Bava Kamma - Daf 63
- Source to obligate כפל for all stolen items: כל ריבויא הוא
The Gemara asks for the source of the Mishnah’s ruling that כפל is paid for any stolen item. A Baraisa derives from a כלל ופרט וכלל to include most items, but the Gemara asks that it should not include birds, or at least non-kosher birds (which do not convey any tumah, in contrast to the examples of the passuk). Therefore, the Gemara concludes: "כל" ריבויא הוא – the word “any” (in על "כל" דבר פשע) is an inclusionary term which teaches to include all items, even inanimate ones, in the law of כפל.
The Gemara asks, since "כל" includes all items in כפל (without a כלל ופרט וכלל), why are the various examples (an ox, sheep, donkey, and garment) written in the passuk? The Gemara answers that the first three exclude קרקע – land (which is unmovable), עבדים – slaves (which are compared to land), and שטרות – documents (which lack intrinsic value) from the law of כפל. The “garment” example excludes דבר שאינו מסויים – an item without identifying marks.
- A שומר who falsely claims the item was lost, or stolen
A Mishnah is quoted about one who confronts a שומר חנם, asking for his item, and the שומר says: אבד – it was lost, and the owner then demanded he swear to his claim, and the שומר said, “Amen.” If witnesses testify that the שומר lied, and he himself ate it, he pays only the principal of the item. If he admitted on his own that he lied, משלם קרן וחומש ואשם – he pays the principal and an additional one-fifth, and he brings an asham [korban] for swearing falsely (this korban and additional payment are only for one who admits to swearing falsely). However, if the שומר said: נגנב – it was stolen from me, and agreed to swear to that effect, and then witnesses testify that he stole it himself, משלם תשלומי כפל – he must pay the double payment (this is the rule that טוען טענת גנב pays כפל). If he admitted that he lied, he pays the principal and an extra fifth, and brings an asham. He does not pay כפל, which is a קנס, and is never paid on the basis of an admission.
- The source for כפל for a טוען טענת גנב, and only after a שבועה
The Gemara asks for the source of the above laws. Two Baraisos are quoted which both assume that the passuk "אם לא ימצא הגנב" – “if the thief is not found…he shall pay twofold to his fellow,” is referring to a שומר who claims the item was stolen from him. Rava explains how the passuk is interpreted: אם לא ימצא כמה שאמר – If it will not be found as he said, that it was stolen, אלא שהוא עצמו גנבו – rather, he himself stole it, ישלם שנים – he pays twofold. A Baraisa derives that this is only where the שומר swore like his claim: the passuk says ונקרב בעל הבית אל האלהים – and the homeowner (i.e., the שומר) shall approach the court, this means לשבועה – to take an oath. This is based on a gezeirah shavah (יד יד).
The Gemara proceeds to explain the source that a שומר who claims the item was lost does not pay כפל.
