Our discussion today begins on Kuf Gimel Amud Bet, starting from the inquiry of Rav Huna Bar Yehuda, who cites Rav Shimon Ben Erez. The question arises concerning a person who purchased an item from one of five individuals but does not know to whom payment is due. In such a scenario, everyone agrees that the money can simply be left in a designated place, and the rightful owner will retrieve it. This is not considered an act of theft.
The core dispute between Rabbi Tarfon and Rabbi Akiva, however, concerns a different case: one involving theft. Rabbi Tarfon maintains that if a person stole an item but does not know which of several individuals is the victim, he can simply place the stolen item (the gezela) among them and be absolved. Rabbi Akiva, conversely, insists that the thief must pay each potential victim.
Yesterday, we established that our Mishnah's case, which aligns with Rabbi Akiva's view, involved a situation where the individuals made an oath and subsequently admitted to swearing falsely. The Gemara questions this interpretation: if the case involves a false oath, what difference does it make whether the original act was a purchase or a theft? In both scenarios, the person has committed a transgression by swearing falsely. Therefore, if a false oath is involved, there should be no disagreement between Rabbi Tarfon and Rabbi Akiva, as the false oath itself would necessitate payment. The Gemara concludes that the distinction must be that our Mishnah speaks of a case where the thief took a false oath (nishba), making him liable. In such a scenario, theft is a transgression, whereas a purchase is not. Even so, Rabbi Akiva holds that the stolen item must be returned. This cannot be the Mishnah's final ruling, as the Mishnah implies that the obligation to return the item is specifically due to the false oath (tukm yabah nishba). However, Rabbi Akiva's view would apply even without an oath; the gezela must still be returned.
Rava raises another challenge, citing a story: A pious man (hasid echad) purchased an item from one of two people but later forgot which one. He approached Rabbi Tarfon, who instructed him to leave the money in the middle. The Gemara notes that when the term "a pious man" is used in the Gemara without further identification, it refers to either Rabbi Yehuda Ben Baba or Rabbi Yehuda Ben Rabbi Elai, both of whom were known to be pious from the outset. This implies that the pious man in the story did not swear falsely. This serves as further proof that even without an oath, Rabbi Akiva would require payment to each individual, while Rabbi Tarfon would allow leaving the item in the middle. Therefore, the Mishnah, which requires returning the item to each, cannot be following Rabbi Akiva's view, as Rabbi Akiva's ruling applies even without an oath.
The Gemara then proposes a new interpretation: the Mishnah aligns with Rabbi Tarfon, who states that if a person stole from one of five individuals and doesn't know which one, it is sufficient to leave the money in the middle. If this is the case, why does the Mishnah state that the item must be returned to its original place? The answer is that the Mishnah refers to a situation where the thief took an oath (ishteba). In this scenario, Rabbi Tarfon agrees that the item must be returned to its original place, because a special verse applies to one who swears falsely and then admits it: "You must return it." Rabbi Akiva, on the other hand, imposes a penalty (kanas) even if no oath was taken, similar to the case of an oath. Thus, the dispute between Rabbi Akiva and Rabbi Tarfon is specifically in a case where no oath was taken (lo ishteba). Rabbi Tarfon says to leave it in the middle, while Rabbi Akiva says to return it to each individual.
The Gemara then questions Rabbi Tarfon's position: In a case where an oath was taken (meshteba), it is not enough to merely admit to the false oath (lo saga de lo hoda). The obligation to return the item only arises if the person admits to the theft. However, we have a Baraita stating that Rabbi Tarfon says if a thief voluntarily admits, "I stole from one of you, but I don't know which one," he must make reparations to both. This shows that even without an oath, if the thief admits, Rabbi Tarfon requires full restitution. Why, then, does the Mishnah limit Rabbi Tarfon's ruling to cases involving an oath and admission (davka nishba ve'hoda)? The Gemara concedes this point, concluding that we must return to the drawing board.
We revert to the original understanding that the Mishnah refers to a case where a person stole from one of five individuals. The Mishnah requires returning the item in all cases. This creates a problem: Rabbi Akiva says you must always return it, whether an oath was taken or not. Rabbi Tarfon says you never have to return it; you just leave it in the middle. So, who authored our Mishnah, which states that one must return the item specifically if an oath was taken?
The Gemara explains that our Mishnah has a unique dynamic: the thief knows who the victim is. In the cases of Rabbi Tarfon and Rabbi Akiva discussed earlier, the thief did not know the victim. Since the thief in our Mishnah knows the victim and admits to the theft, he wants to make restitution. This is considered as if the victim tells the thief, "Hold the money as a deposit (pikadon) until I come to collect it." However, if the thief swears falsely, as in the Mishnah's case, even though it's like a deposit, he must now physically return it to the victim's hand as an atonement (kapparah) for the oath. If he did not swear, it would be sufficient for the victim to say, "Hold it until I come." Therefore, the distinction in the Mishnah is that the thief knows the victim, and the additional stringency applies when an oath is involved.
Rava states that if the thief does not know who he stole from, even if he did not swear, Rabbi Akiva would still require him to pay each one. This is because the thief's admission and desire to make amends are considered a significant matter, akin to the victim saying, "Hold it as a deposit." But if he swore, we are stricter, and he must make atonement by returning it directly.
The Gemara then discusses the return of a stolen item. One cannot fulfill the obligation by giving it to the son of the victim or to an agent (shaliach) if something happens to the money before it reaches the owner. For example, if Reuven has money held by Shimon (meaning Shimon owes Reuven money), and Reuven appoints an agent in front of witnesses (edim) to collect it. Shimon then gives the money to this agent. The legal ruling (din) is that once Shimon gives the money to the agent appointed by Reuven in front of witnesses, Shimon is absolved. If something happens to the money afterward, Shimon does not have to pay again. This is based on the principle that payment to an authorized agent is considered payment to the owner.
Rav Azda argues that the agent is indeed an agent, which is why Reuven went to the trouble of appointing him with witnesses—to make him his legal representative. Otherwise, why appoint an agent with witnesses? Rav Huna disagrees, stating that Reuven merely meant, "I trust this person." The purpose of appointing him with witnesses was to assure Shimon that this person is trustworthy, not to make him a full legal agent. Therefore, if something happens to the money, Shimon would still be liable. This is the fundamental dispute between Rav Azda and Rav Huna.
The Gemara then brings a Mishnah as a challenge to Rav Azda: If one borrows a cow (hasho'el parapara) and wishes to return it, he sends it back with the son, servant (eved), or agent (shaliach) of the lender. If the cow dies en route, the borrower is exempt because, once given to the agent, it's considered paid. The Gemara asks: How do we know this person is an agent? It must be that the borrower appointed him as an agent. This implies that once an agent is appointed, it's as if the money reached the owner, and the borrower is exempt if something happens. This seems to contradict Rav Azda's view. The Gemara answers that the case in the Mishnah is where the agent was not appointed with witnesses (edim). If it were with witnesses, the borrower might still be liable. In the Mishnah's case, the agent is known to be the lender's regular employee or hired hand, so no witnesses are needed to establish his agency. Thus, there is no proof against Rav Azda from this Mishnah.
Returning to our Mishnah about returning stolen items, it states that one should not give the item to the victim's son or agent. The Gemara asks: How was this agent appointed? It must have been with witnesses. If so, why does the Mishnah say not to give it to him, implying that if something happens, it's not considered paid? This again challenges Rav Azda. The Gemara gives the same answer: the case in the Mishnah is where there were no witnesses. The agent is someone known to work for the victim or live in his house. But if the agent was appointed with witnesses, the borrower would be exempt. The Gemara then asks: Why does the Mishnah then say, "but give it to the court (bedin)"? Why not simply state that if the agent is appointed with witnesses, it works? The Gemara answers that giving it to an agent appointed by the victim with witnesses does not always work, whereas giving it to the court always works. Why? Because when it comes to an agent appointed by the court (shaliach bedin), it doesn't matter who appointed him—whether the thief or the victim. Both sides would be valid. However, a regular agent (outside the court) is only valid if appointed by the victim, not the thief. A thief cannot appoint an agent to receive the stolen item on behalf of the victim. Therefore, the Mishnah specifies giving it to the court because that is a universally effective method.
We then learn in a Baraita, citing Beit Shammai, that if one gives a stolen item to an agent appointed by the court (shaliach bedin), he is absolved if the victim appointed the agent, but not if the thief appointed him. If the victim appointed the agent and then collected the money from him, the thief is absolved from any subsequent mishaps (onsim). This contradicts the previous understanding that for a court-appointed agent, it doesn't matter who appointed him. This Baraita holds that even for a court-appointed agent, only the victim's appointment is valid.
Two Rabbis, Rav Huna and Rav Azda, state that an agent appointed to accept money makes the debtor liable for any mishaps (onsim) that occur to the money after it reaches the agent's hands. This is considered as if the money reached the owner. Our Mishnah, however, states that one cannot give the item to the victim's son or agent. This implies that even if the agent was appointed with witnesses, the thief is not absolved. The Gemara clarifies that the Mishnah refers to a case where the victim sent someone not as an official agent, but to make it easier for the thief to pay. For example, "I owe money, and I'm not sending it to him, so go there and maybe he'll pick it up." This is not an official agency, and thus no witnesses are needed to establish it. However, if the agent was appointed with witnesses, the thief would be absolved. The Mishnah then states that one should not give the item to someone merely carrying an insignia or stamp, as this does not constitute a valid appointment by witnesses. If the money doesn't reach the owner, the thief must pay again.
Shmuel states that even if an agent comes with a document (duktu) and witnesses, one cannot trust him. The Gemara asks: How then can the owner appoint an agent to collect money? Abaye suggests a "trick": the owner should transfer the debt via land (karka) to the collector. This way, the debt becomes the collector's own, and payment to him is valid. For example, Rabbi Yosef owed Rabbi Abba money. Rabbi Abba told Rav Safra, who was traveling to Rabbi Yosef's location, to pick up the money. Rabbi Yosef's son asked for a letter from Rabbi Abba stating that payment to Rav Safra would be considered payment to Rabbi Abba, thereby accepting responsibility (achriyut) for the money. Rav Safra did not have such a letter. When Rav Safra returned later with the letter, Rabbi Yosef's son still refused, fearing that Rabbi Abba might die in the interim, rendering the letter worthless. Abaye suggested that Rabbi Abba should transfer the debt to Rav Safra via land, making it Rav Safra's own debt to collect. Then, Rav Safra could accept responsibility, and Rabbi Yosef would be absolved upon payment. This method relies on trusting Rav Safra not to steal the money. The Gemara asks why a letter from Rabbi Abba to his heirs (yorshim) would not suffice. The answer is that heirs are not "heirs" until the person dies, so such a letter would not be effective beforehand. This method ensures the debt is transferred and protected immediately. This is illustrated by the story of Papa, who owed money to non-Jews (goyim). When he transferred the debt to someone else via land, he was very happy that the plan worked and the money was collected.
Returning to our Mishnah, which discusses a thief who wants to make restitution, it states that if he paid back the principal (keren) but not the additional fifth (chomesh), he does not have to travel to a distant place (Madai) to pay the chomesh. This implies that the obligation to return to Madai applies only to the principal, not the chomesh. The Gemara asks what this teaches us about the nature of chomesh. Is chomesh considered monetary compensation (mamon) or a religious obligation for atonement (mitzvah or kapparah)? The Mishnah implies that chomesh is a monetary item, as the thief "owes" it, even if he doesn't have to travel far to pay it. If it were merely a kapparah between him and the victim, it would not be considered a monetary payment. If the victim dies, the thief would not have to pay it to the heirs. However, if it's a monetary obligation, it falls to the heirs. We learned in a Mishnah that a person's assets are hypothecated (meshubadim) for all his debts, and these debts pass to his heirs. We also learned that if one gave the principal and swore falsely about the chomesh, he must pay an additional chomesh on the chomesh. This is only possible if the original chomesh is considered mamon, as the law of chomesh on a false oath only applies to monetary payments, not to a kapparah. Thus, there are multiple proofs that chomesh is mamon.
The Gemara then presents a contradiction. If a person stole from his friend, denied it, swore falsely, then admitted it, and subsequently died, his heirs must pay both the principal and the chomesh. This clearly shows that chomesh is mamon, as heirs do not inherit obligations of kapparah. However, the heirs are exempt from bringing the guilt-offering (asham), which is clearly a kapparah. But another Baraita states that heirs are exempt from paying their father's chomesh. This contradicts the idea that chomesh is mamon and passes to the heirs. The Gemara resolves this by citing Rabbi Nachman: The cases differ. If the father admitted to the theft before he died, the heirs must pay the chomesh (as it became a monetary obligation). If he did not admit before he died, then the heirs are not obligated to pay the chomesh. The Gemara clarifies that even if the father did not admit, if the heirs themselves admit that their father stole, they must pay the principal from the estate, but they are exempt from the chomesh, as a person cannot be obligated for his father's chomesh unless the father himself admitted and thus created a monetary obligation.
The Gemara then asks: If the father did not admit, why should the heirs pay the principal? The answer is that the heirs pay the principal because they themselves admitted. But why are they exempt from chomesh if they swore falsely about their father's theft and then admitted? They should pay chomesh for their own false oath. The Gemara explains that the exemption from chomesh in the Baraita applies when the stolen item itself was no longer in existence (lost or spent) at the time of the oath. In such a case, the son would only have to pay the principal if it was still there, but not the chomesh. But if the stolen item is not there, how can the son be obligated to pay the principal? The principal is tied to land (karka) through a lien (shibud), so even if the item is gone, the principal must be paid from the estate. However, this is only true if there was a court ruling (beit din) against the thief before he died, which creates a lien on his land. If there was no court ruling, a regular loan (malveh al peh) does not create a lien on land, and therefore the heirs would not be obligated to pay the principal either. The Gemara answers that the thief went to court before he died, and the court obligated him. This ruling is like a legal document (shtar) that creates a lien on the land. But if that's the case, and the court ruling makes it a monetary obligation on the land, why would the heirs be exempt from chomesh if they swore falsely about this monetary obligation? The Gemara answers that an oath (shevuah) does not apply to land (karkaot). Therefore, since the principal is now tied to land, an oath concerning it does not trigger the chomesh penalty. The son himself is not the thief; he is only paying due to the lien on the land. Therefore, he is exempt from chomesh.
Another explanation: We are discussing a case where the stolen money was in a bag, held by others, earmarked for the debt. The heirs denied its existence and swore falsely, then admitted. They must pay the principal because the money was there. But why no chomesh? Because when the heir swore, he genuinely believed he was swearing truthfully, perhaps because he didn't know the money was in the bag. Since he swore truthfully (from his perspective), he is exempt from chomesh, which is only imposed for a knowingly false oath. He only pays the principal because the item was indeed found.