Bava Kamma, Chapter 7, Mishnah 4. In the second mishnah of the chapter, we learned about the ways in which a thief becomes liable for the fourfold and fivefold payments. In our mishnah, we will learn about five fundamentally parallel cases in which the thief is exempt from those payments and only pays the double payment.
The first case - testimony about the theft and admission about the slaughter:
The language of the mishnah: "Ganav al pi shenayim" - two witnesses testify that this person stole, and through this he becomes liable for the double payment. "Vetavach umachar al pi ed echad o al pi atzmo" - but regarding the slaughter or sale after the theft, there is only one witness, or the thief himself admitted to it. In this case, "meshalem tashlumei chefel ve'eino meshalem tashlumei arba'ah vachamishah" - he pays the double payment and does not pay the fourfold and fivefold payments.
The reason for the exemption when he admits it himself: the fourfold and fivefold payments are not monetary compensation but rather a penalty, like a punishment, and the rule is that one who admits to a penalty is exempt - a person who admitted his liability for a penalty before paying it is exempt from paying it. This law is derived from the verse in Parashas Mishpatim: "Asher yarshi'un Elohim" - the condemnation must come by the power of the court, and if he was condemned based on his own admission alone, he is exempt from the penalty.
The second case - "ganav vetavach beShabbos" - he stole and slaughtered on Shabbos:
If he stole the animal (whether on Shabbos or during the week, it does not matter) and slaughtered it on Shabbos, the slaughtering is a melachah that carries, under the appropriate circumstances, liability for the death penalty, and the rule of "kim leih bederabbah mineih" - that he receives the greater punishment - comes into effect. Since he stands to face - at least potentially - liability for the death penalty, he does not pay the fourfold and fivefold payments.
This applies only to slaughtering. One who sells on Shabbos only violates a rabbinic prohibition, which does not carry liability for the death penalty, and therefore one who sells the stolen animal on Shabbos is liable for the fourfold and fivefold payments.
The third case - he slaughtered for avodah zarah:
He stole the animal and slaughtered it for the sake of avodah zarah. Slaughtering is one of the four services through which one serves the Almighty, and therefore one who slaughters for avodah zarah incurs the death penalty, and the rule of "kim leih bederabbah mineih" applies - and the slaughtering does not carry with it the fourfold and fivefold penalty.
But had he only sold it for avodah zarah, he would have been liable: selling things for avodah zarah is indeed forbidden, but it is not a transgression for which one incurs the death penalty, and therefore he is liable for the fourfold and fivefold payments.
The fourth case - "mishel aviv umes ve'achar kach tavach umachar" - he stole from his father, his father died, and afterwards he slaughtered or sold it:
He stole an animal from his father's domain, and afterwards his father died, and only then did he slaughter or sell it. As an heir, the son becomes a partial owner of the animal, and even if he has brothers, it does not matter. The verse uses the term "vetavach umachar" - he slaughters or sells it, and from the extra letter vav in these words we learn that a complete slaughtering or a complete sale done in prohibition is required. When a portion of the animal belongs to him, there is no complete transgression here, and he is not liable for the penalty.
It should be noted: all this is when the father died first and the son acquired the animal through inheritance, an automatic direct succession. But if he slaughtered or sold it first and only afterward his father died, he is liable - because at the time of the slaughter or sale, the animal still belonged to his father.
The fifth case - "Ganav vehikdish ve'achar kach tavach umachar" - he stole, consecrated, and afterward slaughtered or sold:
He stole the animal and after the theft consecrated it to the Temple. While it is a rule that despair alone is not effective to transfer ownership, and this is indeed the law; nevertheless, as we will learn at length in the tenth chapter, despair combined with a change of domain - where the original owners despaired of getting their stolen item back, and the object passed to another domain - is effective. Here, the animal passes into the domain and ownership of the Temple, and becomes the property of the Holy One, Blessed is He, as it were. Once he subsequently slaughters or sells this animal that belongs to Hekdesh, he is exempt, since the fourfold and fivefold payments do not apply to consecrated property.
The source for this derivation: It says, "yeshalem shenayim lerei'ehu" - he shall pay double to his fellow, and from the double payment the law extends even to the fourfold and fivefold payments - the payment is to "his fellow," to his fellow Jew, and the Temple is not included in "his fellow."
Here too, the order is essential: the exemption is specifically when he slaughtered or sold after he consecrated it. But if he slaughtered or sold it first, and only afterward consecrated the meat, he is liable for the fourfold and fivefold payments.
In all these cases, the law is the same: "meshalem tashlumei chefel ve'eino meshalem tashlumei arba'ah vachamishah" - he pays the double payment and does not pay the fourfold or fivefold payments - he pays the double payment, since he stole it with witnesses from the owner's house, but he is exempt from the fourfold and fivefold payments.
The view of Rabbi Shimon:
At the end of the Mishnah, the view of Rabbi Shimon is presented, which is not accepted as halachah. Regarding consecrated offerings, Rabbi Shimon distinguishes between an animal for which the consecrator bears responsibility and an animal for which he does not bear responsibility. The basis of the distinction is the difference between a vow (neder) and a freewill offering (nedavah) (a distinction we discussed in Tractate Megillah):
Neder: A person obligates himself to bring an offering, and even if he designated a specific animal for this purpose - if the animal dies, he bears the responsibility to obtain another animal in its place.
Nedavah: A person says that this specific animal will be an offering, and his entire obligation rests upon the animal itself. If it dies, he has no obligation to find another in its place, since the obligation takes effect on the animal and not on him.
Therefore, when he stole and slaughtered a consecrated animal for which the owner bears responsibility, he ends up obligating the owner to purchase a new animal. Rabbi Shimon holds that something which causes a monetary loss is treated like money itself: one who causes his fellow a monetary loss is treated as if he damaged his actual property. Even though the animal itself no longer belongs to the owner but to Hekdesh, since the owner will be forced to replace it - it is as if he took the money out of his pocket, and therefore, "meshalem tashlumei arba'ah vachamishah" - he pays the fourfold and fivefold payments.
But "she'ein chayav be'achrayutan" - for which he does not bear responsibility - regarding an animal consecrated as a freewill offering, where if it was slaughtered the owner does not need to bring another in its place - even Rabbi Shimon concedes that the thief is "patur" - exempt. For even he agrees in principle that slaughtering a consecrated animal does not incur the fourfold and fivefold payments, and he only sought to make him liable due to the monetary loss caused to the owner.
Nevertheless, the halachah does not follow Rabbi Shimon, but rather the Sages, who are the Tanna Kamma in our Mishnah, who hold that something which causes a monetary loss is not treated like money itself. The mere fact that a person causes his fellow a monetary loss does not make the object his own: the obligation incumbent upon the consecrator to replace his animal does not teach that the animal is still his - it is not his, but rather he has a separate obligation to replace it. Therefore, even one who steals and slaughters an animal that was consecrated as a vow and designated for that purpose is exempt from the fourfold and fivefold payments.
In summary: In this Mishnah we learned five cases where the thief pays double but does not pay four and fivefold: when the slaughter and the sale were proven by one witness or by his own admission (from the law of "one who admits to a fine is exempt"); when he slaughtered on Shabbos or for idol worship (from the law of "kim leih bederabbah mineih" - he is subject to the more severe penalty); when he stole from his father and his father died before the slaughter, since then there is no complete slaughter or sale; and when he consecrated it and afterwards slaughtered and sold it, since consecrated property is not included in "his fellow." Finally, we discussed the dispute between Rabbi Shimon and the Sages on the question of something that causes a monetary loss, and that the halachah follows the Sages.