Talmud - Bava Kamma 63b בבא קמא ס״ג ב׳

a lost item that he had found, which he had been obligated to safeguard until it could be returned to its owner, he pays double payment, as it is stated: “For any manner of lost thing about which one shall say: This is it…the one whom the judges convict shall pay double to his neighbor” (Exodus 22:8).

§ We learned in a mishna elsewhere (108b) about a case where an owner of an item said to the bailee: Where is my deposit? The bailee said to him: It was lost. The owner said: I administer an oath to you that it was actually lost, and the bailee said: Amen, thereby accepting the oath; and subsequently the witnesses testify about the bailee that he himself consumed the deposit. In this case, the bailee pays the principal, i.e., the value of the deposit, to the owner. If the bailee admitted on his own that he stole the deposit before any witnesses testified to this effect, he pays the principal and an additional one-fifth of the principal amount to the owner, and he brings a guilt-offering to atone for his sin (see Leviticus 5:20–26).

The mishna continues with another case: The owner said to the bailee: Where is my deposit? The bailee said to him: It was stolen. The owner said: I administer an oath to you, and the bailee said: Amen; and the witnesses testify about the bailee that he stole the deposit. In this case, the bailee pays double payment. If he admitted his theft on his own, he pays the principal and an additional one-fifth to the owner, and he brings a guilt-offering to atone for his sin.

The Gemara says: In any event, the mishna teaches that in the case of a bailee who falsely states the claim that a thief stole the deposit, he pays double payment, but in the case of a bailee who falsely claims that a deposit was lost, he does not pay double payment. And it also teaches that even with regard to one who falsely states the claim that a thief stole the deposit, it is only by taking an oath to substantiate his claim that he pays double payment, but for simply lying without taking an oath he does not pay double payment.

From where are these matters derived? As the Sages taught in a baraita: The Torah states: “If a man gives his neighbor money or vessels to safeguard and it was stolen from the house of the man, if the thief shall be found he shall pay double” (Exodus 22:6). The verse is speaking of a bailee who falsely states the claim that a thief stole.

The baraita continues: Do you say that the verse is speaking about one who falsely claims that a deposit was stolen, or is it speaking only about the thief himself, teaching that if the actual thief is caught he must pay double payment? When the Torah says in the following verse: “If the thief shall not be found…the one whom the judges convict shall pay double to his neighbor” (Exodus 22:7–8), the verse is speaking of one who falsely states the claim that a thief stole the deposit, as it states that no other thief was found. Since the latter verse is speaking of one who falsely claims that a deposit was stolen, it stands to reason that the earlier verse is speaking of this case as well.

It is taught in another baraita: When the Torah states: “If the thief shall be found he shall pay double” (Exodus 22:6), the verse is speaking of the thief himself. Do you say that it is speaking about the thief himself, or is it speaking only about one who falsely states the claim that a thief stole? If so, then when the verse then says: “If the thief shall not be found…the one whom the judges convict shall pay double to his neighbor” (Exodus 22:7–8), the case of one who falsely states the claim that a thief stole the deposit is already stated. How, then, do I realize the first verse about paying double: “If the thief shall be found,” so that it not be superfluous? It must be that the first verse is speaking of the thief himself.

The Gemara comments: Although the two baraitot disagree about the meaning of the earlier verse, in any event everyone agrees that the latter verse, which states: “If the thief be not found [im lo yimmatze hagannav]…shall pay double to his neighbor,” is referring to a bailee who falsely states the claim that a thief stole the deposit. From where is this interpretation inferred from the verse? Rava said that the verse should be understood as follows: If it is not found [im lo yimmatze] to be as he said, i.e., if his claim that the deposit was stolen is found to be untrue, but he himself stole it, he shall pay double to his neighbor.

The Gemara turns its attention to another facet of this halakha: And from where do we derive that this double payment of one who falsely claims that the deposit was stolen applies only when the bailee has taken an oath that it was stolen?

The Gemara answers: As it is taught in a baraita with regard to the verse: “If the thief shall not be found, the homeowner shall approach the judges to determine if he laid his hand [shalaḥ yado] on his neighbor’s goods” (Exodus 22:7). This means that he shall come to court for the purpose of taking an oath. Do you say he comes to court for the purpose of taking an oath, or is it only for the purpose of facing judgment? The meaning may be determined by means of a verbal analogy. Laying the hand [shliḥut yad], referring to misappropriation, is stated later, in the verse: “The oath of the Lord shall be between them both, to see whether he has not laid his hand [shalaḥ yado] on his neighbor’s goods” (Exodus 22:10), and laying the hand is stated above, i.e., Exodus 22:7. Just as laying the hand later is referring explicitly to an oath, so too laying the hand here is referring to an oath.

The Gemara analyzes the two baraitot cited earlier: Granted, according to the one who says in the second baraita that one verse about double payment is speaking about the thief and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, this is why two verses are written, as each verse teaches a different halakha. But according to the one who says in the first baraita that both of the verses are speaking about a bailee who falsely states the claim that a thief stole the deposit, why do I need two verses? One verse should be sufficient.

The Sages say: Both verses are necessary because one verse serves to exclude from double payment the case of one who falsely states the claim that the item has been lost. Double payment is paid only when the bailee falsely claims that the item under his care was stolen.

The Gemara asks: And according to the one who says that one verse is speaking about the thief and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, so that there is no superfluous verse, from where does he learn to exclude from double payment a bailee who falsely states the claim that the item has been lost? The Gemara answers: He derives it from the fact that the verse could have stated: If a thief [gannav] shall not be found, but it states instead: “If the thief [hagannav] shall not be found.”

The Gemara asks: And since according to the one who says that both verses are speaking about a bailee who falsely states the claim that a thief stole the deposit one of the verses excludes the case of a bailee who falsely claims that the deposit was lost, what does he derive from the fact that the verse did not state: If a thief shall not be found, but it states instead: “If the thief shall not be found”?

The Gemara answers: He could have said to you that this terminology is necessary to teach what Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: One who falsely states the claim that a thief stole the deposit pays double payment, and if the deposit was an ox or sheep and he slaughtered or sold it, he pays the fourfold or fivefold payment.

The Gemara notes: According to the one who says that one verse is speaking about a thief and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, who employed this change in terminology, i.e., the fact that the verse could have stated: If a thief shall not be found, but states instead: “If the thief shall not be found,” to exclude the case of a bailee who falsely states the claim that the deposit was lost, there seems to be no source to teach the halakha stated by Rabbi Ḥiyya bar Abba. Accordingly, from where does he derive the halakha taught by Rabbi Ḥiyya bar Abba, that if the bailee slaughtered or sold the animal he pays a fourfold or fivefold payment?

The Gemara answers: He could have said to you: It is a juxtaposition, as liability for double payment for a thief and for a bailee who falsely claims that the deposit was stolen are juxtaposed to each other. Therefore, just as a thief pays a fourfold or fivefold payment if he slaughtered or sold the animal, so must the bailee. And although these two cases are not entirely comparable, this derivation cannot be refuted on that basis, as there is a principle that one cannot refute a derivation based on juxtaposition by drawing distinctions between the two juxtaposed cases.

The Gemara asks further: Granted, according to the one who says that one verse is speaking about the thief and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, it is well. But according to the one who says that both verses are speaking about a bailee who falsely states the claim that a thief stole the deposit, from where does he derive that a thief himself must pay double payment for stealing?

And if you would say: Let it be derived by an a fortiori inference from the case of the bailee who falsely states the claim that a thief stole the deposit, because if one is obligated to pay double payment for falsely claiming that a deposit was stolen, which constitutes passive theft, all the more so must a thief himself pay double payment, this derivation is not possible. The reason is that it is sufficient for the conclusion that emerges from an a fortiori inference to be like its source. In other words, a halakha derived by means of an a fortiori inference cannot be more stringent than the halakha of the source from which it is derived. Consequently, on the basis of this a fortiori inference, it would have to be concluded that just as there, in the source case, the double payment is required only when the guilty party took an oath, so too here, when the thief himself pays double, it is only when he took an oath that he did not steal it.

The Gemara responds: He derives the obligation of a thief to pay double payment without having taken an oath from a third verse: “If the theft shall be found in his possession alive, whether it is an ox, or a donkey, or a sheep, he shall pay double” (Exodus 22:3). The double payment in this verse applies to all items, as is derived from what the school of Ḥizkiyya taught. As the school of Ḥizkiyya taught: Let the verse state only “ox” and “theft,” and all items would be included. Why was it necessary to also mention “donkey” and “sheep”?

Had the verse had been written this way I would have said: Just as the item mentioned in the detail is clearly defined as an item that is sacrificed on the altar, so too everything that is sacrificed on the altar is subject to double payment, but other items are not. What else is there for you to include in this category? Sheep, which, like oxen, can be sacrificed on the altar.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 63b examines a bailee's liability for false claims of theft or loss of a deposit, contrasting double payment with principal plus one-fifth restitution.