Mishnah Bava Kama 9:7 
Joshua Garroway

If [the thief] repaid [the victim] the principal and swore to him that he included chomesh [but later confessed that he had not], then he pays chomesh on the chomesh until the value of the principal becomes less than a perutah. So, too, with a deposit; as it says, “in the case of a deposit, a loan, or a robbery, or if he oppressed his neighbor or found a lost item and denied it, and then he swears falsely” (Lev. 5:21), he repays the principal and chomesh and brings an asham offering. [For example]: “Where is my deposit?” [asks the depositor]. “It was lost,” [replies the custodian]. “Do you swear it?” [asks the depositor]. “I do,” [replies the custodian]. Then witnesses come and testify that [the custodian] consumed it. [In that case,] he pays the principal. If he admits it himself, then he repays the principal with chomesh and brings an asham offering.

Commentary

Our mishnah continues to discuss the responsibility of a thief, who denied having robbed his fellow but then confessed, to repay the aggrieved party the amount of the principal plus an additional fifth (chomesh). Here the concern is people who deceptively withhold a portion of the payment due their victims.

If the thief repays the principal and swears that he also paid the additional fifth, but later he admits that he did not pay the extra sum, he becomes liable for an additional fifth on the fifth he withheld. If he then repays the original added-fifth, but deceitfully withholds the second fifth, he becomes liable for a fifth on the second fifth. If he continues over and over again to shirk on the penalty payments (and swears and recants), then he continues to become liable for additional fifths until the value of a fifth is less than one perutah. In other words, if he originally owed a principal of 80perutah (plus 20 perutah as chomesh), and he paid the 80 but swore and later confessed regarding the additional 20, he becomes liable for the 20 perutah plus an additional 5 perutah. If, in paying back the 20 perutah, he shirks on the additional 5perutah (and swears and confesses), he owes 5 perutah plus an additional 1.25pertutah. If he shirks on that last sum, however, he is no longer responsible forchomesh because its value is negligible (i.e., less than 1 perutah).

Our mishnah goes on to explain that this situation applies not only to the case of a thief, but also to one who unlawfully acquires funds from a deposit, as Lev. 5:21-22 explains. So, if a person comes to collect funds that were deposited with a custodian, and the custodian swears the funds were lost but later confesses that he in fact consumed them, then he becomes liable for the principle, chomesh, and a guilt-offering, as in the case of the thief. If, however, the custodian claims the funds have been lost, and swears by it, but others come along and say that he used the funds himself, then he is responsible for repaying only the principal, not chomesh.

It appears as though our mishnah wishes to forestall efforts to evade responsibility for misappropriation by engaging in further deception and dishonesty. Such an unfortunate chain of events is not uncommon: wrongdoers, hoping to minimize the penalty for their transgression, commit a second transgression, the punishment for which often results in a third, fourth, and fifth transgression. Eventually such culprits wind up crushed by a snowball of fraud and deception. Our mishnah’s recommendation is clear: come clean and pay up. Theft or misappropriation is not an irredeemable act. Perpetrators can repair the breach by restoring their victims to wholeness with a modest additional payment. The best course of action, our mishnah suggests, is to do so promptly and honestly.

Questions for Reflection

1. What do you think our mishnah means when it says that the custodian “consumed” the deposit (Hebrew achal)? Would the situation be different if the custodian still possessed the deposited funds but was deceptively withholding them?

2. Why do you think our mishnah requires payment of the added-fifth when the culprit admits that he swore falsely, but not when witnesses testify that he swore falsely?

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