דף 62

MISHNA: In the case of a spark that emerged from under the hammer of a blacksmith and started a fire, causing damage, the blacksmith is liable for the damage caused.

In the case of a camel that was laden with flax and was passing through the public domain, and its flax extended into a store and the flax caught fire from a lamp in the store belonging to the storekeeper, and as a result of the burning flax the camel set fire to the building together with all its contents, the owner of the camel is liable. But if the storekeeper placed his lamp outside, thereby causing the flax on the camel to catch fire, and consequently the building was set on fire, the storekeeper is liable. Rabbi Yehuda says: In a case where the lamp placed outside was a Hanukkah lamp, the storekeeper is exempt, since it is a mitzva for a Hanukkah lamp to be placed outside.

GEMARA: Ravina said in the name of Rava: Conclude from Rabbi Yehuda’s statement that the mitzva is to place the Hanukkah lamp within a height of ten handbreadths from the ground as, if it enters your mind to say that the mitzva can also be fulfilled by placing it above ten handbreadths, why did Rabbi Yehuda say that in the case of a Hanukkah lamp placed outside, the storekeeper is exempt? Let the owner of the camel say to the storekeeper: You should have placed the lamp above the height of a camel and its rider so that the flax would not catch fire. Rather, must one not conclude from here that Rabbi Yehuda’s opinion is that the mitzva is to place it within ten handbreadths of the ground and not higher?

The Sages say in response: No, there is no proof from here. Actually, I could say to you that one may place a Hanukkah lamp even above a height of ten handbreadths, and as for what you said, that the owner of the camel can claim: You should have placed the lamp above the height of a camel and its rider, in response to this one can say: Since the store owner is performing a mitzva by placing his Hanukkah lamp outside, the Sages did not trouble him to such an extent to have him place his lamp at a height that would be inconvenient for him to reach.

Further on the subject of the height of a Hanukkah lamp, Rav Kahana says that Rav Natan bar Minyumi taught in the name of Rabbi Tanḥum: A Hanukkah lamp that is placed higher than twenty cubits from the ground is unfit to be used for the mitzva, since people do not generally look up to such a height, and the main purpose of the Hanukkah lamp is for it to be seen by others. In this regard, the halakha of the height of a Hanukkah lamp is like the halakha of the height of a sukka and the halakha of the height of a cross beam at the entrance to an alleyway, which are unfit for their respective purposes if they are higher than twenty cubits.

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MISHNA: The principle of double payment applies more broadly than the principle of fourfold or fivefold payment, as the principle of double payment applies both to the theft of something that is alive and to the theft of something that is not alive, but the principle of fourfold or fivefold payment applies only to the theft of an ox or a sheep, as it is stated: “If a man steal an ox or a sheep, and slaughter it or sell it, he shall pay five oxen for an ox and four sheep for a sheep” (Exodus 21:37).

Having stated a limitation to the halakha of fourfold and fivefold payment, the mishna mentions a further limitation, which applies to all three types of payments. One who steals an item after a thief has already stolen it, i.e., one who steals a stolen item, does not pay the double payment to the thief or to the prior owner, nor does one who slaughters or sells an ox or a sheep after a thief has already stolen it pay the fourfold or fivefold payment. Rather, he pays only the principal, i.e., the value of the item he stole.

GEMARA: The mishna teaches one particular difference between double payment and fourfold or fivefold payment, while it does not teach this difference between them: The principle of double payment applies both in the case of a thief and in the case of a bailee who falsely states the claim that a thief stole the deposit entrusted to him and who takes an oath to that effect. But the principle of fourfold or fivefold payment applies only in the case of a thief, not in the case of one who falsely claims that a deposit was stolen.

The fact that the mishna does not teach the latter distinction supports the opinion of Rabbi Ḥiyya bar Abba, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: In the case of one who falsely states the claim that a thief stole a deposit from him, and it is discovered that he himself is the thief, he pays double payment. And if the stolen item is an ox or sheep and he slaughtered or sold it, he pays the fourfold or fivefold payment. According to Rabbi Ḥiyya bar Abba, there is no difference between the applications of double payment and fourfold or fivefold payment in this case.

There are those who say a different version of this discussion: Let us say that the mishna supports the opinion of Rabbi Ḥiyya bar Abba, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: In the case of one who falsely states the claim that a thief stole a deposit from him, and it is discovered that he himself is the thief, he pays double payment. And if the stolen item is an ox or sheep, and he slaughtered or sold it, he pays the fourfold or fivefold payment.

The Gemara rejects the inference: Does the mishna teach that there is no difference between double payment and fourfold or fivefold payment except for the one mentioned in the mishna? It teaches merely that the principle of double payment applies more broadly than the principle of fourfold or fivefold payment, and it provides an example of this statement. This does not mean that this is the only difference, and it is possible that the tanna taught this one case and omitted others.

§ The mishna teaches that the principle of double payment applies both to the theft of something that is alive and to the theft of something that is not alive. The Gemara asks: From where are these matters derived? It is as the Sages taught in a baraita with regard to the verse that discusses double payment: “For any matter of trespass, whether it be for an ox, for a donkey, for a sheep, for a garment, or for any manner of lost thing about which one shall say: This is it, the claims of both of them shall come before the judges, the one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). “For any matter of trespass” is a generalization; “whether it be for an ox, for a donkey, for a sheep, for a garment” is a detail. And when the verse states: “Or for any manner of lost thing,” it then generalizes again.

Consequently, this verse contains a generalization, and a detail, and a generalization, and one of the thirteen rules of exegesis states that in such a case you may deduce that the verse is referring only to items similar to the detail. Therefore, just as each of the items mentioned in the detail is clearly defined as an item that is movable property and has intrinsic monetary value, so too double payment is practiced with regard to any item that is movable property and has intrinsic monetary value.

Land is excluded, as it is not movable property. Canaanite slaves are excluded, as they are compared to land in many areas of halakha. Financial documents are excluded, as, although they are movable property, they do not have intrinsic monetary value. The value of the material on which the document is written is negligible; documents are valuable only because they serve as proof for monetary claims. Finally, consecrated property is excluded because it is written in the verse that the one found liable shall pay double to “his neighbor,” i.e., to another person, rather than to the Temple treasury.

The Gemara asks: If the halakha of double payment is limited to cases similar to the details mentioned in the verse, it should also be derived that just as each of the items mentioned in the detail is clearly defined as an item whose carcass transmits impurity through contact and carrying, so too any item whose carcass transmits impurity through contact and carrying it is subject to double payment. But birds, whose carcasses do not transmit impurity through contact or carrying, should not be subject to double payment.

The Gemara objects to the question: But how can you say this? But isn’t “garment” written in the list of specified items (Exodus 22:8)? It is impossible to speak of the impurity of carcasses with regard to clothing. The Gemara responds: Say, in response to this objection: We are speaking specifically of animals, and this is the question that was asked: Why not say that with regard to animals, an animal whose carcass transmits impurity through contact and carrying, yes, it is subject to double payment, whereas an animal whose carcass does not transmit impurity through contact and carrying, such as a bird, no, a thief would not pay double payment for stealing it?