The Evi B. Sitt Edition and Audio Series of the Talmud Bavli, Masechet Baba Kamma, has been generously sponsored in our Daf Yomi program by our good friend, patron, and charter member of our Daf Yomi class, Siyahu Ashar Hakohen, and his dear wife, Rina. With God’s help, may they enjoy continued success and prosperity in all their endeavors, good health, happiness, prosperity, and much satisfaction from their children. May they enjoy many years of peace in the home, tranquility, and peace of mind. Amen and amen.
We are on the top line: “Because it is not his, and because it is not in his possession.” We are already familiar with Rabbi Hanan’s ruling, which we learned on the previous page. A thief stole an object, but there had been no relinquishment by the owner. Therefore, the thief does not own it and cannot transfer ownership of it to someone else. Since it is not his, the owner also cannot transfer it to another person, even though it belongs to him, because it is not in his possession.
Based on this, the scholars of Nehardea taught a ruling regarding a power of attorney. What does that mean? A person may write a document appointing an agent to remove movable property from someone else’s possession. Perhaps he wants to bring a claim before the court, but he cannot appear personally. Since a person generally has to be present before the court to assert that the movable property belongs to him, what can he do if he cannot attend? He writes a power of attorney appointing an agent and gives that agent full authority to go to court, represent him, and recover whatever movable property he is claiming.
The Gemara calls this document a power of attorney. Rav Ashi says that one may not write such a document for movable property. Why not? Since the movable property is not yet in the possession of the person making the claim, he cannot transfer ownership of it to the agent whom he is appointing. Consequently, the agent cannot represent him in court merely by virtue of that appointment.
The claimant wants to use a proxy to represent him in court, but the defendant can respond, “I have no dealings with you. I do not recognize you, and I am not going to surrender anything to you.” Therefore, the claimant must transfer the money or property to the agent as though it were the agent’s own. The money that the agent is claiming must be transferred to him, so that he becomes the actual party to the case.
The problem is that the claimant does not yet possess the money or property. How, then, can he transfer it? He writes a power of attorney stating that if there is any interest in the movable property, the agent is to pursue the claim and acquire it for himself. According to Rabbi Hanan, a person can transfer an object that is not in his possession. The principle that Rav Ashi is teaching is that just as a person cannot transfer something that is not in his possession, he cannot transfer the movable property to the agent either. The agent needs this document in order to represent the claimant, and the document must transfer the property to him.
There is another version of the ruling. The scholars of Nehardea said that one may not write a power of attorney for movable property when the defendant denies the claim. Why specifically when he denies it? Because then the entire document appears fraudulent. The claimant is transferring to the agent money or property that is not yet in his possession, while the defendant is saying that the transaction or debt never existed. Under those circumstances, the document appears to be a false document.
Rashi explains that when the defendant denies the claim, the agent is being appointed to act in court on the basis of an alleged debt that the defendant denies. Since the property is not in the claimant’s possession and the defendant denies owing it, the power of attorney appears to be false. It follows that if the defendant does not deny the claim, the power of attorney may be written and given to the agent.
The Gemara then presents the actual wording of the document. It must say: “Go to court, establish that the property is mine, and take it for yourself.” The claimant must genuinely transfer the property to the agent. He must give the agent the full right to say, “Go and acquire these goods for yourself.” Otherwise, the defendant can say, “I have no dealings with you.” The court examines the power of attorney, and if it does not contain these words—words that place the agent fully in the position of the claimant—the court will not adjudicate the case.
This is true even if the claimant gave the agent rights to only part of the claim. For example, if the claim is for ten thousand dollars and the claimant says, “I am giving you the right to go to court and recover five thousand dollars,” once the document contains the proper wording, the agent may recover the entire amount.
Why? Once the court believes him regarding the portion that belongs to him, it believes him regarding the remainder as well. Since he is considered trustworthy concerning part of the claim, he is trustworthy concerning the entire claim. This is similar to the principle that once a person has been accepted as reliable for one matter, he is accepted as reliable for the related matter as well.
Rav Amemar said that if the agent seizes the money, it cannot be taken from him. Once the agent succeeds in court and receives the money, he acquires it. The claimant may come afterward and say, “That is my money. I appointed you only to represent me; now return it.” The response is that the document expressly made it the agent’s money. The hope is that the agent will act faithfully and return it, because he was appointed to represent the claimant. But if the agent keeps the money for himself, it cannot be taken from him.
This is the novelty of the ruling. The document is written in such a way that the agent becomes the owner of the property. If the agent who received the power of attorney ultimately keeps the money, he retains it, and the claimant cannot recover it from him.
Rav Ashi explains that if the document states that all expenses incurred on behalf of the claimant will be reimbursed, this may make the agent a partner. Since the claimant is paying all the expenses, the agent may be considered entitled to a share of the property. According to one view, he may take up to half of it. The reasoning is that although he is an agent, the claimant has undertaken to pay all his expenses, and that arrangement gives him the status of a partner. Thus, he may take half of the money, while the other half belongs to the claimant.
The Mishnah continues: If a person stole an animal, and two witnesses testified that he stole it, while two other witnesses testified that he slaughtered or sold it, he must pay the fourfold or fivefold payment. The witnesses who testified that he stole the animal do not have to be the same witnesses who testified that he slaughtered or sold it. Even if one pair testifies to the theft and another pair testifies to the slaughter or sale, he must pay fourfold or fivefold.
If he stole an animal and sold it on Shabbat, he must pay the fourfold or fivefold payment. If he stole it and sold it for idolatry, he must also pay the fourfold or fivefold payment. If he stole it and slaughtered it on Yom Kippur, he must likewise pay the fourfold or fivefold payment.
Let us first review these cases. The Mishnah teaches that in all of them, the thief must pay fourfold or fivefold. The only time he would not pay is when the act of selling or slaughtering itself carries the death penalty. In that case, the rule is that the more severe punishment takes precedence. Since he is liable to death for the act, he does not also pay the monetary penalty.
For example, if a person stole an animal and slaughtered it on Shabbat, the slaughtering involves a capital violation. Because he is liable to the death penalty, he would not pay fourfold or fivefold, nor would he pay any other monetary penalty. However, if he merely sold the animal on Shabbat, there is no death penalty for the sale itself. Therefore, he is liable for the fourfold or fivefold payment.
The same applies if he sold the animal for idolatry. He did not worship it; he sold it for idolatry. Since there is no death penalty for the sale, he must pay fourfold or fivefold. Similarly, if he stole an animal and slaughtered it on Yom Kippur, there is no death penalty for that act. The prohibition involves excision, not execution. Therefore, he remains obligated to pay fourfold or fivefold.
The Mishnah then discusses a person who stole an animal from his father and slaughtered or sold it, and afterward his father died. He must pay fourfold or fivefold, because at the time he stole the animal, it belonged to his father. His father did not die until after the entire act had been completed.
If, however, the father died between the theft and the slaughter or sale, the son would become an heir. The animal would then become his property, and he would no longer be liable for the fourfold or fivefold payment. Therefore, the Mishnah’s case must be one in which the father died only after the entire act was completed. When the animal was slaughtered or sold, it was still not his.
Rashi explains the distinction. The case is one in which the thief slaughtered or sold the animal and only afterward his father died. If the father died first and the son slaughtered or sold the animal afterward, he would be exempt, because he had inherited it. The Mishnah is therefore teaching that the father died only after the slaughter or sale.
The Mishnah continues: If a person stole an animal, slaughtered it, and then consecrated it, he must pay fourfold or fivefold. When he slaughtered it, it was still not consecrated and was still his victim’s property. If he had consecrated it first and slaughtered it afterward, he would not be liable for fourfold or fivefold, because it would no longer be his property.
The final part of the Mishnah discusses a person who stole an animal and slaughtered it, but not for ordinary consumption. For example, he slaughtered it for medicinal purposes, or in order to feed it to dogs. He must still pay fourfold or fivefold. The same applies if he slaughtered the animal and discovered that it was a non-kosher animal, or if he slaughtered an ordinary animal in the Temple courtyard. In all these cases, he must pay fourfold or fivefold.
The novelty in the case of medicinal use and feeding dogs is that he did not slaughter the animal in order to eat it. Nevertheless, the slaughter is considered a slaughter. The novelty in the case of an animal found to be non-kosher is that the animal is not edible. Even so, the act of slaughter took place, and the thief is liable.
Rabbi Shimon exempts him in the last two cases: when he slaughtered the animal for dogs and when he slaughtered an animal that was found to be non-kosher. Since a non-kosher animal cannot be eaten, Rabbi Shimon does not regard the act as a valid slaughter for this purpose. Similarly, if the animal was slaughtered in the Temple courtyard, it cannot be eaten, even though the slaughter itself was otherwise valid.
However, if he slaughtered the animal for medicinal purposes or for dogs, the animal itself is edible. The only difference is that he did not intend to eat it. Rabbi Shimon therefore agrees that in such a case the thief is liable, because the slaughter was valid and the animal was fit for consumption.
The Gemara asks why the Mishnah allows two different pairs of witnesses. We have a principle that witnesses who testify in court must provide complete testimony. Rabbi Akiva derives this from the word “matter” in the verse, teaching that the testimony must be a complete matter and not half a matter.
According to Rabbi Akiva, when two witnesses testify that the thief stole the animal and two other witnesses testify that he slaughtered it, the second pair needs the first pair. The testimony of the second pair alone does not establish anything, because they only testify that he slaughtered an animal. They need the first pair to establish that the animal had been stolen. Therefore, the second testimony appears to be only half a testimony.
The Gemara cites a teaching in the name of Rabbi Yosef. When Abba Halapta went to Rabbi Yohanan ben Uri to study Torah, Rabbi Yohanan ben Uri told him the following case. A person lived on a field for one year, then for a second year, and then for a third year. After three years, his possession is considered established, because no one protested or challenged his presence.
However, testimony is needed that he lived on the field for all three years. In the first year, two witnesses testified that they saw him living on the field for one year. In the second year, two different witnesses testified that they saw him living there during the second year. In the third year, two other witnesses testified that they saw him living there during the third year. The testimony of all three pairs together establishes the presumption of ownership.
The teaching says that this is considered a valid presumption of ownership. Rabbi Yohanan ben Uri responded, “I agree with you, but Rabbi Akiva would not agree with us.” Rabbi Akiva would say that this is half a matter. A person who testifies that he saw someone living on a field for one year has not established anything by himself. His testimony is meaningful only together with the testimony concerning the other two years.
The Gemara responds that Rabbi Akiva would agree in another case. Suppose two witnesses testify that a man betrothed a woman, and two other witnesses testify that they saw the woman have relations with another man. That second testimony establishes that she is an adulteress only if the first testimony has established that she was married. If she was not married, her relations with another man would not make her an adulteress.
Thus, the witnesses who testify about the relations need the witnesses who testified about the betrothal. Nevertheless, Rabbi Akiva accepts their testimony. The reason is that the witnesses to the betrothal do not need the witnesses to the relations. Once they testify that the man betrothed the woman, their testimony stands on its own. Since the dependence exists only in one direction, Rabbi Akiva considers the testimony complete.
The principle is that testimony is invalid as half a matter only when each testimony depends on the other. If the first testimony needs the second and the second needs the first, then neither one stands independently. But when one testimony stands on its own and the second testimony merely adds to it, Rabbi Akiva considers the entire matter complete.
The same applies to the case in the Mishnah. The witnesses who testify that the animal was stolen do not need the witnesses who testify that it was slaughtered. Their testimony establishes the theft by itself. Although the witnesses to the slaughter need the witnesses to the theft, the dependence exists only in one direction. Therefore, Rabbi Akiva would agree that the thief must pay fourfold or fivefold.
According to this, everyone agrees in the case of the theft and slaughter. The testimony concerning the theft stands alone, while the testimony concerning the slaughter depends on it. Everyone also agrees in the case of the betrothal and the relations. The testimony concerning the betrothal stands alone, while the testimony concerning the relations depends on it.
Where, then, do the Sages disagree with Rabbi Akiva? They disagree in the case of the presumption of ownership over the field. In that case, the first year, the second year, and the third year together form the three-year process. Each testimony appears to require the other two, because no single year establishes the presumption. Rabbi Akiva therefore considers it half a matter.
The Sages, however, say that this is not considered half a matter. The only case in which they apply the principle of half a matter is when two witnesses testify that they saw one hair on one part of a girl’s body, and two other witnesses testify that they saw one hair on another part of her body.
A girl becomes an adult at twelve years of age when she also develops the requisite hairs. One witness testifies that he saw one hair on one part of her body, and another witness testifies that he saw one hair on another part. We cannot combine the testimonies to establish that she is an adult, because each witness is testifying about only one hair. The testimony itself establishes only that she is still a minor, and we cannot transform two incomplete testimonies of minority into testimony of adulthood.
In the case of the field, however, the witnesses are not contradicting one another or attempting to change the status of the field. They are simply describing the first year, the second year, and the third year of one continuous process. If the first witnesses say that the person lived there during the first year, the next witnesses add the second year, and the third witnesses add the third year. Since establishing possession requires three consecutive years, the testimonies combine to establish the entire process. The Sages therefore do not consider it half a matter.
We have, therefore, discussed four cases. In the case of the theft and slaughter, everyone agrees that the thief must pay fourfold or fivefold, because the testimony concerning the theft stands independently. In the case of the betrothal and the relations, everyone agrees that the testimony is valid for the same reason.
The disagreement is in the case of the presumption of ownership. Rabbi Akiva says that the testimony of each year needs the others and is therefore half a matter. The Sages say that the three testimonies are parts of one continuous process and may be combined. According to the Sages, the principle of half a matter applies only in the case of two testimonies that each establish only one hair and cannot be combined to establish adulthood.
The Gemara returns to the Mishnah: If a person stole an animal and sold it on Shabbat, he is exempt from the fourfold or fivefold payment. We previously explained that if he slaughtered the animal on Shabbat, he would be liable to the death penalty and would therefore be exempt from the monetary payment. But if he merely sold it on Shabbat, where is the death penalty?
The Gemara cites a teaching that one who sells an animal on Shabbat is exempt. It asks: How can there be a death penalty for a sale? Rav Hamnuna answers that the case is where the buyer says to the thief, “I will not acquire the stolen animal through an ordinary purchase. Go and pick figs from my tree, and through that act I will acquire the animal.”
The buyer knows that the animal was stolen, but he nevertheless wants to acquire it. He tells the thief to pick figs from his tree, and the acquisition of the animal will take place through the picking of the figs. Since picking the figs on Shabbat is itself a prohibited act, the sale is being effected through an act that carries a death penalty. Therefore, the Gemara initially suggests that this is the case of a sale on Shabbat for which the thief is exempt from the fourfold or fivefold payment.
The Gemara rejects this answer. If the buyer later brings the thief to court, he cannot demand that the transaction be annulled and that the figs be returned to him. Nor can he demand that the animal be returned while he receives payment. Since the thief was liable to the death penalty for the act through which the sale was effected, the sale would not be considered a valid sale. If so, this cannot be the case referred to by the Mishnah, because the Mishnah is discussing a genuine sale.
The Gemara therefore asks again for a case in which the sale is valid, but the thief is exempt because the sale took place on Shabbat.
Rav Pappa answers that the buyer tells the thief, “Throw the animal into my courtyard, and my courtyard will acquire it for me.” The thief throws the animal through the public domain, and it lands in the buyer’s courtyard. The transfer from the public domain to the private domain is a violation of Shabbat. At the same time, the animal enters the buyer’s courtyard and is acquired by him. Thus, the act of desecrating Shabbat and the act of sale occur simultaneously.
The Gemara asks how the sale can take effect before the animal actually lands in the courtyard. It answers that this follows the opinion of Rabbi Akiva, who says that once an object enters the airspace of the courtyard, it is considered as though it has already landed. Therefore, at the moment the animal enters the airspace, two things occur simultaneously: the violation of Shabbat and the acquisition of the animal by the buyer’s courtyard.
Since the thief is liable to the death penalty for transferring the animal from one domain to another on Shabbat, and the sale takes effect at that same moment, the rule exempting a person from a monetary penalty when he is liable to death applies. This is why the Mishnah says that one who sells on Shabbat is exempt from the fourfold or fivefold payment.
According to the Sages, however, the animal is acquired by the courtyard only when it actually lands. The violation of Shabbat also occurs only when it lands. If so, the sale and the violation occur at the same moment even according to the Sages. The Gemara explains that the buyer may have stipulated, “I do not want my courtyard to acquire the animal until it lands.” In that case, even according to the Sages, the acquisition and the violation of Shabbat take place simultaneously, and the thief is exempt from the fourfold or fivefold payment.
Rava offers another explanation. He returns to the first case involving the figs and says that the sale is in fact valid. The principle that an act carrying the death penalty nullifies a sale is not correct. We see this from the law of the payment given to a prostitute. The Torah prohibits using such a payment to purchase a sacrifice, even when the relationship involved a woman with whom the man would be liable to the death penalty.
Even if, for example, the woman was the man’s mother, the money retains the status of such a payment. Certainly, the son would not have to pay her if she brought him to court, because he is liable to death for the act. Nevertheless, if he did give her the money, it would be considered a prohibited payment. Thus, although the court would not force him to pay because of the death penalty, the money would still retain its legal status.
The same applies here. If the thief picked the figs and thereby became liable to the death penalty for desecrating Shabbat, the buyer could not successfully demand that the court compel the thief to return the animal or the figs. Nevertheless, the sale itself remains a sale. Since the sale is valid, the case qualifies as a sale on Shabbat, and the thief is exempt from the fourfold or fivefold payment because he is liable to the death penalty for the act through which the sale was carried out.
This is the conclusion of Rava’s explanation: the fact that the thief is not compelled to complete or refund the transaction because of his liability to death does not mean that the transaction loses its legal status. Just as the payment to a prostitute remains such a payment even though the court would not enforce it, the sale remains a sale even though the thief is not required to pay or return the property. Therefore, the fourfold or fivefold payment is not imposed.