Talmud sobre Exodo 22:6

MISHNAH: The following are recited in the vernacular: The verses of the suspect wife¹The verses the Cohen has to read to the wife before she drinks. While the scroll has to be written in Hebrew, the wife has to understand them and, therefore, they have to be translated into her vernacular., and the declaration of tithes²Deut. 26:12–16., and the recitation of the Šema‘³Cf. Berakhot, Chapters 1–2., and prayer⁴The eighteen (respectively 7 or 9) benedictions of the ‘Amidah; cf. Berakhot, Chapters 1–2., and grace⁵After a meal., and the oath of a witness⁶If somebody puts an oath on a possible witness that he should come and testify for him; Lev. 5:1. Testimony itself is given without an oath., and the oath about a deposit⁷Ex. 22:6–12..

MISHNAH: If one deposited an animal or vessels with another¹Without paying for the service. The paid trustee has to pay except for an act of God or armed robbery. and they were stolen or lost: If the other paid and did not want to swear²Since he avoids all oaths because of religious scruples. although they said that the unpaid trustee swears and is absolved³Mishnah 7:8, based on Ex. 22:6–8. He has to swear (1) that the object deposited is not in his possession and (2) that he was not negligent., in case the thief was found, he pays double restitution⁴Ex. 22:6.; if he slaughtered or sold it, he pays quadruple or quintuple restitution⁵Ex. 21:37.. To whom does he pay? To the person with whom it was deposited⁶Who had acquired the right to the deposited object by paying for it..
If the other had sworn and did not pay, in case the thief was found, he pays double restitution; if he slaughtered or sold it, he pays quadruple or quintuple restitution. To whom does he pay? To the owner of the deposit.

The argument of the House of Hillel seems inverted. If a person give to his neighbor,¹¹Ex.22:6. etc. If to teach that the court will not act on less than a peruṭah’s worth, is it not already written, to incur liability for it? To exclude anything not worth a peruṭah. From here, that it should be more than silver. And what is more than silver? Two oboloi. But maybe “silver” is a peruṭah, more than silver two peruṭot. The smallest silver coin is an obolos. So why is it not an obolos? Or vessels; since vessels are two, also “money” is two. How do the House of Shammai interpret or vessels? Following what Rebbi Nathan stated, or vessels, including clay vessels¹²Cf. Qiddušin1:1 Note 96 for the arguments which show that this reading is impossible.. Samuel said, if he claimed from him two needles and he admitted to one, he is liable. Rebbi Ḥinena said, only if they are worth two peruṭot, that the claim should be about a peruṭah’s worth and the confession about a peruṭah’s worth¹³Quoted in Tosaphot39b, s.v. מה.. This follows the House of Shammai who do not learn money’s worth from “vessels”. But following the House of Hillel who learn money’s worth from “vessels”, since vessels are two, also “money” is two. Similarly, since “money” means two oboloi, also “vessels” means two oboloi’s worth.

¹⁵Babli Bava qamma93a. It is written: If a man give to another, etc’, to keep¹⁶Ex. 22:6.. To keep, not to tear it up. To keep, not to throw it away. To keep, not to give it away as a gift. Rebbi Yose said, only if he said to give it to anyone he likes. But if he said, to X, since he is obligated to keep it is as if he kept it for him¹⁷The paragraph gives the rules of the unpaid keeper who in case of loss has to swear that he did not appropriate the article for himself and that it was not lost by his negligence. But if he received the article in order to dispose of it, or to distribute it to the poor, even if it was lost there cannot be any oath. R. Yose points out that this applies only if the charge was to distribute to the poor, not if it was to be delivered to a designated person. Rashi explains in Bava qamma that the depositor cannot sue because he renounced ownership and the poor cannot sue since the keeper was free to give to any poor person of his choice..

It was stated: “It was stolen from the man’s house”¹⁰Ex. 22:6, speaking of the responsibilities of the unpaid trustee. (Different baraitot explaining the verse are in Šebuot 8:1, fol. 38b). The verse ends: If the thief is found he has to make double restitution., but not from the woman’s house¹¹Since this interpretation does not make sense, it is natural to read the verse meaning that the thief stealing from the trustee has to pay double but the thief stealing from the thief does not. In the Babli, Bekhorot 11a, the expression is read to exclude stealing from public property from double restitution.? Is not “his neighbor” only written in respect of the borrower¹²Ex. 22:13. In fact, “his neighbor” is also written for the paid trustee, Ex. 22:9. In all these cases, it is emphasized that one only deals with the principal, not that anything was stolen from a thief. E reads: “Only the borrower is called neighbor.”? But one has to say that “he who steals from a thief does not pay [double restitution, nor does the one who slaughters or sells after a thief pay]¹³This is a quote from the Mishnah, complete only in E. In the Genizah fragment, after the first few words the rest is indicated by “etc.” In the Leiden ms. it is missing; the scribe skipped from תשלומי to תשלומי. quadruple or quintuple restitution. If something was stolen which then was stolen from him; ¹⁴Addtion from E supported by the Genizah fragment. It is again missing in L because the scribe omitted the text between two identical expressions.[when in the end the stolen object was found, to whom does he pay? To the first owner, to the second¹⁵The thief., to both of them¹⁶The answer is given at the end of the paragraph.? If something was stolen which then was stolen from him¹⁵The thief.]; the owners apprehended the second thief who swore to them¹⁷He swore falsely that he did not steal the object from them. If the owners can recover the object from the second thief, he swore falsely and has to bring a reparation sacrifice as described in Lev. 5:1–13. But if the owners can only demand payment of the object’s worth, he did not swear falsely since he did not steal from them.. If you say that one takes it away from the second, he has to bring a sacrifice for the oath. If you say that one does not take it away from the second, he does not have to bring a sacrifice for his oath. If something was stolen which then was stolen from him¹⁵The thief. and the second thief decides to return it¹⁸Who also will confess from whom he took the object., if you say that he has to return it to the owners, they might not inform the first thief¹⁹That he has to pay simple restitution since the object already was returned.. If you say that he has to return it to the first thief, that one might not inform the owners²⁰That he owes them double restitution.. What does he have to do? He returns it to the owners in the presence of the thief.

It was stated: If it was stolen from the man’s house¹⁶Ex. 22:6.. Not from his roof. Rebbi Eleazar said, that means, from an unprotected roof. But a fortified roof is like a house¹⁸Taking anything from a flat roof visible from the outside is not theft but robbery since it was in the open. There can be no double restitution in this case. But if the roof was surrounded by a wall so that nothing deposited there could be seen from the street it is theft and subject to its laws. Keeping a deposit on an open roof is gross negligence on the part of the keeper..

“And the acknowledgment of one peruṭah.” Rebbi Joḥanan said, if somebody claims that another had stolen¹⁸The argument is about Ex. 22:8, the basis of the Mishnah. A deposited something with B. B claims that the item was lost and as unpaid trustee he is not liable for damages. A accuses B of having appropriated the item for himself, i. e., to have stolen it. R. Joḥanan holds that this claim is no different from all other claims adjudicated under the rules of Ex. 22:6–8 and, therefore, an oath can be imposed on B only if the latter acknowledges liability for part of the claim., the latter is not liable unless he partially admit. But all his colleagues¹⁹According to the Babli (Bava qamma106b, bottom) he is R. Ḥiyya bar Joseph, a student of Rav and member of R. Joḥanan’s court. differ from him. How do the colleagues uphold for this is it²⁰Ex. 22:6 reads: About anything criminal, about an ox, about a donkey, about a sheep, about a garment, about anything lost, if he says, for this is it, the suit of them shall come before the Elohim, he whom the Elohim find guilty shall pay double to his neighbor. Elohim means “the powerful;” it can be applied both to God and to judges. From this double meaning it is inferred that judges impose an oath before God on the accused if the latter has acknowledged for this is it, i. e., a partial admission. On the other hand, double restitution is the fine for the thief. Therefore R. Joḥanan is justified in his conclusion that since v.6 declares the entire paragraph to be about deposits, the entire sentence deals with the case of A accusing B of theft of the deposit.? If he claims money from him. If he claims money from him, is that double he shall pay to his neighbor²¹The colleagues agree that a fine can be imposed only for theft, but they hold that the clause for this is it does not apply to deposits but to repayment of loans and debts (Lev. 5:24). They have to take the position that this very long sentence deals with different subjects in different parts and that an oath is due on demand of the claimant for any accusation that a deposit was stolen.? But this is a mixture of paragraphs.

It was stated, if it was stolen from the man’s house¹⁶Ex. 22:6.; not from the borrower’s house. If it was stolen from the man’s house; not from the house of the paid keeper or the renter¹⁹The verse speaks of the unpaid keeper, who swears that he did not take it and that he was not negligent but does not pay. The corresponding cases for the paid keeper and the borrower are not mentioned in the verses. The definite article is interpreted to mean that the verse insists that it was stolen from this man’s house; the rule does not apply to others. By the reason explained later it is clear that the borrower cannot swear; he must pay. There is no intrinsic reason in the verse to exempt the paid keeper and the renter. Why are they exempt? In the Babli Bekhorot11a, the verse is read to exclude institutions; cf. Bava qamma7:1 (5d 46), Notes 10 ff.? Since he is obligated to watch it, it is as if it referred to him²⁰There is a reason to extend the rule of the unpaid keeper to the paid one.; for you may say that there are three paragraphs²¹Ex. 22:6–8, 9–11, 13–14. A similar statement in the Babli, Bava meṣi`a94b.. The last one about the borrower, the middle one about the paid keeper and the renter, the first one about the unpaid keeper. The borrower who profits from all pays everything. The paid keeper or the renter, because he profits partially and gives partial profit, swears about part and pays part. The unpaid keeper who does not profit at all swears and leaves. What does he swear? I did not commit anything²²He did not take anything for his personal use and was not criminally negligent.. What is the situation if others know that he did not commit anything? Let us hear from the following: If the thief was found but has nothing with which to pay, may he say to him²³The owner of an object stolen from an unpaid keeper. If he cannot recoup his loss he might be tempted to let the keeper swear in the hope that he might prefer to pay rather than swear., swear to me that you were not thinking to take it? Let us hear from the following: If the thief was not found²⁴Ex. 22:7. If the thief was found, the unpaid keeper is absolved from any oath. Mekhilta dR. Ismael Neziqin15.. Therefore, it he was found he is not liable.

How do we hold? If she⁸¹The female Hebrew slave who when she becomes an adult either is a wife or a free adult; cf. Note 75. The Babli (Giṭṭin 65a) restricts the female Hebrew slave to redeeming heave of produce not grown in the soil (in a flower pot without a hole). This answer is very questionable for many reasons. is an adult, she acquired [her freedom] by the signs [of puberty]⁸²It is argued (Mekhilta Mišpaṭim3) that the verse (Ex. 21:7) which gave the father the right to sell his daughter also restricted her servitude to the period in which the father had this right, before she became an adult.; if she is a minor, may a minor acquire? Rebbi Yudan bar Shalom said before Rebbi Yose, explain it following him who said, a minor may give heave⁸³Cf. Terumot 1:1, Notes 56–58.. He said to him, even following him who said, a minor may give heave, may a minor acquire? Following the opinion of the rabbis there⁸⁴In Babylonia. it is acceptable since there, they say in the name of Rav Naḥman bar Jacob: One to whom one gives a nut and he throws it away, a pebble and he keeps it, what is found in his hand is as if found on a garbage heap; a nut and he keeps it, a pebble and he throws it away, what is robbed from him is robbed because of communal peace; a nut or a pebble he takes, hides them, and produces them later, what is robbed from him is total robbery. He can acquire for himself but not for others⁸⁵In the Babli, Giṭṭin 65a, the formulation (by Rava, student of Rav Naḥman) is: “There are three stages for minors. If he throws away a pebble and takes a nut, he can acquire for himself but not for others; for school children, their buying is buying and their selling selling, for movables; if they reached the time of vows (cf. Terumot, Mishnah 1:3, Note 105) their vows and dedications are valid; but to sell inherited real estate {without permission of the court} one must be 20 years old.”. Rav Huna said, just as he can acquire for himself so he can acquire for others. Everybody agrees⁸⁶The Babli, Baba Qama 106b, concurs. that his gift is not a gift since it is written (Ex. 22:6): “If a man give.” The gift of a man is a gift, but the gift of a minor is no gift, the words of the Sages. Rebbi Jehudah bar Pazi in the name of Rebbi Joḥanan, Rebbi Jacob bar Aḥa in the name of Rebbi Joḥanan, robbing from him is not total robbery unless he grew two pubic hairs. Rebbi Abbahu in the name of Rebbi Joḥanan, that is, to recover from him by a law suit, but to have to bring a sacrifice for [a false] oath only if he grew two pubic hairs⁸⁷The minor, or an adult representing him, can successfully prosecute the robber from a minor in court but if in the course of the proceedings the accused swears falsely that he did not take anything, he is not obliged to bring (or, if he has a guilty conscience, he is barred from bringing) a guilt sacrifice since his robbery was forbidden by police law, not biblical law.. But following the rabbis here, Rebbi Yose asked that even for himself he should not be able to acquire since it is written (Ex. 22:6): “To his neighbor”, until he be like his neighbor. Rebbi Yose ben Rebbi Abun in the name of Samuel ben Rav Isaac explained it by the method of small children. As we have stated there⁸⁸Mishnah Giṭṭin 5:9. The quote here shows that ה and א were both silent.: “For school children, their buying is buying and their selling selling, for movables.” But did we not state⁸⁹Mishnah Eruvin 7:6. In order to turn a dead-end street into a private domain for the purpose of carrying on the Sabbath, one has to affix to it a symbolic gate and then all residents of the dead-end street have to contribute to the food for a common meal. It is acceptable that one person designate the food, e. g., a wine barrel, and then appoints somebody to acquire for the other dwellers their part for this Sabbath. The qualifications in that Mishnah are the same as in the Mishnah here, with the same questions about the qualifications of the female Hebrew slave. {Since the devices of participation and eruv are ascribed to King Solomon, the mention of the Hebrew slave can be justified in that case.}: “He cannot make them acquire through his minor son or daughter or his Canaanite male or female slave, because their hand is like his hand.” The rabbis of Caesarea say, here a minor with knowledge⁹⁰It seems that a “minor with knowledge” is a minor who reached the time of vows, cf. Tosaphot Sanhedrin68b, s. v. קטן., there a minor without knowledge.

MISHNAH: He who sets a fire which consumes wood, or stones, or dust, is liable since it is said: “If fire gets out of control and finds thorns, etc.”⁸⁰Ex. 22:5. The Halakhah will explain the proof from the verse. If it crossed a wall four cubits high⁸¹A stone or brick wall which will not burn., or a public road⁸²At least 16 cubits wide (Halakhah 6, Mishnah Bava batra 6:7)., or a brook⁸³At least 8 cubits wide (Halakhah 6)., he is not liable.

HALAKHAH: “One does not swear on the claim of a deaf-and-dumb person, an insane person, or a minor,” etc. It is written: If a man give to his neighbor⁸¹Ex. 22:6., to exclude the minor⁸²Since a minor is not able to act in law, anything the minor may give does not leave his guardian’s power. Since a minor cannot legally give a deposit, he cannot reclaim it nor ask for an oath in connection with such a deposit. The Yerushalmi Ma`aser šeni4:4 (Note 67, Eruvin7:6) finds this in the first words of v. 6, if a man give. Babli 42a; Mekhilta dR. Simeon ben Ioḥai22:6.. So far if a minor gave to him and the minor requested from him. If he gave it as a minor and requested it as an adult? The verse says, his neighbor; only if giving and requesting are equal⁸³If the giving is legal, the request for an oath is legal; this excludes the giving of a deposit by a minor, which is not legal. The Babli (Bava qamma106b) and the Mekhilta derive this from v. 8, before the judges shall come their mutual affair; the oath is possible only if both parties have the same standing.. Rebbi Abba bar Mamal said, is that not obvious by what Rebbi Joḥanan said, one who claims a claim of theft in respect of his neighbor’s lost object is liable? “Where is my lost object?” He told him, it was stolen⁸⁴Halakhah 8:7; Babli Bava qamma106b. A lost an object with enough unique features that the finder would have been required to publicly ask for its owner to come and reclaim it. B found the object. A has witnesses who saw B taking the object. When A comes to ask B, the latter claims that it was stolen. Since Ex. 22:8 lists lost objects as subjects of judicial oaths, it is clear that B has to swear upon A’s request even though A never handed the object to B. This excludes an interpretation like that given in Note 83. (Babli Yoma79b, Yebamot48b, Soṭah8a, Zevaḥim17a,90a,94b, Menaḥot69b, Keritut3b).. Rebbi Abba said, explain it if he told him, you already asked me when you were underage and I was freed from swearing for you⁸⁵An adult can ask for an oath regarding a deposit which he made underage only if the respondent does not claim that he already asked for the deposit back when he was still underage and unable to force an oath.. An oath of the Eternal shall be between both of them⁸⁶Ex. 22:10., to exclude the heir⁸⁷Only the original parties have enough knowledge of the transaction to be able to swear. Heirs can only swear rabbinic oaths, to state that their father did not inform them that the claims were moot or similar formulations. Mekhilta dR. Ismael Mišpaṭim16.. Rebbi Illa in the name of Rebbi Yasa: The baraita is about the heir⁸⁸The baraita explaining the verse between them is directed also to the heirs. Since normally only the defendant has to swear, the expression between them is interpreted as biblical endorsement of the rule that if the defendant is disqualified as a witness he also is disqualified from swearing; in that case the claimant has to swear that he is entitled to the money. Heirs, who cannot swear in cases of claims against the father’s estate, can as claimants force oaths of debtors to the estate. Babli 47b..

Where do we hold⁷⁵From here to the end of the discussion of Mishnah 6 the text is from Ma`aser Šeni 4:4, Notes 80–97.
The problem is that the Mishnah enables a Hebrew slave girl to act as an agent. But a Hebrew woman can only be sold into slavery by her father (Ex. 21:7–11) while she is in his power and only for as long as she would be in his power. This means that when she is legally an adult she either is the wife of the man who bought her or she is a free woman. The inclusion of the female Hebrew slave seems to be inappropriate since the Mishnah explicitly excludes the owner’s own minor children.? If she is an adult, she becomes free by the signs [of puberty]. If she is underage, may an underage person transfer rights? Rebbi Yudan bar Shalom said before Rebbi Yose: Explain it following him who said that a minor may give heave⁷⁶The status of a minor in matters of heave and tithes is a matter of dispute, Terumot 1:1 Notes 56–59.. He answered him, but even according to him who says that a minor cannot give heave, the minor can acquire rights. ⁷⁷The remainder of this paragraph also is in Giṭtin 5:9 Notes 234–238. This is acceptable following the opinion of the rabbis there. There, they are saying in the name of Rav Naḥman bar Jacob: One to whom one gives a nut and he throws it away, a pebble and he keeps it, what one finds in his hand is as if found on a garbage heap; a nut and he keeps it, a pebble and he throws it away, what one robs from him is robbery because of the ways of peace; a nut or a pebble and he takes, hides them, and produces them later, what is robbed from him is total robbery. He can acquire for himself but not for others. Rav Huna said, just as he can acquire for himself so he can acquire for others. Everybody agrees that his gift is not a gift, since it is written⁷⁸Ex. 22:6., if a man give, a man’s gift is a gift, the gift of a minor is no gift, the words of the Sages. Rebbi Jehudah ben Pazi in the name of Rebbi Joḥanan, Rebbi Jacob [bar Aḥa]⁷⁹Added from the parallels; missing here but necessary. in the name of Rebbi Joḥanan: Robbing from him is never clear robbery⁸⁰Robbing a minor may be prosecutable under police law, not under biblical criminal law. unless he grew two pubic hairs. Rebbi Abbahu in the name of Rebbi Joḥanan: That which you say is to make one pay by a law suit; but to have to bring a sacrifice for a [false] oath everybody agrees only after he grew two pubic hairs⁸¹A minor might be able to bring a suit to recover what was taken from him but since he is not subject to criminal law in case of perjury he may not atone by a sacrifice.. But following to the rabbis here, Rebbi Yose asked that even for himself he should not be able to acquire since it is written⁷⁸Ex. 22:6. to his neighbor, only if he be like his neighbor. Rebbi Yose ben Rebbi Abun in the name of Rebbi Samuel ben Rav Isaac: They came to it by the rules of school children as we have stated⁸²Mishnah Giṭtin 5:9.: “School children’s buying is buying and their selling is selling, for movables.” But did we not state: “But he cannot transfer rights through his minor son or daughter or his Canaanite¹²All slaves that could be held during the Second Commonwealth and later, cf. Qiddušin 1:3. These and minor children have no independent legal standing and no property separate from that of their owner or father; therefore giving to them is like giving to oneself, without legal consequences. male or female slave because their hand is like his hand.” The rabbis of Caesarea say, here a minor with knowledge⁸³A minor whose vows may be valid., there a minor without knowledge.