Traité Bava Kamma

Traduction française en préparation — version anglaise (Steinsaltz) : Know that an ordinary case of theft is assumed to result in the owner’s despair of recovering the stolen item. In other words, in the absence of evidence to the contrary, one may assume that the victim of theft has despaired of recovering his item.

Traduction française en préparation — version anglaise (Steinsaltz) : The reason is that the Torah stated that if a thief slaughtered or sold the animal he had stolen, he pays the fourfold or fivefold payment. But why is this so? Perhaps the owner did not yet despair at the time the thief sold the animal, in which case the sale is invalid, and there should be no fourfold or fivefold payment. Rather, is it not because we say that an ordinary case of theft is assumed to result in the owner’s despair of recovering the stolen item? This concludes the statement of Rabbi Elazar, which clearly indicates that there is no fourfold or fivefold payment if the animal is sold before the owner’s despair.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara asks a question with regard to Rabbi Elazar’s assumption: But perhaps the Torah obligates the thief to pay the fourfold or fivefold payment even if the owner has not yet despaired at the time of the sale, despite the fact that the sale is invalid, as Rav Naḥman stated.

Traduction française en préparation — version anglaise (Steinsaltz) : In response to this question the Sages say: This cannot enter your mind, as Rabbi Elazar maintains that the juxtaposition of slaughtering and selling in the verse that states: “And slaughter it or sell it,” teaches that the thief’s sale of the animal is similar to his slaughter of it. Just as slaughter is a matter in which his action was effective, so too, the case of selling the animal is one in which his action was effective, i.e., the sale is valid. And if the sale occurred before the owner’s despair, in what sense were his actions effective?

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara asks another question with regard to Rabbi Elazar’s reasoning: But perhaps the Torah requires the fourfold or fivefold payment only in the specific case where the animal is sold after we heard that the owner despaired of its recovery. The Sages respond to this and say: This cannot enter your mind, since, as explained above, the thief’s sale of the animal must be similar to his slaughter of it. Therefore, just as the thief is liable to pay the fourfold or fivefold payment for slaughtering the animal even if he does so immediately, so too, the halakha that he pays the fourfold or fivefold payment for selling it applies even if he does so immediately, before it is known that the owner has despaired of recovering the animal.

Traduction française en préparation — version anglaise (Steinsaltz) : Rabbi Yoḥanan said to Rabbi Elazar: The case of stealing a human being, i.e., kidnapping, proves that your reasoning is incorrect. The Torah states: “And he who steals a man and sells him or if he is found in his hand, he shall be put to death” (Exodus 21:16). In this case there is no owner’s despair, as no one ever despairs of his own freedom. Consequently, the thief’s sale of the person he kidnapped is invalid, and yet the Torah states that he is liable to receive the death penalty for selling him. One can learn by inference from this question that Rabbi Yoḥanan holds that if the thief sells the stolen animal before the owner’s despair he is liable to pay the fourfold or fivefold payment.

Traduction française en préparation — version anglaise (Steinsaltz) : § The Gemara asks: If the thief sells the animal after the owner’s despair, what is the halakha? Rabbi Yoḥanan says: He is liable. And Reish Lakish says: He is exempt.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara elaborates: Rabbi Yoḥanan says: He is liable, as the thief’s liability applies whether the animal is sold before the owner’s despair or after his despair. Reish Lakish says: He is exempt, as the thief’s liability is in effect only if he sells the animal before the owner’s despair, but after the owner’s despair there is no liability, because the thief has acquired the animal by virtue of the owner’s despair, and therefore it is his own animal that he slaughters or his own animal that he sells.

Traduction française en préparation — version anglaise (Steinsaltz) : Rabbi Yoḥanan raised an objection to the opinion of Reish Lakish from a baraita: If one stole an animal and consecrated it, and subsequently slaughtered it, he pays the double payment to the owner of the animal, but he does not pay the fourfold or fivefold payment. The Torah states: “The one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). The word “neighbor” excludes the case of one who steals a consecrated item from the Temple treasury. Since there is no double payment to the Temple treasury there can be no fourfold or fivefold payment either, as the fourfold or fivefold payment is considered an addition to, not a replacement of, the double payment (see 75a). Therefore, a thief does not pay the fourfold or fivefold payment to the Temple treasury for slaughtering one of its animals.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara analyzes the baraita: When did the events described in the baraita occur? If we say they happened before the owner’s despair, is the animal consecrated at all? A thief cannot consecrate a stolen item before the owner despairs of recovering it, as the Merciful One states in the Torah: “And when a man shall sanctify his house to be holy unto the Lord” (Leviticus 27:14), from which it is derived: Just as one’s house belongs to him, so too, anything that one consecrates must belong to him, and therefore a thief cannot consecrate a stolen item.

Traduction française en préparation — version anglaise (Steinsaltz) : Rather, it is obvious that the baraita is dealing with events that occurred after the owner’s despair. And yet the only reason that he does not pay the fourfold or fivefold payment is that he consecrated the animal, on the grounds that when he slaughtered it he slaughtered consecrated property. But if he did not consecrate the animal before he slaughtered it he would pay the fourfold or fivefold payment. And if it enters your mind that the owner’s despair serves to acquire the animal for the thief, why would he have to pay? At that point it is his own animal that he slaughters or his own animal that he sells.

Traduction française en préparation — version anglaise (Steinsaltz) : Reish Lakish said to Rabbi Yoḥanan: With what are we dealing here? The baraita is referring to a case that occurred before the owner’s despair, and it is not the thief who consecrated the animal, as he cannot do so. Rather, we are dealing with a case where the owner consecrated the animal while it was in the thief’s possession.