Bava Kamma 062

1:
In order to understand our present mishnah we must read again, more carefully, the original text of the Torah [Exodus 21:27]

The sages note that the Torah stipulates that four-fold or five-fold repayment is required if the culprit slaughters the animal that he has stolen or sells it to someone else. (If the animal is still in his possession and unharmed it is a case of simple theft incurring double indemnity.) Of course, like everything else in Rabbinic jurisprudence claims must be justified on evidence or on testimony; and the testimony of two witnesses is required to establish a fact at law.

2:
The introductory clause of our present mishnah establishes that it is not necessary that the theft and the subsequent profit from the theft (slaughtering the animal for its meat or selling it) be established by the same pair of witnesses. It is acceptable that two witnesses testify that the defendant stole the animal and a different set of two witnesses testify that he made a profit from his theft by slaughter or sale.

3:
The other clauses of our present mishnah are concerned with a series of cases in which one might think – wrongly – that, for certain and varied technical reasons, the four-fold or five-fold payment should be waivered. We shall now explain these cases one by one.

4:
If someone steals and sells [the animal] on Shabbat … he must make four-fold or five-fold repayment. Note that our mishnah does not include here the slaughter of the animal. This is because if the thief slaughtered the animal on Shabbat (and this is substantiated by two witnesses) he then faces a capital charge and, as Rambam succinctly explains in his commentary on our present mishnah, "it is axiomatic in our law that a person does not both suffer death and also pay a fine". However, selling something on Shabbat transgresses a law called shevut. These are rules and regulations instituted by the sages in order to further safeguard the sanctity of Shabbat. This means, of course, that the thief cannot face a capital charge and therefore, if found guilty, must make four-fold or five-fold repayment even though the sale took place on Shabbat.

To be continued.

Juan-Carlos Kiel has sent me a large number of theoretical questions concerning the status of the eved ivri which we discussed in the previous mishnah. I cannot bring all of his questions, a certainly not in one shiur, but let me make a start.

Here is the first question that Juan-Carlos asks:

Say Shim'on steals from Levi one lamb because he is hungry – he is absolutely destitute and that is the only way he can feed his family. Whereas Levi is very rich and his flocks cover the earth. Is it considered Shim'on's poverty an attenuating condition?

I respond:

Absolutely not! Woe betide any judicial system that takes into account the social status of the plaintiff or the defendant when delivering judgement! The Torah, several times, expressly forbids this. Let three examples suffice.

In rabbinic jurisprudence, as in anglo-saxon jurisprudence – justice is blind: regardless of social status guilty is guilty, innocent is innocent.

However, rabbinic jurisprudence does sometimes allow the court some leeway when sentencing the guilty – when determining their punishment. I could think of one course that would be open to the court in a case such as Juan-Carlos has described. Having declared Shim'on guilty of theft the judge might order that Shim'on be given the wherewithal to pay his fine from the public charity box. This is based on a very apposite remark of the sages in the Gemara:

If you don't stop up the holes in your wall don't blame the mouse for doing what comes naturally to him – moving your cheese! In the case which Juan-Carlos describes the judge could argue that the extreme poverty of Shim'on is a hole in the social fabric that society must stop up. But, of course, something like this can only be done after Shim'on has been pronounced guilty.