כ״ח בתמוז ה׳תשע״ו (August 3, 2016)

Bava Kamma 64a-b: Penalties and Admissions

As we have seen, this perek focuses on kenas – the penalties of two, four or five times the value of the stolen object that is paid by a thief over and above returning the object or its value to his victim. There is an exception to this rule. If the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty.

One explanation for this law is that the obligation to pay the kenas is not an inherent obligation, rather it is one that is imposed on him by the Jewish court. Once the thief admits his guilt, the court is never called upon to rule on the case, so there is no opportunity for them to impose the penalty.

While this ruling is accepted by all, there is a difference of opinion whether this will be true even if other witnesses testify against him. Rav believes that even if witnesses are found who can testify about this situation, once the thief has admitted his guilt he is free from any obligations to pay the penalty. Others disagree, arguing that his admission is not sufficient to free him, since there were others who testified against him.

The explanation for this disagreement flows from what was presented above. Once witnesses come forward, one could argue that the court must reopen the case to clarify what occurred, and the ultimate ruling is based on their testimony, rather than on the thief’s admission. Thus the court will impose the kenas together with its decision. Rav argues that the penalty is ordinarily imposed because of the decision of the court that is based on the testimony of witnesses – based on his interpretation of the passage in Shemot 22:3) – and if the thief has already admitted his guilt, he is not obligated to pay the penalty.

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