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Bava Kamma 70

Exemptions and contradictions.

On today’s daf, we read a mishnah that teaches:

If one stole an animal and sold it on Shabbat … one pays the fourfold or fivefold payment. 

According to the rabbis, when a person commits a capital offense that also carries a fine, the rabbis exempt them from paying it. Paying for a crime with one’s life, say the rabbis, is punishment enough. (As we’ll learn in Tractate Sanhedrin, the rabbis were uncomfortable with the notion that offenders could be put to death by human courts and did what they could to eliminate the use of the death penalty.)

Selling an animal is a violation of Shabbat, but it is not a capital offense. Therefore, in this case, the perpetrator is required to pay the fine that is attached to the theft. Had they slaughtered the stolen animal on Shabbat instead of selling, they would be exempt from paying the fine as it is a capital offense to slaughter an animal on Shabbat.

But wait, says the Gemara, we have another source that disagrees:

Isn’t it taught in a beraita that in this case the thief is exempt from the fourfold or fivefold payment?

The mishnah requires a thief to pay a fine when they steal an animal and then sell it on Shabbat, but a beraita exempts them. So which is it? You might think that in an instance like this where we have two sources with diametrically opposed positions, the Gemara will ultimately select one over the other, but instead the Gemara takes another oft-used solution by suggesting that they apply to separate, more narrowly-defined situations. The mishnah, says the Gemara, is talking about a case of theft and sale that does not involve a capital offense and the beraita involves one in which there is. 

But while engaging in a sale on Shabbat is forbidden, it doesn’t carry the death penalty, so what is the beraita talking about? The Gemara offers a few possibilities:

Rami bar Hama said: When it is taught in that beraita that he is exempt, this is referring to a case where the purchaser says to the thief: Pick off a fig for yourself from my fig tree on Shabbat, and through performing this act your stolen animal shall be acquired by me.

Rav Pappa said: The beraita is discussing a case where the purchaser said to the thief: Throw your stolen animal from the public domain into my enclosed courtyard, and your stolen animal will thereby be acquired by me.

In both of these cases, the way in which the thief sells the stolen animal causes them to violate one of the 39 categories of labor that are prohibited on Shabbat (reaping or transferring an object from one domain to another, respectively). Doing so subjects them to the death penalty, and therefore relieves them of the burden of paying the fine.

This is a common way the Gemara solves contradictions between tannaitic sources, but it can feel forced. How do we know that the beraita was really talking about these cases? 

The truth is that there is no way for us to know for sure. The Gemara does not quote the full text of the beraita nor give us any information about the original context in which it appears. 

It’s possible that the Gemara is accurately reporting the original meaning of the beraita which explains why it contradicts the mishnah. It’s also possible — and in my mind, far more likely — that we are dealing with a situation where there were two separate traditions, a beraita and a mishnah, that contradicted one another. This made later rabbis uncomfortable, and so while they ask, “Isn’t it taught in a beraita that the thief is exempt?” it seems to me that the Gemara’s real question is: “How can we explain the beraita so that it doesn’t contradict the mishnah?” Rami bar Hama and Rav Pappa, both experts in Jewish law and talmudic logic, come up with possibilities that do just that.

Read all of Bava Kamma 70 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 11th, 2024. If you are interested in receiving the newsletter, sign up here.

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