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Babylonian Talmud: Tractate Baba Kamma
nevertheless, since the thief was prepared to transfer the possession [of the stolen objects] to him by this procedure it should be considered a sale.
IF HE STEALS AND SLAUGHTERS ON THE DAY OF ATONEMENT etc. I would ask, why [should this be so]? It is true that no capital punishment is attached here,1 but there will at least be the punishment of lashes, and is it not an established ruling2 that no man who is lashed can be ordered to pay?3 — It may, however, be said that the Mishnah is in accordance with R. Meir who said4 that a person who is lashed may also be ordered to pay.3 But if in accordance with R. Meir, why should there be no liability even for slaughtering on the Sabbath?5 And should you affirm that while he holds that one may be lashed and be ordered to pay, he6 does not hold that one may be condemned to death and also ordered to pay. [I would ask,] does he really not [maintain this second ruling]? Was it not taught:7 'If he steals and slaughters on the Sabbath or if he steals and slaughters to serve idols,8 or if he steals an ox condemned to be stoned9 and slaughters it, he has to make four-fold or five-fold payment according to R. Meir,10 but the Rabbis rule that there is exemption'? — I might reply that this ruling applies to all cases save this, for it was stated with reference to it that R. Jacob stated that R. Johanan said, or as others say, that R. Jeremiah stated on behalf of R. Simeon b. Lakish that R. Ile'a and the whole company11 said in the name of R. Johanan that the slaughter [in that case] was carried out by another person [acting on behalf of the thief].12 But how could the one13 commit an offence14 and the other15 be liable to a fine?16 — Raba replied: This offence here is different, as Scripture says: And slaughter it or sell it:17 just as selling [becomes complete] through the medium of another person,18 so also slaughter may be effected by another person. The School of R. Ishmael taught: [The term] 'or'19 [inserted between 'slaughter' and 'selling' was meant] to include the case of an agent.20 The School of Hezekiah taught: The term 'instead'19 [was intended] to include the case of an agent.
Mar Zutra demurred to this. Is there [he said] any action for which a man is not liable if done by himself but for which he is liable if done by his agent? — R. Ashi said to him: In that case21 it was not because he should not be subject to liability, but because he ought to be subject to a penalty21 severer than that. But if the slaughter was carried out by another one, what is the reason of the Rabbis who ruled that there was exemption? — We might say that the Sages [referred to] were R. Simeon who stated that a slaughter through which the animal would not ritually become fit for food could not be called slaughter [in the eyes of the law].22 But I would say, I grant you this in regard to serving idols and an ox condemned to be stoned, as [through the slaughter] the animal will in these cases not become fit for food,23 but in the case of the Sabbath, does not the slaughter render the animal fit for food? For did we not learn that if a man slaughters on the Sabbath or on the Day of Atonement, though he is liable for a capital offence,24 his slaughter is ritually valid?25 — It may, however, be said that he26 concurred with R. Johanan ha-Sandalar, as we have learned, If a man cooks [a dish] on the Sabbath, if inadvertently, [even] he himself27 may partake of it,28 but if deliberately, he should not partake of it29 [on that day]. So R. Meir. R. Judah says: If inadvertently, he may eat it only after the expiration of the Sabbath,30 whereas if deliberately he should never partake of it.31 R. Johanan ha-Sandalar says: If inadvertently, the dish may be partaken of after the expiration of the Sabbath, only by other people, but not by himself, whereas if deliberately, it should never be partaken of either by him or by others.32 What was the reason of R. Johanan ha-Sandalar? — R. Hiyya expounded at the entrance of the house of the prince:33 Scripture says: Ye shall keep the Sabbath therefore, for it is holy unto you.34 Just as holy food is forbidden to be eaten,35 so also what is unlawfully prepared on the Sabbath is forbidden to be partaken of. But, [you might argue,] just as holy food is forbidden for any use,35 so should whatever is [unlawfully] prepared on the Sabbath also be forbidden for any use.36 It is therefore stated further: 'Unto you',34 implying that it still remains yours for general use.37 It might [moreover] be thought that the prohibition extends even where prepared inadvertently, it is therefore stated: Everyone that profaneth it shall surely be put to death,34 [as much as to say], I speak only of the case when it is done deliberately, but not when done inadvertently.
R. Aha and R. Rabina differ in this matter. One said that whatever is [unlawfully] prepared on the Sabbath is forbidden on Scriptural authority whereas the other [Rabbi] said that whatever is [unlawfully] prepared on the Sabbath is forbidden on Rabbinic authority. He who said that it was on Scriptural authority bases his view on the exposition just stated, whereas he who said that it was on Rabbinic authority holds that when Scripture says, 'It is holy', it means that it itself38 is holy, but that which is [unlawfully] prepared on it is not holy. Now I grant you that according to the view that the prohibition is based on Scriptural authority, the Rabbis because
Baba Kamma 71b
of this have rightly ruled that there is exemption,1 but according to the view that it is based on Rabbinic authority, why did the Rabbis rule that there is exemption?2 — [Their exemption applies] to the other cases; to serving idols, and an ox condemned to be stoned.
But why does R. Meir impose liability in the case of slaughtering for the service of idols? For as soon as he starts the act of slaughtering in the slightest degree he renders the animal forbidden,3 so that the continuation of the slaughter is done on an animal already forbidden for any use whatever, and as such, was he therefore not slaughtering that which no longer belonged to the owner?4 — Raba replied: The rule applies to one who declares that it is only at the very completion of the act of slaughter that he intends to serve idols therewith. But what about an ox condemned to be stoned? Is it not forbidden for any use whatever, so that he slaughters that which does not belong to the owner?4 — Raba thereupon said: We are dealing here with a case where the owner had handed over the ox to a bailee, and as it did damage [by killing a person] in the house of the bailee it was declared Mu'ad in the house of the bailee and its final verdict was issued while it was in the house of the bailee; R. Meir thus on one point concurred with R. Jacob and on another point he concurred with R. Simeon: On one point he concurred with R. Jacob who said that if even after its final verdict was issued the bailee restored it to the owner, it would be a legal restoration;5 and on another point he concurred with R. Simeon who stated6 that an object the absence of which entails money loss is regarded as possessing an intrinsic value,7 as we have learned: R. Simeon says: In the case of consecrated animals8 for the loss of which the owner is liable to replace them by others, the thief has to pay,9 thus proving that an object whose absence entails money loss is regarded as possessing an intrinsic value.10 R. Kahana said: When I reported this discussion in the presence of R. Zebid of Nehardea, I asked: How could you explain our Mishnah11 to be [only] in accordance with R. Meir12 but not in accordance with R. Simeon, since it is stated in the concluding clause, R. SIMEON HOWEVER RULES THAT THERE IS EXEMPTION IN THE LAST TWO CASES,13 thus implying that in the other cases of the whole Mishnah he agrees? — He14 however said to me; No, it merely implies that he agrees in the case of slaughtering or selling to use the meat for curative purposes or to give to dogs.15
IF HE STEALS FROM HIS OWN FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED, etc. Raba inquired of R. Nahman: If he steals an ox of two partners and after slaughtering it he confesses to one of them,16 what would be the law?17 — Shall we say that the Divine law says: 'Five oxen',18 [implying] 'but not five halves of oxen', or do the 'five oxen' mentioned by the Divine Law include also five halves of oxen? — He replied:19 The Divine Law says 'five oxen' [implying] 'but not five halves of oxen'.20
He, however, raised an objection against him [from the following]: IF HE STEALS FROM HIS FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT. Seeing that the father died,21 is not this case here on a par with a case where he went22 and confessed to one of the partners, and it is yet stated that he has to make four-fold or five-fold payment? — He replied: Here we are dealing with a case where, for instance, his father has already appeared in the court before he died.23 Had he not appeared in court, the son would not have had to make four-fold or five-fold payment. If so, instead of having the subsequent clause 'Where he steals of his father [who subsequently died] and afterwards he slaughters or sells, he has not to pay four-fold and five-fold payments,'24 why should not [the Mishnah] make the distinction in the same case itself by stating, 'This ruling25 applies only where the father appeared in court, whereas if he did not manage to appear in court, the thief would not have to make four-fold and five-fold payments'?26 — He replied:27 This is indeed so, but since the opening clause runs 'IF HE STEALS FROM HIS FATHER AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED', the later clause also has the wording, 'where he steals from his father and after his father died he slaughters or sells'. In the morning, however, he said to him:27 When the Divine Law said 'five oxen' it also meant even five halves of oxen, and the reason why I did not say this to you on the previous evening
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