Bava Kamma - Daf 70
- Writing an אורכתא (power of attorney) for מטלטלין
The scholars of Nehardea said: לא כתבינן אורכתא אמטלטלי – we do not write a power of attorney for movable items (held by a third party). This is based on Rebbe Yochanan’s principle, that an owner cannot transfer items which are not in his possession. In another version, they said an אורכתא cannot be written where the defendant has denied the claim, because it is מיחזי כשיקרא – appears like falsehood, but ordinarily an אורכתא may be written. The אורכתא must include the words: "זיל דון וזכי ואפיק לנפשך" – go, sue him in court, win the case and acquire the proceeds for yourself, because unless the appointee is granted ownership of the funds, the defendant may say, "לאו בעל דברים דידי את" – you are not my litigant. Abaye says writing this about a portion of the funds is sufficient. Ameimar says that if the agent seizes the proceeds for himself, he may keep them (since he was granted ownership). Rav Ashi disagrees, because the language of the אורכתא indicates that he was appointed a שליח, but was not granted permanent ownership of the funds. In another version, Rav Ashi says the agent was made a partner in the funds, and he could seize half.
- חצי דבר re: testimony of stealing and subsequent selling/shechting
The next Mishnah states: גנב ע"פ שנים – If one stole an animal according to the testimony of two witnesses, וטבח ומכר על פיהם או על פי שנים אחרים – and he shechted or sold it according to their testimony, or the testimony of two other witnesses, he pays ד' וה'. This seems to disagree with Rebbe Akiva: a Baraisa teaches that where three separate pairs of witnesses each testify that a new occupant used a property for a different year, the testimonies are combined, and the occupant is presumed the owner. Rebbe Akiva disagreed, because the Torah says: "דבר" – witnesses establish “a matter,” ולא חצי דבר – but not half a matter. A testimony which cannot stand alone is unacceptable. How, then, could separate witnesses testify to shechitah, which is ineffective without testimony of the theft?
Abaye answers: Rebbe Akiva agrees that testimony about adultery is accepted, although other witnesses testify to her marriage. This proves that although the witnesses to adultery are ineffective alone, the testimony of her marriage is a “complete matter,” so the second testimony is also accepted. Here, too, the testimony of theft is a “complete matter,” so the testimony of shechitah is also acceptable.
- A sale effectuated through chillul Shabbos (עקוץ תאינה מתאינתי, זרוק גניבותיך לחצירי)
The Mishnah taught that if one stole an animal and sold it on Shabbos, he pays ד' וה'. A Baraisa says he is exempt, and Rami bar Chama explains this is where the buyer told the thief: עקוץ (לך) תאינה מתאינתי – cut off (for yourself) a fig from my fig tree, ותיקני לי גניבותיך – and your stolen item shall thereby be acquired by me. Since the thief effects the sale through a Shabbos violation (detaching a fig), he is exempt from ד' וה', because of קים ליה בדרבה מיניה. The Gemara asks, since the buyer cannot demand compensation for the fig (which was taken through chillul Shabbos), the sale is ineffective, and he does not acquire the stolen animal!? Rav Pappa instead answers that the buyer said: זרוק גניבותיך לחצרי ותיקני לי גניבותיך – throw your stolen item into my chatzeir (violating Shabbos), and your stolen item will thereby be acquired by me. Rava answers that the sale is effective like Rami bar Chama’s case of cutting the fig, even though the buyer cannot sue for his purchase in court: אתנן אסרה תורה ואפילו בא על אמו – the Torah forbade a harlot’s wages (for a korban), even if one had relations with his harlot mother. Although she could not demand her wages (since the relations carry the death penalty), if they are paid, they are still considered “wages.”
