תלמוד על בבא קמא 107:9

“He said to the recipient of a fee,” etc. Rebbi Joḥanan said, one who claims before his neighbor a claim of thief in a case of loss is liable¹⁰⁰A person who finds a lost object with distinguishing marks by which the owner can convincingly describe it is obligated to return it to its owner (Deut. 22:1–3); by picking it up he automatically becomes an unpaid keeper. If the owner hears that the object was found by that person and comes to reclaim it, if the finder had honestly told him that he lost it again he would not be liable since he was an unpaid keeper. But if he falsely claimed that it was stolen, he is liable for double restitution required for any false claim of theft (Ex. 22:8).. “Where is my lost object?” He told him, “it was stolen.” Rebbi Joḥanan said, one who claims before his neighbor a claim of thief is liable only after an oath. What is the reason? It is said here “grabbing” and it says there “grabbing.” Since “grabbing” mentioned there only applies after an oath, so also “grabbing” mentioned here only applies after an oath¹⁰¹“Grabbing” is mentioned in Ex. 22:7 regarding court procedures involving an oath for an unpaid keeper who falsely claims that the object was stolen and has to pay double restitution. It also is mentioned in v. 10 regarding the paid keeper who for an actually stolen object has to pay its value (v. 11) but double restitution for a false claim of theft for which he swore falsely.. Rebbi Joḥanan said, one who claims a claim of loss, swore to him, and afterwards claimed a claim of thief is not liable¹⁰²Babli Bava qamma107b. Since he discharged his obligations towards the owner by his oath, the second claim is irrelevant.. Rebbi Joḥanan asked: May one be liable for a blurted oath in case of an oath regarding a claim of thief¹⁰³If he swears for the second claim (truly or falsely), is this a blurted oath in the meaning of Lev. 5:4?? The argument of Rebbi Joḥanan seems to be inverted. There he said, if he claimed a claim of loss, swore to him, and afterwards claimed a claim of thief is not liable. And here he says so¹⁰⁴How can he say he is not liable and then make him liable for a blurted oath?? There it is obvious to him, here it is problematic for him¹⁰⁵He is not liable for an oath about a deposit; this implies nothing for the rules of blurted oaths.. What is problematic for him? He saw and found it simple¹⁰⁶The previous answer is incorrect. He saw that the answer is simple: since the second oath is not required it would be a blurted oath if true and a false oath if false, sinful in any case.. Rebbi Ḥiyya bar Joseph said¹⁰⁷Babli Bava qamma106b/107a. He notes that Ex. 22:8 in general is read as applying to court proceedings (6:1 Note 1, Bava meṣi`a1:1 Note 9) expressing the general conditions when an oath can be imposed. Therefore the double restitution imposed at the end of the verse has to be in such a proceeding, and double restitution imposed on the paid keeper or renter is imposed on the same basis by the argument of Note 101., one who claims before his neighbor a claim of thief is liable only after he denied in court. Where do we hold? If about him who already owes an oath<sup>108</sup>By court order. to his neighbor, even if he was swearing out of court he is liable. But we must hold about him who saw them coming. They wanted to make him swear but he jumped in and swore<sup>109</sup>Before there was any court proceeding. This oath does not protect him from having to swear another oath imposed by the court; therefore it does not trigger double restitution.. Rebbi Ḥiyya in the name of Rebbi Joḥanan: When it was standing at his feeding trough<sup>110</sup>Babli Bava qamma107b.. Rebbi Ze`ira asked: how was it said? “If it was standing” or “even if it was standing”¹¹¹What kind of testimony will make him pay double restitution? Since he is a keeper and the animal was delivered to him, it needs an act of acquisition to be stolen and then this has to be classified as robbery, rather than as theft. If the animal was standing at a feeding trough on his property,there it belongs. If he claims that it was stolen, he is liable for double restitution. If he took it as his property, he is a robber, the animal is his property, he has to pay for it, but any oath will be irrelevant since it would not be about the other’s property. But if the formulation was “even if it was standing at his feeding trough” then it would apply even if he took it by robbery. (Rashi in Bava qamma.)? If you say “even if it was standing,” it makes no difference¹¹²Whether he took the animal before he swore or after.. If you say “if it was standing,” then the argument of Rebbi Joḥanan is inverted. There, he said, if he claimed before him a claim of loss, had been swearing to him, selected a sacrifice¹¹³For his false oath., and then claimed a claim of duress, he is not liable¹¹⁴For double restitution, since by the oath and payment he acquired the animal and the second claim is baseless; cf. Note 102.. But here you are saying so? Rebbi La said, there is a difference since he absolved himself of confession by the oath¹⁰²Babli Bava qamma107b. Since he discharged his obligations towards the owner by his oath, the second claim is irrelevant.. They objected to the opinion of Rebbi Ze`ira: “‘Where is my ox?’ He told him, ‘it was stolen.’ ‘I want you to swear;’ he answered ‘Amen’. Witnesses testify that he stole it: he has to pay double restitution⁷⁴This is not the double restitution of the common thief (since the owner himself handed the animal or vessel over to him) but the double restitution required by Ex. 22:8.. If he confessed himself he pays the value, and a fifth, and a reparation sacrifice⁷³Following Lev. 5:20–25..” But here when he moved it¹¹⁵He did not move it but acquired it by the oath as if he had moved it after buying. by claiming that it was lost. Afterwards he claimed a claim of thief and is not liable¹⁰²Babli Bava qamma107b. Since he discharged his obligations towards the owner by his oath, the second claim is irrelevant.. Explain it that he swore to him but slaughtered it afterwards¹¹⁶When he already had acquired the animal by his oath.. The students of Rebbi Ḥiyya bar Julianus say, explain it that he slaughtered it when it was lying down¹¹⁷He was an honest keeper beforehand; the animal was still its owner’s property. He did not move the animal with the intent of appropriating it; the animal was acquired by slaughter. This argument presupposes that quadruple or quintuple restitution applies only for slaughter or sale after theft.. Is there slaughter without sale¹¹⁸It should read: “Is there restitution for slaughter without prior theft”?? Following Symmachos who said, there can be slaughter and sale without theft¹¹⁹He holds that quadruple or quintuple restitution is independent of restitution for theft; theft has not to be proven, only illegal slaughter. In the Babli (Bava qamma75b) he states that if there were witnesses for the theft whose testimony stood up and witnesses for slaughter or sale which were found perjured, the accused has to pay double restitution for theft and the perjurers double or triple restitution for the false accusation, showing that slaughter or sale can be separated from theft. (The thief of cattle who sells his booty has to pay five times, not seven.). Samuel said, if there came no witnesses of the theft, but there came witnesses of the slaughter; he is liable¹²⁰He holds that while quadruple or quintuple restitution applies only to stolen animals, the theft has not to be proven in court if there are witnesses for illegal slaughter..