Talmud - Bava Kamma 64b בבא קמא ס״ד ב׳

The Gemara asks: If so, if this is how the baraita is to be understood, the difficulty it posed is valid, as the baraita ends with an unanswered question: Why do I need the phrase: “If the theft shall be found”?

The Gemara answers: This phrase is necessary because there is a refutation for the derivation cited in the baraita, as follows: From where in the verse does the tanna derive that it means to include all types of items? From the latter generalization of “alive.” But in the latter generalization itself the word “alive” is written.

What does the principle of a generalization, and a detail, and a generalization accomplish, i.e., what does it include in the halakha of double payment? If it is written to include all types of items, this cannot be, as the word “alive” is written in the verse, indicating that if one steals animals, yes, he is liable to pay double payment, but if he steals something else, i.e., inanimate objects, no, he is not liable to pay double payment. Due to this reason, it was necessary for the Torah to include the phrase: “If the theft shall be found [himmatze timmatze],” which includes all items, through the principle of a generalization, and a detail, and a generalization.

The Sages state an objection: But these repeated verbs are two generalizations that are adjacent to each other in the verse, and the details follow both of the generalizations. Consequently, it is not a case of a generalization, a detail, and a generalization, but rather of a generalization, a generalization, and a detail. Ravina said: It is as they say in the West, Eretz Yisrael: Any place in the Torah where you find two generalizations adjacent to each other, place the detail between them and then treat them as a generalization, and a detail, and a generalization.

The Gemara applies this principle to the verse: Place the first detail, “ox,” between “himmatze” and “timmatze,” and treat the verse as a generalization, a detail, and a generalization, so that other items that resemble the detail are included. To include what? If it serves to include animals, this is not necessary, as animals are derived from the word “alive” later in the verse. Rather, it serves to include an item that is not an animal, i.e., inanimate objects, and this is how you should expound the verse: Just as the items mentioned in the detail are clearly defined as movable property and are items that have intrinsic monetary value, so too anything that is movable property and has intrinsic monetary value is included, to the exclusion of land and financial documents.

And furthermore, following this method, place the next detail, “donkey,” between himmatze and timmatze, and treat it as a case of a generalization, a detail, and a generalization, so that other items that resemble the detail are included. To include what? If it serves to include an item that is not an animal, this is not necessary, as it already was derived from the word “ox.” Rather, it serves to include an object that is clearly delineated, to the exclusion of objects that are not clearly delineated in size or quantity.

The Gemara asks: If that is so, if this is the correct way to analyze the verse, why do I need the verse to state “sheep”? There is nothing left to include. Rather, this whole approach must be rejected, and a new method of analysis applied, as follows: It is not treated as a case of a generalization, and a detail, and a generalization; rather, it is treated as a verse that amplified, restricted, and amplified, as the school of Rabbi Yishmael taught.

As the school of Rabbi Yishmael taught, concerning the verse: “These may you eat of all that are in the waters: Whatever has fins and scales in the waters, in the seas, and in the rivers” (Leviticus 11:9), as follows: The verse states: “In the waters,” “in the waters,” two times and only afterward lists the details of seas and rivers. This is not expounded as a generalization, and a detail, and a generalization, because the detail does not appear between the generalizations. Rather, the verse amplified, and then restricted, and then amplified, and thereby amplified the general category “waters” to include everything except for “seas” and “rivers,” the specific matter excluded in the restriction. Here too, since the two generalizations are written before the details, it is expounded as an amplification, a restriction and an amplification.

What do the generalizations himmatze and timmatze include? Do they include all items? If so, why do I need all these details of ox, sheep, and donkey? One detail serves to exclude land, and one serves to exclude Canaanite slaves, and one serves to exclude financial documents. The words “theft” and “alive [ḥayyim]” do not serve to exclude further items from double payment, but to indicate the halakha taught by Rav, who says: If one stole an item, and it deteriorated or its value decreased, he must revive [aḥayah] the principal to the value it had as of the time when he stole it, i.e., he must repay the owner according to the value of the item at the time it was stolen.

§ Until this point, the Gemara has been discussing the source of the obligation of a thief to pay double payment according to the baraita (63b) that maintains that both verses (Exodus 22:6–7) are referring to a bailee who falsely claims that a deposit was stolen from him. The Gemara asks: And according to the one who says that one of the two verses is speaking about a thief and one verse is speaking about a bailee who falsely states the claim that a thief stole from him, and he derives that a thief himself must pay double payment from the phrase “if the thief shall be found” (Exodus 22:6), what does he derive from this verse: “If the theft shall be found” (Exodus 22:3)?

The Gemara answers: He requires this verse for the halakha of Rava bar Ahilai, as Rava bar Ahilai says: What is the reason for the halakha of Rav, who says: One who admits he is liable to pay a fine is exempt, even if afterward witnesses come and testify to his liability? As it is written: “If the theft shall be found [himmatze timmatze],” which indicates that if it is found [himmatze] through witnesses that he is liable to pay the fine of double payment, it will be found [timmatze] that the fine will be enforced by judges. This excludes from double payment the case of one who incriminates himself by admitting his liability before any witnesses testify concerning him, and the same is applied to all cases that involve fines.

The Gemara asks: And 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, who applies this verse: “If the theft shall be found,” to the thief himself, from where do we derive that one who incriminates himself is exempt from paying double payment or any other fine? The Gemara answers: He derives it from the verse: “The one whom the judges convict shall pay double to his neighbor” (Exodus 22:8), which indicates that only one who is convicted by the judges on the basis of testimony must pay double, but not one who incriminates himself.

The Gemara continues its line of questioning: And according to the one who says that one verse is speaking about a thief himself and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, who derives from: “If the theft shall be found” that one who incriminates himself is exempt from payment of the fine, what does he expound from this verse: “The one whom the judges convict shall pay double to his neighbor”? He could have said to you: That verse is necessary to teach that one who admits his liability to pay a fine is exempt from payment if witnesses never come to testify against him. “If the theft shall be found” indicates that even if witnesses do come after he admitted his liability, he is exempt from paying the fine.

The Gemara continues: And the one who says that both verses are speaking about a bailee who falsely states the claim that a thief stole the deposit, and, as explained previously, derives from “if the theft shall be found” that a thief is required to pay double payment, holds that in the case of one who admits that he is liable to pay a fine, and afterward witnesses came and testified to his liability, he is obligated to pay the fine, contrary to the opinion of Rav.

The Gemara asks: And according to the one who says that one verse is speaking about a thief himself and one verse is speaking about a bailee who falsely states the claim that a thief stole the deposit, who derives the halakha of double payment for a thief from there, i.e., from the verse “if the thief shall be found” (Exodus 22:6), there is a difficulty. Granted, the phrase “if the theft shall be found” is required for teaching the halakha of Rava bar Ahilai. But why do I need all these details, “ox,” “donkey,” “sheep,” and “alive”? All the items excluded from double payment, such as land and slaves, are already derived from a different source.

The Gemara answers: This may be explained in accordance with what the school of Rabbi Yishmael taught. As the school of Rabbi Yishmael taught: Any passage that was stated in the Torah and was then repeated, was repeated only for the sake of a matter that was introduced for the first time in the repeated passage. That is, sometimes the Torah repeats an entire passage just for the sake of a single new detail. The single new detail derived from this passage is the halakha that one who admits that he is liable to pay a fine is exempt from paying the fine, which is derived from the words: “If the theft shall be found.”

The Gemara asks: But since the two cases of a thief and a bailee who falsely claims the deposit was stolen are juxtaposed, as their obligations to pay double payment are expressed in consecutive verses, say that a thief himself is not obligated to pay double payment unless he falsely confirms his innocence with an oath, just as a bailee is liable to pay double payment only under these circumstances.

The Gemara answers: This cannot enter your mind, as it is taught in a baraita: Rabbi Ya’akov says that the phrase “if the theft shall be found…he shall pay double” indicates that a thief pays double even without taking an oath. Rabbi Ya’akov elaborates: Do you say the verse obligates every thief, even without his taking an oath? Or perhaps it is speaking only of a thief who falsely confirms his innocence with an oath? You must say: This second possibility was not the Torah’s intent.

The Gemara asks: What is the meaning of the phrase: This was not the Torah’s intent? What is the proof that the Torah could not have meant that only a thief who falsely confirms his innocence with an oath pays double payment? Abaye said: If this was the Torah’s intent, let the Merciful One not write “he shall pay double” with regard to a thief at all, and let it be derived through an a fortiori inference from the case of a bailee who falsely states the claim that a thief stole the deposit, as follows: If, in the case of a bailee who falsely states the claim that a thief stole the deposit, for whom the deposit initially came into his possession in a permitted fashion, the verse states that he must pay double, then in the case of a thief himself, for whom the stolen object came into his possession in a prohibited manner from the start, is it not clear all the more so that he must pay double payment?

But then why do I need the words “he shall pay double,” which the Merciful One wrote concerning a thief himself? It must be that the verse adds to the requirement of double payment for a thief and indicates that he must pay double even without having taken an oath.

The Gemara asks: And does this verse, which states “if the theft shall be found” and concludes “he shall pay double,” come for this purpose? Isn’t it required for that which is taught in a baraita: The verse states: “If the theft shall be found in his possession.” From the term “in his possession [yado],”

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

Bava Kamma 64b explores hermeneutic rules of generalization and detail to determine which stolen items require double payment under Torah law.