Bava Kamma - Daf 106
- Rav: One who swears falsely to deny a claim, then is disproven by witnesses, is exempt from paying
Rav Huna said in Rav’s name: If one says to his fellow: מנה לי בידך – “A maneh of mine is in your possession,” and the defendant denies it and swears, and afterwards witnesses testify against him, he is exempt from paying, because the passuk says: "ולקח בעליו ולא ישלם" – and its owner shall accept it and he shall not pay, which teaches: כיון שקבלו הבעלים שבועה שוב אין משלם ממון – once the owner has accepted a שבועה, [the defendant] no longer pays money. Rava said that although Rav’s ruling is reasonable regarding a loan (which is called “payment”), but not a פקדון, his ruling actually includes even a פקדון, because the above passuk is discussing a פקדון. The Gemara clarifies that this exemption only applies to a שבועה imposed by Beis Din. After several challenges, Rava concludes that whenever the defendant admits to lying, Rav agrees that he pays, since the Torah obligated paying the principal and an additional fifth. Rav also concedes that one who falsely swore the פקדון was stolen must pay, since the Torah obligated paying כפל. Rav’s ruling applies to one who falsely claimed it was lost and was discredited by witnesses.
- A thief who shechts a stolen animal after being found guilty in Beis Din
Rebbe Yochanan taught that a שומר who falsely swore the פקדון was stolen, and then shechted it, pays ד' וה'. He was challenged from a Baraisa which teaches about such a case that if witnesses testified he ate the animal, he pays כפל. Since shechting is required before eating, it seems he does not pay ד' וה' for shechting it!? The Gemara answers that the case is where he ate it without shechitah. Several other answers are discussed, including כגון שעמד בדין – where [the thief] stood for judgment and was found guilty, and was told to go pay. Shechting afterwards would not obligate ד' וה', as Rava taught: צא תן לו – if Beis Din told him, “Go pay him,” טבח ומכר פטור – and he then shechted or sold it, he is exempt from paying ד' וה'. Since Beis Din issued a final verdict, the original theft ended, so if he subsequently shechts it, he becomes a גזלן – robber, who does not pay ד' וה'. If Beis Din merely said, חייב אתה ליתן לו – “You are obligated to pay him,” the verdict is not final, and he would be liable to ד' וה' for shechting it.
- Swearing about a found item vs. a פקדון given by a קטן
Rebbe Yochanan said: הטוען טענת גנב באבידה – One who claims and swears falsely about theft by a thief regarding a lost item which he found, pays כפל. This is challenged from a Baraisa which darshens: "כי יתן איש" – If a man shall give [someone a פקדון], teaching: אין נתינת קטן כלום – a minor’s giving of a פקדון is nothing, i.e., a שומר would not swear about such a פקדון, nor pay כפל for טוען טענת גנב. This applies even if the owner claims it as an adult. But if one pays כפל even for swearing falsely about a found item, which was never “given” to him to watch, then a פקדון given by a קטן should also be liable!? Two answers are given: (1) the Baraisa’s case is where the שומר consumed the item while the owner was still a קטן, and a legal claimant never owned it (as opposed to an אבידה, which was owned by an adult). (2) Rav Ashi says: אבידה קא אתיא מכח בן דעת – a lost item came to the finder’s possession on the strength of a mentally competent person, despite not being “given” by him, as opposed to a פקדון of a קטן.
