Bava Kamma 76

Sold to heaven.

For nearly a week, the Talmud’s discussion has been driven by Exodus 21:37: “When a man steals an ox or a sheep and slaughters or sells it, he shall pay five oxen for the ox and four sheep for the sheep.”

mishnah we encountered back on Bava Kamma 74 outlined several specific scenarios in which this penalty is not brought to bear, including this one under discussion today:

If he stole an animal and subsequently consecrated it as an offering and afterward he slaughtered or sold it … the thief pays the double payment, but he does not pay the fourfold or fivefold payment.

Why does the thief who takes the intermediary step of consecrating the animal before slaughtering or selling it escape the full penalty? The Gemara on today’s page ventures an explanation:

The sages say: Granted, he is not liable to pay the fourfold or fivefold payment for the slaughter of the animal, as when he slaughtered it, he slaughtered an animal belonging to the Temple, and he did not slaughter the animal belonging to its owner.

Perhaps, the Gemara suggests, once the animal is consecrated, ownership transfers to the Temple. Therefore, the thief is not slaughtering an animal that belongs to another person, and therefore he only has to pay double for the original theft.

But this doesn’t sit well with the Gemara, which points out:

Let him be liable to pay the fourfold or fivefold payment for having consecrated the animal in the first place, as what difference is it to me if he sold the animal to an ordinary person, and what difference is it to me if he sold it to Heaven by consecrating it?

Maybe, the Gemara suggests, consecrating the animal should trigger the fourfold or fivefold penalty, since consecrating an animal is akin to selling it — to God. If we follow that line of logic, then once the animal is consecrated, the thief has both stolen and sold it, which should render him liable for the full penalty outlined in Exodus.

To this, the Gemara answers that consecration is not the same as sale:

What difference is it to me if he sold the animal to an ordinary person and what difference is it to me if he sold it to Heaven by consecration? One can answer as follows: If Reuven sold an ox to an ordinary person, e.g., Shimon, at the outset it was Reuven’s ox and now, after the sale, it is Shimon’s ox. By contrast, if he sold it to Heaven, at the outset it was Reuven’s ox and now, after consecration, it is still Reuven’s ox.

In other words, consecrating an animal is not really a sale at all. Although the animal that has been consecrated now “belongs” to God in the sense that the owner may not eat it or benefit from it in any way, it still in some sense belongs to its original owner who is responsible for it.

Let’s linger for a moment on this potentially confusing statement about the ownership of consecrated animals. In some sense, the Talmud suggests, they belong to God. But in another sense, they still belong to their original owners. There are many theories about what ancient animal sacrifice meant. One popular one is that sacrifices were gifts that aimed to curry favor with the divine. But today’s discussion raises the possibility of a much more subtle dynamic at play. The animal that is designated for Heaven belongs neither wholly to God nor wholly to the person who consecrates it, but is, in some sense, jointly owned. On this model, sacrifice is not simply a means of extracting goodwill or blessings from God, but rather a means of joining with God in a partnership venture.

Read all of Bava Kamma 76 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 17th, 2024. If you are interested in receiving the newsletter, sign up here.

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