Bava Kamma 63

Perverse incentives.

Today’s daf presents us with two cases where one person asks someone else to watch their item only to find out later that the item is gone. In the first case, the guardian reports that the item was lost, while in the second, the guardian reports that it was stolen. In each case, the owner makes the guardian swear that the item really was either lost or stolen. But then witnesses come forward who report that, in fact, the item was neither lost nor stolen, but the guardian themself had used it up! The guardian has now been exposed for committing two crimes: swearing falsely and misappropriating whatever they agreed to watch. 

What happens next? That depends on the case. In the case where the guardian had reported the object lost and then been reported by witnesses:

He pays the principal. If he admitted on his own, he pays the principal and one-fifth and a guilt-offering.

By contrast, if the guardian had reported the object stolen:

He pays double payment. If he admitted on his own, he pays the principal and one-fifth, and a guilt-offering.

In laying out the guardian’s punishment, the Gemara distinguishes between two false excuses (lost or stolen) and between two situations where the truth is revealed (witness testimony or an admission of guilt). When comparing these punishments, it makes sense that the punishment is greater if the guardian claims the object was stolen instead of lost, presumably because in so doing he casts suspicion on someone else who is innocent of the crime. And the Gemara will go on to discuss the biblical sources for the various punishments (one-fifth and double) and what these sources can teach us about the nature of the double payment. 

But curiously, in both cases, the guardian’s fine is also greater if he comes clean on his own without the pressure of witnesses. Though the Gemara today does not explicitly cite it, the medieval commentator Rashi notes that underlying this particular distinction is Leviticus 5:21-24, which reads: 

When a person sins and commits a trespass against the LORD —by dealing deceitfully with another in the matter of a deposit or a pledge … if one swears falsely regarding any one of the various things that someone may do and sin thereby — when one has thus sinned and, realizing guilt, would restore … that person shall repay the principal amount and add a fifth part to it. One shall pay it to its owner upon realizing guilt. Then that person shall bring to the priest, as a penalty to the LORD, a ram without blemish from the flock, or the equivalent, as a guilt offering.

Leviticus only obligates the sinner to pay the one-fifth penalty and offer a guilt-offering if they themselves realize that they have done the wrong thing. And so perhaps the Talmud, though never explicitly noting it, follows in Leviticus’s path. 

But this approach remains strange. The rabbis might have turned to a different biblical verse and arrived at a different conclusion, but they didn’t. And the various medieval commentaries that appear in the margins of the daf do not address this disparity either. 

How then are we to understand what is going on? Is this a situation which demonstrates that sometimes a commitment to a literal reading of the Bible actually disincentivizes people to admit their own wrongdoing? Or is this a case where one who knows that they are guilty is given specific acts of repair, beyond just returning the value of what was lost, in order to alleviate their feelings of guilt and return them to right relationship with their community? To be honest, I just don’t know.

Read all of Bava Kamma 63 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 4th, 2024. If you are interested in receiving the newsletter, sign up here.

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