Siman 351

We hold that a person does not receive lashes and pay, as written in siman 338, and likewise a person does not die and pay. There is a stringency regarding death over lashes, for with lashes, if they did not warn him, he is liable for payment; but with a liability of death, even if they did not warn him, and even if he was unintentional, he is exempt from payment [Ketubot 35a]. Therefore, even in this time, if one committed a transgression that carries a liability of death, he is exempt from payment, and even to fulfill his obligation toward Heaven he is not liable for a fine [Tosafot ibid. 33b]. There are those who disagree on this, and also if he seized the payment, we do not remove it from him [Hagahot Ashri, Perek Meruba]. Regarding money that is not a fine, according to everyone he is liable if he comes to fulfill his obligation toward Heaven. A liability of karet or death at the hands of Heaven does not exempt one from payment, for only death by a beit din exempts. However, karet exempts from lashes because for every liability of karet there are lashes, as the Rambam wrote in chapter 19 of Sanhedrin, and likewise a liability of death at the hands of Heaven, as he wrote there.

Therefore, there is a thief who is exempt from payment. And who is this? One for whom the obligation of death comes along with the payment, such as one who steals a purse on Shabbat and did not lift it in the domain of the owners, but rather was dragging it and taking it out to the public domain and lost it there, because the prohibition of Shabbat and the prohibition of theft come as one. But if he stole the purse and lifted it there, and afterwards took it out to the public domain and lost it, he is liable to pay, for he became liable for payment before he became liable for stoning, as the liability of death only exempts when they come as one.

Death does not exempt except when that money is not in existence, such as when he damaged something at the time of the death penalty liability, and in the case of theft when he destroyed the theft. However, when it is in existence, he returns it to the owners, for the monetary liability only comes at the time of its loss from the world, and prior to this it is in the possession of the owners. Furthermore, this is specifically when it was lost at the time of the death penalty liability, but if at the time of the act it was in existence and afterwards he destroyed it, he is liable to pay; for since at the time of the death penalty liability there was not yet a liability for payment, it is not called "coming as one." And there are those who disagree on this and hold that when it is not in existence he is exempt from paying even if he destroyed it afterwards, for the death penalty liability has not been removed. And furthermore, regarding the death penalty liability it is possible to say that he immediately acquired it in the sense that whenever it is lost he is exempt [Ketzot HaChoshen].

And similarly, one who stole and slaughtered on Shabbat or for idols is exempt even if they did not warn him, as has been written. And even if it was already stolen by him before Shabbat, such that he was already liable for the principal and now only the fine of four and five was added, nevertheless, the death penalty exempts him from the fine; for there is no difference regarding the exemption from payment that comes with a liability of death between monetary payment and a fine. And it goes without saying if the liability for the principal also came on Shabbat, such as if it was borrowed by him and he slaughtered it on Shabbat for the purpose of theft. And even though regarding a fine we find that one is lashed and pays in the case of one who defames, as it is written, "And they shall chastise him and fine him one hundred silver pieces," nevertheless, the essence of this law we learn from conspiring witnesses, about whom it is written, "according to his wickedness," and we expound: For one wickedness you may obligate him, but you may not obligate him for two wickednesses, even if it were a matter of a fine, such as if at the time they testified they slaughtered and sold a stolen ox, and even so the Torah exempted them [Tosafot Ketubot 32a]. And even if the liability of death was for one and the payment for another, he is also exempt, as is proven from what will be explained in siman 380 regarding the law of a pursuer [see there in Tosafot 31a].

If one stole and sold on Shabbat, or sold to a gentile, he is liable; even though he performed a prohibition of Shabbat, since there is no death penalty involved, he is exempt from the fourfold and fivefold payments. And if the sale was performed with a prohibition of stoning, such as where the seller threw it from the public domain into the courtyard of the buyer and said to the buyer, "The stolen object shall not be acquired by you until it rests in your courtyard," he is exempt, for they come as one. But when he did not say this to him, they do not come as one, for the acquisition is when it enters the airspace of the courtyard and the Shabbat prohibition is when it rests. And similarly, if the buyer said to the seller, "Pluck a fig from my fig tree and acquire your stolen object for me with it," he is exempt, because the prohibition of stoning and the prohibition of selling come as one. And all this is regarding Shabbat, but on Yom Kippur, even in the time of the Temple, if they did not warn him, he is liable even for slaughtering, for it is a prohibition of karet, and he is only exempt if they warned him because of the liability of lashes, as I wrote in section 1.

One who appointed an agent to slaughter on Shabbat, the Rambam wrote in chapter 3 that he is liable for fourfold and fivefold payments, for the thief is not liable for the death penalty. However, the Rosh exempts him on the grounds of "slaughter that is not fit," as the Tur wrote in section 18. And there is one who says that when he explicitly commanded him to slaughter on Shabbat, he is exempt; even though regarding slaughtering and selling there is agency for a matter of transgression, as has been written, nevertheless, it is necessary that no other prohibition be mixed with it, and if another prohibition is mixed with it, there is no agency for a matter of transgression [Mishneh LaMelech]. And the great authorities challenged the Tur, for we established that "slaughter that is not fit" is considered slaughter, as has been written regarding one who slaughters a treif animal [Shach in siman 350 and Yam Shel Shelomo in Merubeh siman 20]. And it appears to me that the words of the Tur are correct, for in truth, we do not establish for every matter that it is considered slaughter. For behold, regarding the covering of the blood, we established that it is not considered slaughter, as has been written in Yoreh Deah siman 28. Similarly, regarding unconsecrated animals slaughtered in the Temple Courtyard, the Rambam ruled in chapter 2 of Hilkhot Shechitah that it is not considered slaughter and they are permitted for benefit [see there in Lechem Mishneh chapter 12]. Also regarding fourfold and fivefold payments, it is proven from the Rambam as well that he does not rule in every matter that it is considered slaughter. For behold, in the Gemara [Bava Kamma 71a] it mentioned slaughter on Shabbat, and by an idolater, and an ox that is to be stoned, that according to the one who holds it is considered slaughter, he is liable for fourfold and fivefold payments when slaughtering through another. Yet the Rambam only mentioned slaughter on Shabbat because he holds that the products of Shabbat are permitted, as has been written in chapter 10 of Hilkhot Shabbat. But regarding an idolater and an ox that is to be stoned, which are forbidden for benefit, the Rambam holds that it is not considered slaughter, for it is worse than stabbing since it is not fit for anything. And there is further clear proof, for in chapter 2 of Hilkhot Geneivah, law 8, he ruled that for the slaughter of a treif animal and for the slaughter of unconsecrated animals in the Temple Courtyard, one is liable for fourfold and fivefold payments. And he wrote regarding unconsecrated animals in the Temple Courtyard that the reason is because they are only forbidden for benefit by Rabbinic law; see there. Behold, it is explicit that if they were forbidden by Torah law, he would be exempt from fourfold and fivefold payments. According to this, the Rosh and the Tur, who were concerned in this matter for the opinion of the one who holds that the products of Shabbat are forbidden for benefit, certainly in such a case "slaughter that is not fit" is not considered slaughter and he is exempt from fourfold and fivefold payments. Also, the reason we wrote in siman 350 regarding the slaughter of a treif animal, because it purifies it from its impurity, does not apply to slaughter on Shabbat if we say it is forbidden for benefit; for the slaughter of a treif animal, the verse included it so that it should purify from impurity [Chullin 74a], but when there is a prohibition of benefit involved, the name "slaughter" does not apply to it at all, as is proven from the Rambam chapter 2 of Hilkhot Avot HaTumot, law 6; see there. And one should not wonder that in this matter of fourfold and fivefold payments we would rule regarding a treif animal and unconsecrated animals in the Temple Courtyard that it is considered slaughter, and regarding an idolater, an ox that is to be stoned, and slaughter on Shabbat—according to the one who forbids it for benefit—that it is not considered slaughter. For it is certainly so, that a thing forbidden for benefit has no name of "slaughter" upon it at all. Furthermore, according to the reasons stated in the Shas [ibid. 85a] regarding the matter of "slaughter that is not fit"—why regarding "it and its offspring" is it considered slaughter and regarding "covering the blood" it is not considered slaughter—it is proven explicitly like our words [for it said there that it is because Rabbi Judah the Prince recorded them anonymously in the language of the Sages; and so too here in Bava Kamma 71a regarding an idolater, an ox to be stoned, and Shabbat, the Baraita recorded the opinion of Rabbi Shimon anonymously in the language of the Sages, and regarding an animal to be burned and unconsecrated animals in the Temple Courtyard, our Mishnah recorded the opinion of Rabbi Meir anonymously in the language of the Sages; and examine this].

The Rambam [ibid.], of blessed memory, wrote: One who threw an arrow on Shabbat from the beginning of four [cubits] to the end of four and tore the garment of his fellow during its flight, or if he ignited the stack of grain belonging to his fellow on Shabbat, etc., and similarly if he cut down the tree of his fellow on Yom Tov and they warned him, or if he ignited the stack of grain on Yom Kippur and they warned him, or if he stole and slaughtered on Yom Kippur and they warned him, he is exempt from payment. Thus far his words. And according to the opinion of the Tur in the previous section, according to what we explained, if he stole and slaughtered on Yom Kippur intentionally, he is exempt from the fourfold and fivefold payments even without them warning him, because it is a slaughtering that is not fit, and it is possible that he holds that an action on Yom Kippur is permitted for benefit and is not similar to Shabbat [and in Chullin 15a it does not imply so]. He further wrote that one who steals the chelev of his fellow and ate it pays him the value of his chelev, for chelev is a prohibition of karet and carries only a liability of malkot, and its law is like one who slaughters on Yom Kippur, who is not exempt except during the time of the Temple and they warned him. And even in such a case, if he lifted it beforehand and then ate it, he is liable, for from the moment of lifting he acquired it, and the liability of malkot is only at the time of his eating, and they did not come as one. And he is not exempt unless his fellow thrust it into his gullet with his consent and he is able to cast it out, for if not so, there is no monetary liability for the eater; or if his fellow thrust liquids of terumah into his mouth which are not fit to be cast out because they become repulsive in his mouth, and his liability is for the benefit of his throat and his stomach, and it turns out that they come as one [Ketubot 30b and see there in Tosafot].

In siman 358 it will be explained that one who tunnels into a house to steal may be killed as long as he is still in the tunnel, because the Torah assessed that one who comes through a tunnel is also prepared to take lives, and "one who comes to kill you, rise up and kill him." Therefore, one who comes through a tunnel and stole vessels and took them out and broke them is exempt, even though he broke them after he took them out of the owner's domain. If the vessels are intact, he is obligated to return them, as I wrote in section 3. And some say that he is not exempt unless he broke them while he was still in the tunnel, but if he broke them afterward, he is obligated to pay because they are in the owner's domain until the breaking, and at the time he broke them, he was not then liable for death. The Tur agreed to this. The Rambam holds like the first opinion. And a father who tunnels against his son is always obligated to pay, for he is not liable for death, as I wrote there.