Bava Kamma 093

1:
It is immediately clear to us that our present mishnah is a direct continuation of the previous mishnah. In the previous mishnah we dealt with a case where a gratis bailee does not return the deposit and claims that it got lost. In the present mishnah he claims that it was stolen from him.

2:
Here, too, we have an imaginary conversation between the two parties. David asks Sam to look after some money for him while he is away. When David returns and demands the return of his deposit Sam tells him that it was stolen from him. The required procedure is that Sam swear an oath that he did his best to look after the deposit for David. He is then free from all liability (because he was just doing someone a favour). However, in this case, witnesses come forward to testify that the thief was actually Sam himself!

3:
Many times in the course of our study of this tractate we have noted that a thief is required to restore what he stole with an additional fine of 100% – "double reparation".

4:
However, this is only the case when the fact of the theft and the identity of the thief are established in court. If Sam admits that he is the thief he is excused to "double reparation" and only has to repay the deposit with the "added fifth".

5:
Halakhic jurisprudence has to operate without a police force whose task it is to detect crimes and criminals. (The 'police' mentioned in the Torah [Deuteronomy 16:18] are actually bailiffs whose task it is to execute the decisions of the court.) In order for stolen property to stand a chance of being restored without the need of going to court and producing witnesses to the theft, a thief is encouraged to admit his guilt by knowing that if he does so he will get off with a lesser fine – only 25% instead of 100%. (According to Torah law, no one can be fined on his own confession.)

Amnon Ron'el has sent me comments on BK092, some of which were probably meant only for me to see. But, since I think that his comments can elucidate several points that need clarification, I shall present them here.

In the mishnah we read: "Where is my deposit?" and he replies "I have lost it" and the owner says "Swear on oath" and he responds "Amen" but there are witnesses who testify that he used it for himself, he must repay the capital. If he voluntarily admits [guilt] he must repay the capital, an added fifth and bring a guilt offering.

Amnon comments:

Hey! It doesn't pay to own up! In any case you'll end up a liar. If you own up you get to pay even more!

I respond:

Actually, this is not quite the case, as we have seen in today's shiur. However, Amnon's point is well taken. David agreed to do Sara a favour and look after her money. The moment he denies having received the money he is tantamount to a thief according to our conceptions. However, from the point of view of the sages he is technically a 'shomer hinam' [a gratis bailee] who has not returned what was deposited with him. All that is required of him is to return the deposit. However, if he admits his guilt the ruling of the Torah itself applies. Probably Sara would be glad to get back her deposit! Also, most of my comments in today's shiur are pertinent here as well.

In the explanations we said: "Furthermore, each time that David swears that he has paid the "added fifth" and later recants…

Amnon comments:

It seems strange to me that they permit this process as an established method. The punishment on swearing an oath and recanting should grow, since he is like a "persistent liar". At least the guilt offerings grow relative to the debt.

I respond:

I would imagine that when a large sum of money is involved the man's lawyers suggest to him to drag out the process as long as he can. Perhaps the situation will change and he will not have to pay so much. Just my guess.

I wrote: "The next clause of our mishnah…" This is a rendition of the technical term in Aramaic emtza'ita.

Amnon comments:

Emtza'ita? Forgive me, but I don't recognize this term in Aramaic – or is this a typo?

I respond:

Over the years we have learned that the sages referred to the various clauses of a longish mishnah by technical terms. The first clause is called reisha, the last clause is called seifa and a middle clause is called emtza'ita.

I explained how the "added fifth" became, in fact, an added quarter.

Amnon comments:

I would have preferred that the sages says that in their opinion a fifth is not enough and that it must be increased to a quarter, instead of craftily saying that it is a fifth of the total payment, including the fine.

I respond:

I see Amnon's point. However, the discussion in the Gemara to which I referred does show a genuine attempt at elucidation, with proofs offered.