Bava Kamma - Daf 108

• If it is the ממון or שבועה which obligates כפל that exempts from חומש

A Baraisa above (Daf 106a) taught that where a שומר is טוען טענת גנב and pays כפל, he does not also pay a חומש for admitting. Rami bar Chama asked: ממון המחייבו כפל פוטרו מן החומש – is it the money which obligates him in כפל that exempts him from the חומש, או דלמא שבועה המחייבתו כפל פוטרתו מן החומש – or is it the שבועה which obligates him in כפל that exempts him from the חומש? Can both payments not be obligated by the same money, or by the same שבועה? A practical difference emerges where he swore it was stolen, then swore it was lost. Witnesses contradicted his first claim, and he admitted to lying about the second. Here, both payments would come from the same money, but different שבועות.

Rava brought a Baraisa about one who swore to deny stealing an ox. The Baraisa implies that if he confessed to his theft after witnesses testified (so he must pay כפל), he would not pay a חומש, even though the כפל was not obligated by the שבועה, but by the witnesses!? This proves that the money which obligates כפל cannot obligate a חומש. Additional inquiries are posed to further define this principle.

• If a שומר who voluntarily paid after swearing about a theft becomes entitled to the כפל

The Gemara asks: תבעוהו בעלים לשומר – If the owner sued the שומר to return his פקדון, ונשבע ושילם – and he swore that it was stolen, exempting himself, and then paid for it voluntarily, והוכר הגנב – and the thief was later identified, כפל למי – to whom is the כפל paid? The Mishnah in Bava Metzia teaches that where a שומר volunteered to pay without swearing, the owner agrees to transfer the right to כפל to the שומר. Who receives the כפל where he first swore? Abaye says: לבעל הפקדון – It is paid to the owner of the deposit, כיון דאטרחיה בשבועה – for since he troubled [the owner] with a שבועה, לא מקני ליה כפילא – [the owner] does not transfer the כפל payment to him. Rava says: למי שהפקדון אצלו – It is paid to the one in whose possession the פקדון was (i.e., the שומר), כיון דשילם – for since he eventually paid for the פקדון, מקני ליה כפילא – [the owner] transfers the כפל payment to him. The Gemara explains how each position is inferred from the Mishnah in Bava Metzia.

• If a thief’s confession to the owner or שומר exempts him from כפל

The Gemara discusses a שומר who swore the פקדון was stolen, and the thief was discovered, תבעו שומר והודה – then the שומר sued [the thief] to return it and he admitted to his theft, תבעוהו בעלים וכפר – then the owner sued him, and he denied the theft, and witnesses later testified to the theft. Is the thief exempt from כפל through his confession to the שומר, or did the שומר’s role end when he swore, so the admission was not to a litigant? Rava answered: אם באמת נשבע – If he swore truthfully (that it was stolen not due to negligence), נפטר הגנב בהודאת שומר – the thief is exempted from כפל through his confession to the שומר, because the owner wants him to continue watching it. He is therefore responsible to retrieve the פקדון, and is thus a litigant. If he swore falsely (e.g., that it was stolen through an אונס, and in truth it was not), the thief is not exempt by confessing to the שומר, because he is no longer a litigant. The Gemara also inquires about the inverse case, where the שומר paid instead of swearing (so he receives the כפל), and the thief later admitted to the owner, but denied to the שומר. This is left unresolved.