Kiddushin, Daf Mem Gimmel, Part 1

 

Introduction

This week s section continues where we left off why isn t the case of trespass used as a paradigm to prove that there is agency for wrongdoing. According to Bet Hillel, there is also agency for misappropriation, and thus trespass and misappropriation are two words/concepts that teach the same thing, which do not serve as paradigms. But Bet Shammai did not say that there is agency for misappropriation, so our question returns. Why not use trespass as a paradigm?

 

הניחא לב"ה אלא לב"ש דמוקמי ליה להאי קרא במחשבה כמעשה נילף מיניה

 

This goes well according to Bet Hillel. But according to Beth Shammai who interpret this verse as [teaching] that intention is reckoned as an act, let us learn from it?

 

According to Bet Shammai we do not have two verses, and thus we should be able to use trespass as a paradigm to prove that there is agency in wrongdoing. If one sends an agent to commit a crime, the sender should be liable.

משום דהוה מעילה טביחה ומכירה שני כתובים הבאים כאחד וכל שני כתובים הבאים כאחד אין מלמדין

 

Because trespass and slaughtering and selling are two verses with the same teaching, and any two verses that teach the same thing do not teach.

 

The Talmud now locates yet another case where there is agency for wrongdoing, thereby restoring the case that there are two verses that teach the same thing and hence cannot serve as paradigms. Slaughtering and selling will be explained now.

 

מעילה הא דאמרן טביחה ומכירה מאי היא אמר קרא (שמות כא, לז) וטבחו או מכרו מה מכירה ע"י אחר אף טביחה על ידי אחר דבי ר’ ישמעאל תנא או לרבות את השליח דבי חזקיה תנא תחת לרבות את השליח

 

Trespass, as we said. Slaughtering and selling, what does this mean? The verse said, [If a man steals an ox, or a sheep,] and slaughters it, or sell its; [he shall pay five oxen for an ox etc.,] (Exodus 21:37): just as selling is done through another, so may the slaughtering be [done] by another. The School of R. Yishmael taught: or to include an agent. The School of Hizkiyah taught for to include an agent.

 

Slaughtering and selling refers to a thief who steals an animal and then either sells it or slaughters it. In such a case he is liable to make four or five fold restitution (had he simply sold it, he would be liable for twofold restitution). The baraita teaches that even if an agent slaughters it, the thief is liable for the restitution. Thus we now again have two cases where there is an agent for wrongdoing, and these cases cannot serve as a paradigm.