Bava Kamma - Daf 79
משיכה was instituted for שומרים
Ameimar asked: תיקנו משיכה בשומרים או לא – Did [the Sages] institute משיכה for acquiring regarding שומרים or not? Regarding purchases, they instituted that one does not acquire the item until performing משיכה, out of concern that if only money effected the kinyan, the seller would not save the item in his reshus in the event of a fire. Do we say that a שומר, too, does not assume responsibility for the item before doing משיכה, or is he liable as soon as he agrees to watch it? Rav Yeimar brought a proof from the Mishnah, which states that if he gave the animal to a Kohen for the redemption of his firstborn son, or to his creditor, or under the care of one of the four types of שומרים, היה מושכו ויוצא ומת ברשות הבעלים פטור – if he was in the process of pulling it out of the owner’s domain, and it died while still in the owner’s domain, he is exempt. Rav Yeimar assumes this refers to the שומר pulling the animal out at the thief’s behest, and the Mishnah teaches that before the שומר pulls the animal out of the owner’s domain, the thief is not liable, but after he pulls it out, he is liable. This proves that משיכה was instituted for שומרים. Although Ameimar attempted to explain the Mishnah differently, Rav Ashi rejects his explanation. A Baraisa supports Rav Yeimar’s conclusion.
The definition of a גנב and גזלן, and why the Torah was stricter for a גנב than a גזלן
Rebbe Abahu defines a גזלן (a robber who steals openly) as someone like Benayahu ben Yehoyada, about whom it says: ויגזל את החנית מיד המצרי ויהרגהו בחניתו – and he robbed the spear from the Egyptian’s hand and killed him with it. Rebbe Yochanan says it is like the inhabitants of Shechem, who are described as lying in ambush and robbing wayfarers. Rebbe Abahu does not consider them גזלנים because they lie in hiding, but Rebbe Yochanan says they hide so people should not flee from them. Rebbe Yochanan ben Zakkai explained why the Torah was more strict with a גנב (to pay כפל and ד' וה'): זה השוה כבוד עבד לכבוד קונו – this [גזלן] equated the servant’s honor to his master’s honor (by fearing no one), וזה לא השוה כבוד עבד לכבוד קונו – and this [גנב] did not equate the servant’s honor with his master’s honor (by being afraid of men, but not of Hashem). Rabban Gamliel compared it with two people who made a feast, one who invited the townsfolk but not the king’s sons, and the other who invited neither. The punishment of the former, who gave more respect to the townsfolk, is greater.
Why a גנב pays fivefold for an ox and fourfold for a sheep
Tannaim explain why one pays fivefold for stealing and shechting (or selling) an ox, but only fourfold for a sheep. Rebbe Meir said: בא וראה כמה גדול כח של מלאכה – Come and see how great is the power of labor! שור שביטלו ממלאכתו חמשה – For stealing an ox, whereby he caused [the owner] to desist from labor (with the ox), he pays fivefold. שה שלא ביטלו ממלאכתו ארבעה – But for a sheep, whereby he did not cause him to desist from any labor, he pays only fourfold. Rebbe Yochanan ben Zakkai said: בא וראה כמה גדול כבוד הבריות – Come and see how great is human dignity! שור שהלך ברגליו חמשה – For an ox, which walked with the thief on its own feet, he pays fivefold. שה שהרכיבו על כתיפו ארבעה – But for a sheep, which he carried on his shoulders (humiliating himself), he pays only fourfold.
