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Babylonian Talmud: Tractate Baba Kamma
would have been right in not concurring with an anonymous statement of a single Tanna.
The Nehardeans said: We do not execute an assignment on movables1 [which are outside the possession of the parties].2 Said R. Ashi to Amemar: On what ground? He replied: Because of the view of R. Johanan. For R. Johanan said: If a robber has misappropriated an article and the owner has not abandoned hope of recovering it, neither of them is able to consecrate it; the one because it is not his, the other because it is not in his possession. Some read that the Nehardeans said: We do not execute an assignment on movables [the claim upon which] was denied [by a bailee]. The reason is that the claim was denied, as the deed of assignment would then appear a lie,3 whereas where it is not denied, we would be able to execute. The Nehardeans further said: An assignment which does not contain the words, 'Go forth and take legal action so that you may acquire title to it and secure the claim for yourself' is of no validity, the reason being that the defendant might say to him:4 'You have no claim against me'. But Abaye said: If it is written, 'You will be entitled to a half or a third or a fourth of the claim', it would be valid, for since he is entitled to litigate regarding the half, he is also entitled to litigate regarding the whole.5 Amemar said: [In any case] where the assignee became possessed of articles belonging to the defendant, we would not take them away from him.6 But R. Ashi said: Since it was written for him,7 'Whatever will be imposed by the Court of Law I accept upon myself', he was surely appointed but an agent.8 Some, however, say that he is made a partner. What is the practical difference?9 Whether he may remain possessed of a half. The law is that he is appointed only an agent.10
MISHNAH. IF A THIEF IS CONVICTED OF THE THEFT [OF A SHEEP OR AN OX] ON THE EVIDENCE OF TWO WITNESSES,11 AND OF THE SLAUGHTER OR SALE [OF IT] BY THE SAME TWO, OR ON THE EVIDENCE OF ANOTHER TWO WITNESSES, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.12 IF HE STEALS AND SELLS ON THE SABBATH DAY,13 OR IF HE STEALS AND SELLS FOR IDOLATROUS PURPOSES, OR IF HE STEALS AND SLAUGHTERS ON THE DAY OF ATONEMENT,14 OR IF HE STEALS FROM HIS OWN FATHER, AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED,15 OR AGAIN, WHERE HE STEALS AND SLAUGHTERS AND THEN CONSECRATES IT, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.16 IF HE STEALS AND SLAUGHTERS TO USE THE MEAT FOR CURATIVE PURPOSES OR TO GIVE TO DOGS, OR IF HE SLAUGHTERS AND FINDS THE ANIMAL TREFA,17 OR IF HE SLAUGHTERS IT AS UNCONSECRATED IN THE 'AZARAH,18 HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.19 R. SIMEON, HOWEVER, RULES THAT THERE IS EXEMPTION IN THESE [LAST] TWO CASES.20
GEMARA. Are we to say that the Mishnah is not in accordance with R. Akiba? For how could it be in accordance with R. Akiba who said that [the Scriptural term] 'Matter'21 implies 'not half a matter'? As indeed taught:22 R. Jose said: 'When [my] father Halafta went to R. Johanan b. Nuri to learn Torah, or as others, when R. Johanan b. Nuri went to [my] father
Baba Kamma 70b
Halafta, he said to him: Suppose a man had the use of a piece of land for one year as testified by two witnesses, for a second year as testified by two other witnesses, and for a third year as testified by still two other witnesses, what is the position? — He replied: 'This is a proper usucaption'.1 Whereupon the other rejoined: 'I also say the same, but R. Akiba joins issue on the matter for R. Akiba used to say: [Scripture states] A matter [implying] "but not half a matter"'!2 — Abaye, however, said: You may even say that this is in accordance with R. Akiba. For would R. Akiba not agree in a case where two witnesses state that a certain person had betrothed a woman3 and two other witnesses testify that another person had subsequently had intercourse with her,4 that though the evidence regarding the intercourse presupposes the evidence regarding the betrothal [in order to become relevant], nevertheless, since the evidence of betrothal does not presuppose the evidence of intercourse, each testimony should be considered a matter [complete in itself]? So also here, though the evidence regarding the slaughter presupposes the evidence regarding the theft [if it is to be relevant] nevertheless since the evidence regarding the theft does not presuppose the evidence regarding the slaughter, each testimony should be considered a matter [complete in itself].5 But according to the Rabbis6 what will this term 'matter' [implying] 'but not half a matter' exclude? — It will exclude a case where one witness testified that there was one hair on her back7 and the other states that there was one hair in front. But [since each hair is testified to by one witness],8 would this not be both half a matter and half a testimony?9 — [We must say] therefore that it excludes a case where two witnesses testify that there was one hair on her back and two other witnesses state that there was one hair in front, as in this case the one set testify that she was still a minor10 and the others similarly testify that she was still a minor.
IF HE STEALS AND SELLS ON THE SABBATH DAY … [HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT]. But has it not been taught [elsewhere] that he would be exempt? — Said Rami b. Hama: If it was taught there that he would be exempt, it was only where the purchaser said to him:11 'pluck figs off my fig-tree12 and transfer to me [in consideration of them] the objects you have stolen.'13 It may however, be argued that seeing that if the purchaser claimed from him before us in the court14 we would be unable to order him to go and to pay since [at the time of the alleged liability,] he became subject to a capital charge, why should not even the sale itself be declared no sale at all?15 — R. Papa therefore said: There would be exemption [where the purchaser said to him], 'Throw your stolen objects [from a public thoroughfare] into my private courtyard,16 and transfer to me [thereby]17 the objects you have stolen.'18 Whom does this follow? R. Akiba,19 who said that an object intercepted in the air is on the same footing [regarding the law of Sabbath] as if it had already come to rest.20 For if we were to follow the other Rabbis,21 while the possession of the stolen objects would be transferred as soon as they reached the air of the court-yard of the purchaser's house,22 in regard to Sabbath the capital liability would not be incurred until they have reached the actual ground!19 — Raba thereupon said: It may still be in accordance with Rami b. Hama.23 For the hire [of a harlot] was prohibited by the Torah24 [from being used for the Temple] even [when given by a son] for having incestuous intercourse with his mother, irrespective of the fact that were she to have claimed it from him before us in the court, we should not have been able to order him to go and give her the hire.25 We see then that although were she to have claimed it from him by law, we should have been unable to order him to go and pay her,25 nevertheless when he of his own accord pays her [the hire] it will be subject to the law of the hire [of a harlot].24 So also here regarding payment [for the figs plucked by the thief on the Sabbath], if the purchaser had claimed it by law in our presence, we should have been unable to order the thief to go and pay;25
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