subsequent testimony of the second set that he sold or slaughtered.