Mishnah Bava Kama 9:8
Dr. Dvora Weisberg

“Where is my pledge?”  If he says to him, “It was stolen,” [and the owner says], “I demand that you swear an oath [that it was indeed stolen],” and he replies, “So be it” and then witnesses testify that he [himself] stole it – he pays double indemnity.  If he acknowledges it himself, he pays the value [of the pledge], and an additional fifth of the cost, and [brings] a guilt offering.

Commentary

Our mishnah deals with a case involving two individuals, one of whom has agreed to keep safe property belonging to the other.  The commentaries categorize such caretaking as “unpaid care” and exempt such a caretaker from payment in the event of theft, providing he swears that he acted responsibly. 

The owner of the object comes to the caretaker and asks for his property.  The caretaker responds by telling the owner that the object was stolen.  The owner asks the caretaker to swear that he acted appropriately, making appropriate efforts to keep the object safe, and the latter responds, “So be it.”  According to Kehati, the caretaker’s response is equivalent to actually taking an oath.

If after the oath is taken, it is discovered through a third party that the caretaker lied and in fact stole the object, he is treated like any thief and pays double the value of the stolen item to the owner.  If, on the other hand, the caretaker admits after taking the oath that he stole the object, he is required to give the owner the value of the object and a penalty of an additional fifth of the object’s value.  He also brings a guilt offering as a penalty for having taken a false oath.

Why does a person who steals an object and admits his theft pay considerably less to the victim of the theft than one who is caught by others?  Our mishnah suggests that there is significant value in admitting one’s guilt.  Although it does not alleviate the thief’s responsibility for his action, it does evoke a gentler response from the legal system.  Taking responsibility is an important factor in determining how a person is punished for his actions.

Join us at a URJ North American Forum for three days of networking and learning! Visit urj.org/naforums for details.

Take your study of 10 Minutes of Torah to the next level. Sign up for Eilu V'Eilu. Each month, two scholars debate an issue and answer questions raised by you, the learner.