Bava Kamma 092

נושא: BK

BET MIDRASH VIRTUALI

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If he gives him the capital but swore an oath concerning the "added fifth" he must repay "fifth on fifth", until the capital is reduced to less than one perutah. The same applies to a deposit. [The Torah] says [Leviticus 5:21-23]: "[When a person sins and commits a trespass against God by dealing deceitfully with his fellow in the matter of] a deposit or a pledge,or through robbery, or by defrauding his fellow, or by finding something lost and lying about it; if he swears falsely…" he must repay the capital, an added fifth and [bring] a guilt offering. [The owner asks] "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.

1:
Our present mishnah continues the discussion concerning someone who denies that he owes money. There are several clauses in this mishnah.

2:
The first clause of our mishnah is concerned with a muddled situation, and it is probably best understood as a scenario.

Sara lent David 100 dinars. When the time came for repayment David denied ever having received the money; however, later he admitted that he had, indeed, received the money from Sara and he repays her 100 dinars. Sara demands the "added fifth" and David swears that he has already given her the "added fifth". That "added fifth" is now considered to be capital that David owes Sara. Later, David admits that he lied about the "added fifth". He must now pay an "added fifth" on top of the original "added fifth" which has now become an unpaid loan. Thus David must pay 31 and one quarter dinars instead of the original "added fifth" of 25 dinars. Furthermore, each time that David swears that he has paid the "added fifth" and later recants he must add yet another "added fifth" to the ever-increasing additions until the last "added fifth" upon which he had sworn is worth less than one perutah.

3:
The next clause of our mishnah notes that the above procedure applies not only in the case of a loan but also in the case of a deposit. You may recall that several times during our study of this tractate we have noted the institution of "bailees". We described this in some detail in BK 028. We are concerned here with the first of the four "bailees".

4:
David is going on vacation so he asks Sam to look after 100 dinars for him until his return because he doesn't want to leave such a large sum unguarded. In BK 028 I described a "bailee" as "someone who has the property of another legally in his care". Since he is doing David a favour and no reward or remuneration is involved, Sam is now what the sages call "a gratis bailee", shomer ḥinam. The extent of the responsibility of such a bailee is that he take reasonable care of what was deposited with him. If it gets lost or damaged he must swear an oath that he did his best to look after it; he is then free of all responsibility (he was just doing a favour).

5:
When David returns from his vacation he asks Sam for his 100 dinars. Sam denies ever having received from David 100 dinars. Later he admits that he did receive the money. The rest of the procedure is the same as was described in the first clause. Our Mishnah even quotes the Torah [Leviticus 5:20-24] to show that a deposit is no different from a loan:

God spoke to Moses, saying: When a person sins and commits a trespass against God by dealing deceitfully with his fellow [in the matter of] a deposit or a pledge,or through robbery, or by defrauding his fellow, or by finding something lost and lying about it; if he swears falsely regarding any one of the various things that one may do and sin thereby — when one has thus sinned and, realizing his guilt, would restore that which he got through deceit … he shall repay the principal amount and add a fifth part to it. He shall pay it to its owner when he realizes his guilt.

6:
The last clause of our mishnah is concerned with a "gratis bailee" who denies having received money, but, after he has sworn an oath, witnesses testify to the fact that he had received the money and used it for his own purposes. Our mishnah presents an imaginary conversation between the depositor and the bailee:

David says to Sam, "Where are my 100 dinars?" Sam replies, "I have lost them." David says, "Swear an oath that you did your best to look after them." Sam does so. Later witnesses testify that Sam used the money for himself. Sam must repay the 100 dinars. If he voluntarily admits that he lied he must repay the capital, an added fifth and bring a guilt offering.

The guilt offering, which had to be brought while the Bet Mikdash was still functioning, is prescribed by the Torah [Leviticus 5:25-26]:

Then he shall bring to the priest, as his penalty to God, a ram without blemish from the flock, or the [monetary] equivalent, as a guilt offering. The priest shall make expiation on his behalf before God, and he shall be forgiven for whatever he may have done to draw blame thereby.

In this and the past few shiurim we have mentioned the "added fifth" many times. Hyman Fishman writes:

In Bava Kamma 091 You state the payment added is one fifth, then you put it in percentage form of 25% Shouldn't it be 20%,for the added amount, or 200 instead of 250?

I respond:

In BK 090 I wrote:

The Torah stipulates an additional 20%, but the sages increased it to 25%.

In Bava Metzi'a 54a the sages decided that the way that the "added fifth" is calculated is to divide the capital into four equal parts and then add as the fifth part the equivalent of one of those parts. So, 100 is divided into four parts, each of 25, and a fifth part of 25 is added so that the repayment is 125.

I hope this clarifies the matter of the "added fifth".

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