Talmud Bavli
Talmud Bavli

Responsa for Bava Kamma 126:21

אילו כך הייתי אומר מה הפרט מפורש קרב לגבי מזבח אף כל קרב לגבי מזבח מה יש לך להביא שה

This is all very well on the supposition that one verse deals with a thief and the other with [a bailee falsely] alleging theft. But on the supposition that both of them deal with [a bailee falsely] alleging theft, whence can the law of double payment<span class="x" onmousemove="('comment',' For misappropriating either an animate or inanimate object. ');"><sup>31</sup></span> be derived in the case of a thief himself? And should you say that it can be derived by means of an <i>a fortiori</i> argument from the law of [a bailee falsely] alleging theft, [we may ask], is it not sufficient for the object to which the inference is made to be placed on the same footing as the object from which it is made,<span class="x" onmousemove="('comment',' I.e., the principle of Dayyo, v. supra p. 126. ');"><sup>32</sup></span> so that just as there<span class="x" onmousemove="('comment',' In the case of the bailee falsely pleading theft. ');"><sup>33</sup></span> [the penalty is entailed only where there] is false swearing, so here also<span class="x" onmousemove="('comment',' In the case of the thief himself. ');"><sup>34</sup></span> [it should be entailed only] where there is false swearing? — It could be derived by the reasoning taught at the School of Hezekiah. For it was taught at the School of Hezekiah: Should not Scripture have mentioned only 'ox' and 'theft'<span class="x" onmousemove="('comment',' In Ex. XXII, 3. ');"><sup>35</sup></span> as everything would thus have been included? — If so, I might say that just as the specification<span class="x" onmousemove="('comment',' I.e., ox. ');"><sup>36</sup></span> mentions an object which is eligible to be sacrificed upon the altar any [living] object which is eligible to be sacrificed upon the altar should be included. What can you include through this? A sheep<span class="x" onmousemove="('comment',' Which is similarly eligible to be sacrificed upon the altar. ');"><sup>37</sup></span> [as subject to double payment].

Teshuvot Maharam

Q. (1) A made a contract with B and gave him a pledge as security that he would fulfill the contract and said, "If I do not carry out the terms of the contract the pledge shall be yours."
(2) C went surety for A to B promising to pay him a certain amount if A should break the terms of the contract.*That two questions were asked of R. Meir, one regarding security, and another regarding a surety, is seen from the fact that towards the end of this Responsum (in the Pr. 130 version which deals with a pledge) R. Meir uses the phrase וכ׳׳ש ערב לא משתעבד מק׳׳ו המשכון עצמו פטור כ׳׳ש הערב, which seems to indicate that the question was also about a surety. Furthermore, Responsum Cr. 34, gives exactly the same answer as Pr. 130, regarding a surety. Do such transactions fall under the rule of asmakta (אסמכתא)?
A. Both cases fall under the rule of asmakta and are, therefore, not binding.
SOURCES: Cr. 34, Pr. 130; L. 356; Asher, Responsa 108, 27.
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