Bava Kamma 64

Better admission than conviction.

One of the topics addressed in this chapter of Bava Kamma is fines for theft. In short, if you are found guilty of stealing, in addition to making restitution, you may have to pay additional fines. On today’s daf we read that, according to Rav, there is an exception to this rule:

One who admits to a fine is exempt, even if afterward witnesses come.

If someone’s guilt is based upon their own admission, they still have to pay for what they stole, but they are not subject to an additional fine. Rav bases his opinion on Exodus 22:3, which states: “But if what was stolen — whether ox or ass or sheep — is found alive and in hand, that person shall pay double.”

How, you might be asking, does Rav derive his teaching from a verse that states that if a thief is found in possession of stolen livestock they must pay double the value of the animals? Great question!

Rav derives his ruling from the particular form of the word “found” in the verse. Instead of using a single word, the Torah uses two: himmatze timmatze. The doubling allows Rav to read into the verse two different findings: 

If it is found [himmatze] through witnesses, it will be found [timmatze] by judges. This excludes one who incriminates himself. 

If a thief is “found” guilty based upon witness testimony, then the judges “find” their power to levy a fine. In other words, in order for judges to impose a fine, the thief’s guilt must be determined by witness testimony. But if the thief admits their guilt before any testimony is presented, they do not have to pay the fine. And, by the way, this applies to all cases involving fines, not just those involving stolen animals found alive in a thief’s possession.

While this might seem like a stretch, Rav’s creative reading is well within the bounds of rabbinic midrash, which interprets biblical verses in this manner all the time. But if you want a more straightforward way to get to the same conclusion, the Gemara has an alternative available: Exodus 22:8, which says, “The one whom the judges convict shall pay double to his neighbor.”

Here, the explanation hones in on the specific language of the verse, which does not say that the one who is guilty pays the fine, but the one who is found guilty by a judge. And being found guilty requires a trial which, in turn, requires witness testimony. One who admits their own guilt in advance of a trial is not included in the verse, and so they are exempt from paying a penalty.

(It’s worth pointing out that the Torah’s word for judge here is elohim, which is also a name for God. Translations vary, but translating elohimas judge goes as far back as Onkelos’ ancient translation of the Bible into Aramaic and reflects an understanding that God does not personally render judgment in human courts and/or that judges are appointed to represent God and uphold God’s law.)

Regardless of which midrash you choose to follow, the message is clear: Better to own up to your wrongdoings than to be found guilty of them in court. 

Read all of Bava Kamma 64 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 5th, 2024. If you are interested in receiving the newsletter, sign up here.

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