Bava Kamma 208

אין משלחין מעות בדיוקני ואפילו עדים חתומים עליה ורבי יוחנן אמר אם עדים חתומים עליה משלחין

it is not right to forward [trust] money through a person whose power of attorney is authenticated by a mere figure,<span class="x" onmousemove="('comment',' Except at the sender's risk. If the figure was of people of great renown it would suffice; (Tosaf. a.l.) ');">¹</span> even if witnesses are signed on it [to identify the authentication]. R. Johanan, however, said: If witnesses are signed on it [to identify the authentication] it may be forwarded. But I would fain say: In accordance with the view of Samuel what remedy is available?<span class="x" onmousemove="('comment',' In the case of power of attorney that the payer be released from further responsibility. ');">²</span>

אמרי לשמואל מאי תקנתא כי הא דרבי אבא הוי מסיק זוזי בדרב יוסף בר חמא א"ל לרב ספרא בהדי דאתית אייתינהו ניהלי כי אזל להתם אמר ליה רבא בריה מי כתב לך התקבלתי א"ל לא אי הכי זיל ברישא ויכתוב לך התקבלתי

— The same as in the case of R. Abba,<span class="x" onmousemove="('comment',' Who settled in the Land of Israel, for which cf. Ber. 24b. ');">³</span> to whom money was owing from R. Joseph b. Hama,<span class="x" onmousemove="('comment',' Who lived in Mehoza in Babylon. cf. Git. 14a. ');">⁴</span>

לסוף אמר ליה אי כתב לך נמי התקבלתי לאו כלום הוא דלמא אדאתית שכיב רבי אבא ונפלו זוזי קמי יתמי והתקבלתי דרבי אבא לאו כלום הוא א"ל ואלא מאי תקנתא זיל נקנינהו לך אגב ארעא ותא את כתוב לן התקבלתי

and who therefore said to R. Safra:<span class="x" onmousemove="('comment',' Who travelled extensively, cf. infra 116a. ');">⁵</span> 'When you go there, bring it to me,' and it so happened that when the latter came there, Raba the son [of the debtor] said to him, 'Did the creditor give you a written statement that by your accepting the money he will be deemed to have received it?'<span class="x" onmousemove="('comment',' And thus released my father from further responsibility. ');">⁶</span>

כי הא דרב פפא הוה מסיק תריסר אלפי זוזי בי חוזאי אקנינהו ניהליה לרב שמואל בר אבא אגב אסיפא דביתיה כי אתא נפק לאפיה עד תואך:

and as he said to him, 'No,' he rejoined, 'If so, go back first and let him give you a written statement that by your acceptance he will be deemed to have received the money.'<span class="x" onmousemove="('comment',' And thus released my father from further responsibility. ');">⁶</span> But ultimately he said to him, 'Even if he were to write that by your acceptance he will be deemed to have received the money,<span class="x" onmousemove="('comment',' And thus released my father from further responsibility. ');">⁶</span>

נתן לו את הקרן וכו': אלמא חומש ממונא הוא ואם מיית משלמי ליה יורשין

it would be of no avail, for before you come back R. Abba might perhaps [in the meantime] have died,<span class="x" onmousemove="('comment',' On account of old age. ');">⁷</span> and as the money would then already have been transferred to the heirs the receipt executed by R. Abba would be of no avail.'<span class="x" onmousemove="('comment',' For the contract of agency as any other executory contract would by the death of the principal become null and void, just as he then instantly becomes deprived of the ownership of all his possessions. ');">⁸</span>

ותנן נמי נתן את הקרן ונשבע על החומש הרי מוסיף חומש על חומש אלמא חומשא ממונא הוא

'What then,' he asked, 'can be the remedy?' — 'Go back and let him transfer to you the ownership of the money by dint of land,<span class="x" onmousemove="('comment',' In accordance with Kid. 26a, and supra p 49. ');">⁹</span> and when you come back you will give us a written acknowledgment that you have received the money.'<span class="x" onmousemove="('comment',' As in that case your receipt will suffice, you being the legal owner of the sum claimed. ');">¹⁰</span>

ותניא נמי הכי הגוזל את חבירו ונשבע לו ומת יורשין משלמים קרן וחומש ופטורין מן האשם

as in the case of R. Papa<span class="x" onmousemove="('comment',' Who was engaged in commerce in a large way; v. Ber. 44b. ');">¹¹</span> to whom twelve thousand <i>zuz</i> were owing from men of Be-Huzae<span class="x" onmousemove="('comment',' [Modern Khuzistan, S.W. Persia; Obermeyer. p. 204 ff.] ');">¹²</span>

ויורשין בני שלומי חומשא דאבוהון הוו (אלמא חומש ממונא הוא ובעי שלומי יורשין) ורמינהו עדיין אני אומר אימתי אינו משלם חומש על גזל אביו בזמן שלא נשבע לא הוא ולא אביו

and who transferred the ownership of them to Samuel b. Abba<span class="x" onmousemove="('comment',' Cf. B.B. 77b and 150b, where 'b. Aha' is in the text as is also in MS.M. and who is mentioned together with R. Papa in Naz. 51b and Men. 34a. ');">¹³</span> by dint of the threshold of his house,<span class="x" onmousemove="('comment',' In accordance with Kid. 26a, and supra p 49. ');">⁹</span>

הוא ולא אביו אביו ולא הוא הוא ואביו מנין ת"ל (ויקרא ה, כג) אשר גזל ואשר עשק והוא לא גזל ולא עשק

and when the latter came back the former [was so pleased that he] went out to meet him as far as Tauak.<span class="x" onmousemove="('comment',' [S. of Naresh, the home of R. Papa.] ');">¹⁴</span> IF HE REFUNDED HIM THE PRINCIPAL BUT DID NOT PAY HIM THE FIFTH&nbsp;… HE WOULD NOT HAVE TO GO AFTER HIM [FOR THAT]. This surely proves that the Fifth is a civil liability,<span class="x" onmousemove="('comment',' As it differs from the Principal only regarding the ruling stated in the Mishnah. ');">¹⁵</span>

אמר רב נחמן לא קשיא כאן שהודה כאן שלא הודה

so that were the robber to die<span class="x" onmousemove="('comment',' Before having paid the Fifth. ');">¹⁶</span> the heirs would have to pay it. We have also learnt: IF HE REFUNDED TO HIM FOR THE PRINCIPAL AND TOOK AN OATH REGARDING THE FIFTH, HE WOULD HAVE TO PAY HIM A FIFTH ON TOP OF THE FIFTH, similarly proving that the Fifth is a civil liability. It was moreover taught to the same effect: If one man robbed another but took an oath [that he did not do so] and [after admitting his guilt he] died, the heirs would have to pay the principal and the Fifth, though they would be exempt from the trespass offering. Now, since heirs are subject to pay the Fifth which their father would have had to pay, [it surely proves that the Fifth is a civil liability which has to be met by heirs]. But a contradiction could be raised [from the following]: 'I would still say that the case where an heir has not to pay the Fifth for a robbery committed by his father is only where neither he nor his father took an oath.<span class="x" onmousemove="('comment',' Falsely. ');">¹⁷</span>

אי לא הודה קרן נמי לא משלם וכי תימא הכי נמי דלא משלם והא מדקא מהדר אחומש למימרא דקרן משלם

Whence could it be proved that [the same holds good] where he though not his father, took an oath or his father but not he took an oath or even where both he and his father took oaths? From the significant words, <i>That which he took by robbery or the thing which he hath gotten by oppression</i><span class="x" onmousemove="('comment',' Lev. V, 23. ');">¹⁸</span> whereas in this case he<span class="x" onmousemove="('comment',' I.e., the heir. ');">¹⁹</span>

ועוד תניא ועדיין אני אומר אימתי הוא משלם קרן על גזל אביו בזמן שנשבע הוא ואביו אביו ולא הוא הוא ולא אביו לא הוא ולא אביו מנין ת"ל גזילה ועושק אבידה ופקדון יש תלמוד

has neither taken violently away nor deceived anybody.'<span class="x" onmousemove="('comment',' This ruling contradicts the conclusion arrived at above that the Fifth is a civil liability and that heirs would have to pay it! V. Supra on Lev. V, 23. ');">²⁰</span> — Said R. Nahman: There is no contradiction, as in one case the father admitted his guilt [before he died],<span class="x" onmousemove="('comment',' In which case he has already become liable for the Fifth and the heirs would have to pay it. ');">²¹</span>

ויתיב רב הונא וקאמר להא שמעתא א"ל רבה בריה יש תלמוד קאמר מר או ישתלמו קאמר מר א"ל יש תלמוד קאמינא ומריבויא דקראי אמרי

whereas in the other he<span class="x" onmousemove="('comment',' I.e., neither the father nor the son, but cf. the discussion that follows. ');">²²</span> never admitted it. But if no admission was made, why should the heirs have to pay even the principal? If, however, you argue that this will indeed be so [that they will not have to pay it].<span class="x" onmousemove="('comment',' In the latter case. ');">²³</span>

אלא מאי לא הודה לא הודה אביו והודה בנו

since the whole discussion revolves here<span class="x" onmousemove="('comment',' In the latter case. ');">²³</span> around the Fifth, does it not show that the principal will have to be paid? It was moreover taught explicitly: 'I would still say that the case where an heir has to pay the principal for a robbery committed by his father was only where both he and his father took oaths or where his father though not he, or he though not his father took an oath, but whence could it be proved that [the same holds good] where neither he nor his father took an oath? From the significant words: <i>The misappropriated article</i> and<i> the deceitfully gotten article, the lost article and the deposit</i><span class="x" onmousemove="('comment',' Cf. Lev. V, 23. ');">²⁴</span>

ונחייב בנו חומש אשבועה דידיה אמרי בשאין גזילה קיימת אי בשאין גזילה קיימת אפילו קרן נמי לא משלם לא צריכא דאיכא אחריות

as [Yesh Talmud=] this is certainly a definite teaching.'<span class="x" onmousemove="('comment',' Sifra on Lev. V, 23. ');">²⁵</span> And when R. Huna was sitting and repeating this teaching, his son Rabbah<span class="x" onmousemove="('comment',' Who did not catch the correct pronunciation of the last phrase in the original and was therefore doubtful as to whether it constituted two words or one word. ');">²⁶</span>

וכי איכא אחריות נכסים מאי הוי מלוה על פה היא ומלוה על פה אינו גובה לא מן היורשין ולא מן הלקוחות

said to him: Did the Master mean to say Yesh Talmud [i.e. there is a definite teaching on this subject] or did the Master mean to say Yishtallemu [i.e., it stands to reason that the heirs should have to pay]? He replied to him: I said Yesh Talmud [i.e. there is a definite teaching on the subject] as I maintain that this could be amplified from the [added] Scriptural expressions.<span class="x" onmousemove="('comment',' From the objects of payment enumerated in detail in Lev. V, 23. But if no admission whatever was made why should even the principal be paid? ');">²⁷</span> — It must therefore be said that what was meant by the statement 'he made no admission' was that the father made no admission though the son did. But why should the son not become liable to pay even a Fifth for his own oath?<span class="x" onmousemove="('comment',' When he took it falsely. ');">²⁸</span>

אמרי

— It may, however, be said that the misappropriated article was no longer extant in this case.<span class="x" onmousemove="('comment',' And as according to the Mishnaic ruling infra 111b the son could in such a case not be made responsible for the misappropriated article, by committing perjury he rendered himself subject to Lev. V, 4, but not to the Fifth etc. ibid. 24-25. ');">²⁹</span> But if the misappropriated article was no longer extant, why should he pay even the principal?<span class="x" onmousemove="('comment',' Since the Mishnaic ruling, infra loc. cit. is to apply. ');">³⁰</span> — No; it might have application where real possessions were left.<span class="x" onmousemove="('comment',' In which case the heirs are liable, v. loc. cit. ');">³¹</span> (But were even real possessions to be left, of what avail would it be since the liability is but an oral liability, and, as known,<span class="x" onmousemove="('comment',' V. B.B. 42a, 157a and 175a. ');">³²</span> a liability by mere word of mouth can be enforced neither on heirs nor on purchasers?<span class="x" onmousemove="('comment',' As a liability which is not supported by a legally valid document or judicial decision is only personal with the debtor. ');">³³</span> — It may however be said