3. If a man stole [an ox or a sheep] according to the evidence of two witnesses, and killed or sold it according to their evidence, and they are found to be false witnesses, they must pay the whole penalty.3 If he stole it according to the evidence of two witnesses, and killed or sold it according to the evidence of two others, and both pairs alike are found to be false witnesses, the first witnesses must make twofold restitution, and the second witnesses threefold restitution. If the second [only] were found to be false witnesses, the thief must make twofold restitution4 and they three¬ fold restitution. If one [only] of the second witnesses was found to be a false witness the evidence of the other is made void; if one of the first witnesses was found to be a false witness, the entire evidence is made void, since if there is no [proved case of] theft there is none of killing or selling [what was stolen].
4. If a man stole [an ox or a sheep] according to the evidence of two wit¬ nesses but killed or sold it according to the evidence of one witness only, or according to his own evidence, he makes twofold restitution, but not fourfold or fivefold restitution. If he stole [an ox or a sheep] and killed it on the Sabbath, or stole it and killed it for idolatrous use, or stole what was his father’s and his father died, and he afterward killed or sold it, or if he stole it and then dedicated it, and afterward killed it or sold it, he makes twofold restitution but not fourfold or fivefold restitution. R. Simeon says: If they were Hallowed Things which must be replaced5 [if damaged or lost], he must make fourfold or fivefold restitution; but if Hallowed Things which need not be replaced,6 he is exempt.
5. If he sold it all but a hundredth part, or if he had [already] a share in it, or if he slaughtered it and it became unfit under his hand, or if he pierced [its windpipe] or rooted out [its gullet],7 he makes twofold restitu¬ tion but not fourfold or fivefold restitution. If he stole it in the owner’s domain, but killed or sold it outside the owner’s domain; or if he stole it outside the owner’s domain and killed or sold it within the owner’s domain; or if he stole it and killed or sold it outside the owner’s domain, he must make fourfold or fivefold restitution. But if he stole it and killed or sold it within the owner’s domain, he is exempt.
6. If while he was dragging it out it died in the owner’s domain, he is exempt; but if he had lifted it up8 or taken it outside the owner’s domain and it died, he is liable. If he brought it as the firstborn offering for his son,9 or gave it to his creditor, or to an unpaid guardian, or to a borrower or to a paid guardian or to an hirer, and one of them was dragging it away 1 Thereby rendering it forbidden for food or use. 1 Deut. 19’*; cf. Makk. 1*.
* Since his theft, at least, was proved. * Obligatory and vow-offerings.
* As redemption for his firstborn son (Ex. 131*).
FOURTH DIVISION: NEZIK1N and it died in the owner’s domain, he is exempt. But if he had lifted it up or taken it outside the owner’s domain, he is liable.
7. They may not rear small cattle1 in the Land of Israel, but they may rear them in Syria or in the wildernesses that are in the Land of Israel. They may not rear fowls2 in Jerusalem because of the Hallowed Things nor may priests rear them [anywhere] in the Land of Israel because of [the laws concerning] clean foods. None3 may rear swine anywhere. A man may not rear a dog unless it is kept bound by a chain. They may not set snares for pigeons unless it be thirty nr4 from an inhabited place.
8. 1. If a man wounded his fellow he thereby becomes liable on five counts: for injury, for pain, for healing, for loss of time, and for indignity inflicted. ‘For injury’ — thus, if he blinded his fellow’s eye, cut off his hand, or broke his foot, [his fellow] is looked upon as if he was a slave to be sold5 in the market: they assess how much he was worth and how much he is worth now. ‘For pain’ — thus, if he burnt his fellow with a spit or a nail, even though it was on his finger-nail where it leaves no wound, they estimate how much money such a man would be willing to take to suffer so. ‘For healing’ — thus, if he struck him he is liable to pay the cost of his healing; if by reason of the blow ulcers arise he is liable [for the cost of their healing], but if they did not arise by reason of the blow, he is not liable. If the wound healed and then opened and healed again and again opened, he continues liable for the cost of his healing; but once it is properly healed he is no longer liable to pay the cost of his healing. ‘For loss of time’ — thus, he is looked upon as a watchman of a cucumber-field, since he has already been paid the value of his hand or foot.6 ‘For indignity inflicted’ — all is in ac¬ cordance with [the condition of life of] him that inflicts and him that suffers the indignity.7 If a man inflicted the indignity on a naked man, or a blind man, or a sleeping man, he is [still] liable; but if he that inflicted the indignity was asleep he is not liable. If a man fell from the roof and caused injury and inflicted indignity, he is liable for the injury but not for the indignity, for it is written, And she putteth forth her hand and taketh him by the secrets 8 — a man is liable only when he acts with intention [of causing injury].
2. Herein greater stringency applies to a man than to an ox, since the man must pay for injury, pain, healing, loss of time, and indignity, and make restitution for the value of the young;9 whereas the ox pays only for the injury and is not liable for the value of the young.10 3. If a man struck his father or his mother1 1 and inflicted no wound, or if he wounded his fellow on the Day of Atonement, he is liable on all the [five] counts; if he wounded a Hebrew bondman12 he is liable on all the counts, excepting loss of time, if it was his own bondman. If he wounded a Canaanitish bondman13 belonging to others he is liable on all the counts. R. Judah says: [Damages for] indignity are not paid for bondmen.
4. It is an ill thing to knock against a deaf-mute, an imbecile, or a minor: he that wounds them is culpable, but if they wound others they are not j Because they damage the sown fields. Cf. Dem. 2s.
* Which are liable to pick out a lentil’s bulk of a dead creeping thing, so conveying uncleanness to houses. 3 Some texts read ‘no Israelite’.
* Four miles. App. II, C. s Cf. Ket. 3’.
6 And is now only capable of such work. * Cf. Ket. 3’; Arak. 3*.
* Deut. 2511. This passage is the basis of the imposition of damages for ‘indignity’. The penalty ‘thou shalt cut off her hand’ is interpreted to mean, ‘she shall pay a money-fine’.
9 Ex. 2i**. See above, 5*. 10 Since Ex. 2 1*1 speaks only of ‘men’. 11 Ex. 2iu.
culpable. It is an ill thing to knock against a bondman or a woman: he that wounds them is culpable, but if they wound others they are not culpable; yet they may need to make restitution afterward — if the woman was divorced or the bondman freed they are liable to make restitution.
5. If a man struck his father or his mother and left a wound, or if he wounded his fellow on the Sabbath, he is not culpable on any of the [five] counts, in that he is liable with his life. If a man wounded his Canaanitish bondman he is not culpable on any of the [five] counts.
6. If a man cuffed his fellow he must pay him a sela.1 R. Judah says in the name of R. Jose the Galilean: One hundred zuz. If he slapped him he must pay him 200 zuz. If [he struck him] with the back of his hand he must pay him 400 zuz. If he tore his ear, plucked out his hair, spat and his spittle touched him, or pulled his cloak from off him, or loosed a woman’s hair in the street, he must pay 400 zuz. This is the general rule: all is in accordance with a person’s honour. R. Akiba said: Even the poorest in Israel are looked upon as freemen who have lost their possessions, for they are the sons of Abraham, Isaac, and Jacob. It once happened that a man unloosed a woman’s hair in the street and she came before R. Akiba and he condemned him to pay her 400 zuz. He replied, ‘Rabbi, give me time’. And he gave him time. He perceived her standing at the entry of her courtyard and he broke before her a cruse that held an issar’s worth of oil. She unloosed her hair and scooped up the oil in her hand and laid her hand on her head. He had set up witnesses in readiness against her and he came before R. Akiba and said to him, ‘Rabbi, should I give such a one as this2 400 zuz?’ He answered, ‘Thou hast said naught at all, since he that wounds himself, even though he has not the right, is not culpable; but if others have wounded him, they are culpable’. If a man cut down his own plants, even though he has not the right, he is not culpable; but if others cut them down they are culpable.
7. Even though a man pays [him that suffers the indignity], it is not forgiven him until he seeks forgiveness from him, for it is written, Now, therefore, restore the man's wife...[and he shall pray for thee\.3 And whence do we learn that if he did not forgive him he would be accounted merciless?4 Because it is written, And Abraham prayed unto God and God healed Abimelech...s If a man said, ‘Blind my eye’, or ‘Cut off my hand’, or ‘Break my foot’, he [that does so] is culpable; [even if he said], ‘on the condition that thou shalt not be culpable’, he is [still] culpable. [If he said,] ‘Tear my garment’, or ‘Break my jug’, he [that does so] is culpable. [But if he said,] ‘on the condition that thou shalt not be culpable’, he is not culpable. [If he said,] ‘Do so to such-a-one, on the condition that thou shalt not be culpable’, he is [still] culpable,6 whether [it was an offence] against his person or his property.
9. 1. If a man stole7 wood and made it into utensils, or wool and made it into garments, he makes restitution according to [the value of the stolen property at] the moment of the theft. If he stole a cow that was with young, and it then brought forth young, or an ewe ready to be sheared, and he then sheared it, he repays the value of a cow about to bear young, or of an 1 Four zuz. * Who is ready to disgrace herself for an issar’s worth (‘a half-penny’s worth’) of oil. The issar is one twenty-fourth part of a denar or zuz. * Gen. 20’.
4 Variant: 'Whence do we learn that he who must forgive should not be merciless?’
* Gen. 20l\ 4 Cf. 6*. 1 Heb. gazal, take openly, by force. Similarly in the following paragraphs. In io* the verb is ganab, take surreptitiously.
FOURTH DIVISION: NEZIKIN ewe ready to be sheared. If he stole a cow, and while it remained with him it was impregnated and bore young, or [if he stole] a ewe, and while it remained with him it grew its wool and he sheared it, he makes restitution according to [the value at] the moment of the theft. This is the genera! rule: all thieves make restitution according to [the value at] the moment of the theft.
2. If he stole a beast and it grew old [while it remained with him], or bondmen and they grew old, he makes restitution according to [their value at] the time of the theft. R. Meir says: As for bondmen, the thief may say to the owner, ‘Here before thee is what is thine’. If he stole a coin and it cracked, or fruit and it rotted, or wine and it turned sour, he must make restitution according to [the value at] the time of the theft. But if he stole a coin and it went out of use,1 or Heave-offering and it became unclean,2 or leaven and the season of Passover arrived,3 or a beast and it was used for transgression4 or became unfit to be offered on the Altar or was condemned to be stoned, s he may say to the other, ‘Here before thee is what is thine’.6 3. If he gave aught to craftsmen to be mended, and they spoilt it, they must make restitution. If he gave a carpenter a box, chest, or cupboard to be mended, and he spoilt it, he must make restitution. If a builder undertook to pull down a wall and he broke the stones or caused [other] damage, he must make restitution; but if he was pulling down at the one end and it fell down at the other, he is not culpable; but if it fell by reason of a blow, he is culpable.
4. If a man gave wool to a dyer and the cauldron burned it, the dyer must repay him the value of his wool. If he dyed it badly but the improve¬ ment was worth more than the [dyer’s] outlay, he must repay him his out¬ lay; and if the outlay was more than the value of the improvement, he need pay only the value of the improvement. If he told him to dye it red and he dyed it black, or black and he dyed it red, R. Meir says: The dyer must pay him the value of the wool. R. Judah says: If the improvement was worth more than the [dyer’s] outlay he must pay him his outlay; and if the outlay was more than the value of the improvement, he need pay only the value of the improvement.
5. If7 a man robbed his fellow of the value of a perutah and swore [falsely] to him, [if he would make restitution] he must take it and give it to him even [if his fellow had gone] as far as Media.8 He may not give it to his son or to his agent,9 but he may give it to the agent of the court. And if his fellow had died he must restore it to his heirs.
6. If he had repaid him the value but had not paid him the [added] fifth,10 or if he had been forgiven the value but not the [added] fifth, or if he had been forgiven both save less than a perutah' s worth of the value, he need not go after him. If he had repaid him the [added] fifth but not the value, or if he had been forgiven the [added] fifth but not the value, or if he had been forgiven both save a [whole] perutah’ $ worth of the value, he must go after him.
1 In that country yet remained current elsewhere.
1 And so unfit to be eaten by the priest. 3 So that it was forbidden to an Israelite.
4 Unnatural crime or idolatry. Cf. Zeb. 81. * Ex. 21**.
6 He is not answerable for loss of value which he could not anticipate.
* Where (Is. 13") they have no regard for silver and gold.
* Lev. t>‘: ‘unto him to whom it appertaineth shall he give it’. 10 Lev. 6‘.
7. If he had paid him the value and had sworn [falsely] to him con¬ cerning the [added] fifth, he must pay moreover a fifth of the [added] fifth [and so on,] until the value [of the added fifth] becomes less than zperutah's worth. So, too, with a deposit, for it is written, In a matter of deposit or of bargain or of robbery, or if he have oppressed his neighbour or have found that which was lost and deal falsely therein and swear to a lie' — such a one must pay the value and the [added] fifth and [offer] a Guilt-offering.
8. [If one man said,] ‘Where is my deposit?’ and the other said, ‘It is lost’, [if the one says,] ‘I adjure thee’, and the other says, ‘Amen!’ and witnesses testify against him that he consumed it, he need pay [only] the value. But if he confessed it of himself, he must repay the value and the [added] fifth and [offer] a Guilt-offering. [If one man said,] ‘Where is my deposit?’ and the other said, ‘It is stolen’, [if the one says,] ‘I adjure thee’, and the other says, ‘Amen!’ and witnesses testify against him that he stole it, he must make twofold restitution. If he confessed it of himself, he must repay the value and the [added] fifth and [offer] a Guilt-offering.
9. If a man stole from his father and swore [falsely] to him, and the father died, he must repay the value and the [added] fifth to the father’s sons or brothers; if he will not repay2 or if he has naught [wherewith to repay], he must borrow and the creditors come and exact payment.3 10. If a man said to his son, ‘ Konam be any benefit thou hast of mine!' and he died, the son may inherit from him; [but if moreover he said] ‘both during my life and at my death!’ when he dies the son may not in¬ herit from him and he must restore [what he had received from his father at any time] to the father’s sons or brothers; and if he has naught [where¬ with to repay] he must borrow, and the creditors come and exact payment.4 11. If a man stole from a proselyte and swore [falsely] to him, and the proselyte died, he must repay the value and the [added] fifth to the priests, and the Guilt-offering to the Altar, for it is written, But if the man have no kinsman to whom restitution may be made for the guilt, the restitution for guilt which is made unto the Lord shall be the priest's, besides the ram of the atonement whereby atonement shall be made for him.* If he brought the money and the Guilt-offering [to the Temple] and then died,6 the money shall be given to his sons, and the Guilt-offering shall be left to pasture until it suffers a blemish, when it shall be sold; and its value falls to the Temple treasury.
12. If he gave the money to the priests serving their [weekly] Course,7 and then died, the heirs cannot recover it from their hands, for it is written. Whatsoever any man giveth the priest it shall be his* If he gave the money to [the Course of] Jehoiarib and the Guilt-offering to [the Course of] Jedaiah,® he has fulfilled his obligation; but if he gave the Guilt-offering to [the Course of] Jehoiarib and the money to [the Course of] Jedaiah, if the Guilt¬ offering still remains the sons of Jedaiah shall offer it; otherwise he must bring another Guilt-offering. For if a man brought what he had stolen before he offered his Guilt-offering, he has fulfilled his obligation; but if he brought his Guilt-offering before he brought what he had stolen, he has not yet fulfilled his obligation. If he gave the value but not the [added] * Lev. 6*1. 1 Out of his own property.
J i.e. recover the loan from the heirs jointly. 4 See preceding note.
s Num. 5*. 4 So expiating his sin. r See Taan. z*. * Nutn. s'*.
9 The first and second of the weekly Courses (1 Chron. 24’).
346 FOURTH DIVISION: NEZIKIN fifth, the [added] fifth does not hinder [him from offering the Guilt¬ offering].
10. 1. If a man stole aught and gave it to his children to eat or if he left it to them [after his death], they are exempt from making restitution. But if it was mortgaged property they are liable to make restitution. None may take change for money from the counter of excisemen or from the wallet of tax-gatherers, or take any alms from them;1 but it may be taken from them at their own house or in the market.2 2. If tax-gatherers took a man’s ass and gave him another, or if robbers robbed a man of his coat and gave him another, they become his own, since the owner cherishes no hope of recovering them. If a man saved aught from a flood or from marauding troops or from robbers, and the owner cherished no hope of recovering it, it becomes the man’s own. So, too, with a swarm of bees: if the owner cherished no hope of recovering them, they become the finder’s own. R. Johanan b. Baroka said: A woman or a child may be believed if they say, ‘The swarm of bees went away from here’. A man may go into his fellow’s field to save his sw'arm and if he causes damage he must pay for the damage that he has caused; but he may not cut off a branch from his fellow’s tree even on the condition of repaying the value. R. Ishmael, the son of R. Johanan b. Baroka, says: He may indeed cut it off and repay the value.
3. If a man recognized any of his utensils or books in another’s hands and the report had gone forth in the city that such things had been stolen, he that had bought them may swear to him how much he had paid and take [this price from the owner and restore the goods]. But if [such a report had] not [gone forth] his3 claim avails him naught, since I might say that he had first sold them to another and yet another had bought them from him.
4. If one came with his jar of wine and the other came with his jug of honey and the jug of honey cracked, and the other poured out his wine and saved the honey [by receiving it] into his jar, he can claim no more than his hire. But if he had said, ‘I will save what is thine but do thou pay me the value of what is mine’, the other must pay it to him. If a flood swept away a man’s ass and the ass of his fellow, and his own was worth 100 zuz and that of his fellow 200 zuz, and he left his own and saved that of his fellow, he can claim no more than his hire. But if he had said, ‘I will save thine, but do thou pay me for mine’, the other must pay it to him.
5. If a man stole a field from his fellow and tyrants took it from him, if the whole district4 suffered, he may say to his fellow, ‘Here before thee is what is thine’. But if it was through the thief’s own fault,5 he must provide him with another field. If a flood swept it away, he may say to him, ‘Here before thee is what is thine’.
6. If a man stole aught from his fellow in an inhabited region, or bor¬ rowed it or received it as a deposit, he may not restore it to him in the wilderness; but if [he had borrowed or received it] with the understanding that he was going out to the wilderness, he may restore it to him in the wilderness.
7. If a man said to his fellow, ‘I robbed thee [of such a thing]’, or, ' Since such money is deemed got by robbery.
1 When they *re not practising their calling. * The original owner.
4 If many owners in the neighbourhood suffered; e.g. by government confiscation.
s If because of his offence against the government his property was confiscated.
‘Thou didst lend it to me’ or ‘Thou didst deposit it with me, but I do not know whether I restored it or not’, he is bound to repay it. But if he said, ‘I do not know whether I robbed thee of it’, or ‘whether thou didst lend it to me’ or ‘whether thou didst deposit it with me’, he is not bound to repay it.
8. If a man stole a lamb from the flock and restored it, but it died or was stolen again, he is answerable for it. If the owner knew neither of its theft nor of its return and counted the flock and found it complete, the thief is not culpable.
9. None may buy wool or milk1 from herdsmen, or wood or fruit from them that watch over fruit-trees; but from women they may buy2 garments of wool in Judea and garments of flax in Galilee or calves in Sharon. But if they [that sell them] say that these must be kept hidden, it is forbidden. They may buy eggs and fowls anywhere.
10. Shreds of wool which the washerman pulls out belong to him;3 but those which the woolcomber pulls out belong to the householder. If the washerman pulled out three threads they belong to him, but if more than this they belong to the householder. If there were black [threads] among the white, and he took them all out, they belong to him. If the tailor had left over thread sufficient to sew with or a piece of cloth three fingerbreadths square, these belong to the householder. What a carpenter takes off with the plane belongs to him; but [what he takes off] with a hatchet belongs to the householder. But if he was working in the domain of the householder even the sawdust belongs to the householder.
1. 1. If two laid hold of a cloak and one said, ‘I found it’, and the other said, ‘I found it’, or if one said, ‘The whole of it is mine’,* and the other said, ‘The whole of it is mine’,6 each must take an oath that he claims not less than the half of it and they divide it between them. If one said, ‘The whole of it is mine’, and the other said, ‘The half of it is mine’, he that said, ‘The whole of it is mine’, must take an oath that he claims not less than three-quarters, and he that said, ‘The half of it is mine’, must take an oath that he claims not less than one quarter; and the former takes three-quarters and the latter one-quarter.7 2. If two men were riding on a beast, or if one was riding and the other leading it, and one said, ‘The whole of it is mine’, and the other said, ‘The whole of it is mine’, each must take an oath that he claims not less than the half of it, and they divide it between them. But when they admit [that they found it together] or have witnesses [to prove it], they may divide it without taking an oath.
3. If a man was riding on a beast and saw lost property and said to his fellow, ‘Give it to me’, and the other took it and said, ‘I have acquired title to it’, his claim to it is valid. But if after he had given it to him he said, ‘I acquired title to it first’, he has said nothing.
4. If a man saw lost property and fell upon it and another came and seized it, he that seized it has acquired title to it. If a man saw people 1 Some texts add ‘or kids’. 1 Some texts omit ‘garments of wool in Judea and’.
* 'I bought it first'. 7 i.e. they share the half which alone is in dispute.
348 FOURTH DIVISION: NEZIKIN running [in his field] after lost property, after a lame gazelle, or after pigeons that could not fly, and he said, ‘My field gives me title [to them]’, his claim is valid. But if the gazelle could run after its proper fashion, or if the pigeons could fly, and he said, ‘My field gives me title’, he has said nothing.
5. What is found by a man’s son or daughter that are minors,1 what is found by his Canaanitish bondman or bondwoman,2 and what is found by his wife, belong to him; but what is found by his son or daughter that are of age, what is found by his Hebrew bondman or bondwoman,3 and what is found by his wife whom he has divorced (even though he has not yet paid her her Ketubah),* belong to them.
6. If a man found bonds of indebtedness he should not restore them [to the creditor] if they record a lien on property, since the court would exact payment from the property; but if they do not record a lien on property he may restore them, since the court would not exact payment from the property. So R. Meir. But the Sages say: In either case he should not restore them, since [in either case] the court would exact payment from the property.5 7. If a man found bills of divorce, or writs of emancipation, or wills, or deeds of gift, or quittances, he should not restore them, for I might say that even if they had been written out, the writer may have bethought him¬ self and determined not to deliver them.
8. If a man found letters of valuation6 or letters of alimony7 or deeds of halitzah 8 or Refusal,9 or deeds of arbitration, or any document drawn out by the court, he should restore them. If he found documents in a satchel or bag, or a roll of documents or a bundle of documents, he should restore them. How many count as a bundle of documents? Three tied up together. R. Simeon b. Gamaliel says: [If the document that was found concerned] one man that borrowed from three others, it should be restored to the borrower; but if three men that borrowed from one other, it should be restored to the creditor. If a man found a document among his documents and he does not know what is its nature,10 it must be left until Elijah comes.11 If there were postscripts belonging to the documents12 let him act in accordance with the postscripts.
2. 1. What lost goods belong to the finder and what must be proclaimed? 1 3 These goods belong to the finder: if a man found scattered fruit, scattered money, small sheaves in the public domain, cakes of figs, bakers’ loaves, strings of fish, pieces of flesh, wool-shearings [in the condition in which they have been] brought from their country [of origin], stalks of flax, and strips of purple wool;14 these belong to the finder. So R. Meir.ls R. Judah 1 While they are dependent on the father. Cf. Nidd. 5*’ ’. * Lev. 25**'.
s Assuming that it was only through the scribe’s error that security for the debt was unrecorded.
6 Assessments by the court of the value of a debtor’s property which stands as security for his debt.
7 In which a husband undertakes the maintenance of his stepdaughters (cf. Ket. I21').
10 Whether it was a bond entrusted to him (cf. B.B. io‘) by a borrower or a lender, or whether it was repaid in whole or in part.
1 1 He may never restore it to either of them.
17 The documents themselves being torn or illegible.
13 Some texts omit.