In a mishnah on today’s daf we learn:
(If a thief) sold all but one-hundredth of (an animal) … he pays the double payment but does not pay the fourfold or fivefold payment.
When a thief steals an animal and then sells or slaughters it, they pay a fine for the theft (the double payment) and another for the sale or slaughter (the fourfold or fivefold payment). This mishnah teaches us that if the thief sells 99 percent of the stolen animal, keeping the last bit for themselves, they are exempt from paying the latter fine.
If you are wondering what it means to hold one percent of the animal back from sale, you are not alone. The Gemara has the same question and provides two answers:
Rav says: Except for some part that becomes permitted through slaughter.
Levi says: Except for its fleece.
Rav says that the part of the animal that must be excluded from the sale in order to exempt the thief from the additional fine must be a part of the animal that becomes permitted to use only when it is slaughtered, like its meat. Levi disagrees, stating that even if the thief retains ownership of the animal’s fleece, which is permitted regardless of slaughter, the thief is exempt, implying that retaining any part of the animal is sufficient to exempt the thief from the fine.
Rabbi Yirmeya wonders if there are other ways to think about this matter. He asks:
If he sold it except for thirty days. Or except for its work. Or except for its fetus. What is the halakhah?
What if what is being held back is time — that is, the thief sells the animal but retains ownership for a month? Or what if the thief sells the animal itself but retains ownership of the labor that it produces? Or what if the animal is sold except for the fetus growing inside its belly? In all these cases, is the thief exempt from the additional fine? Or do we hold that a complete animal was sold and so the thief should be liable for the extra penalty?
Rabbi Yermiya is famous for asking sharp questions. While this sometimes gets him into trouble, his questions often challenge commonly held assumptions among the rabbis. Today is no exception. While Rav and Levi both suggest that what the thief holds on to is one percent of the animal’s body, Rabbi Yermiya challenges his colleagues to think more broadly. Holding onto the animal’s time and labor might be just as significant, if not more so, than retaining ownership of a fraction of its body.
And a pregnant animal carrying a fetus inside might change the equation altogether. Is the fetus considered part of its mother? Or do we say that even though the thief kept possession of the fetus, since they sold the animal in its entirety they should still be on the hook for the fine?
Following in Rabbi Yermiyah’s footsteps, Rav Papa raises a question of his own:
If one stole an animal, severed (one of its limbs), and then sold it, what is the halakhah?
Is this like selling 99 percent of the animal because it is missing a limb? Or do we consider the three-legged animal to be complete even though one of its appendages has been severed? The Gemara is not sure. Like the questions raised by Rabbi Yermiyah, this remains unresolved.
Putting the mishnah into practice involves conceptualizing what constitutes a complete animal. And as Rabbi Yermiyah and Rav Pappa both point out, doing so is a bit more complicated than we might have first thought.
Read all of Bava Kamma 78 on Sefaria.