QUESTION: The Mishnah teaches that if one stole the value of a Perutah and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.

QUESTION: The Mishnah (103a) discusses a case of one who stole and swore falsely that he did not steal. Afterwards he admitted that he stole. The victim waived the thief's obligation to pay back the Keren (principle) and Chomesh (fifth) that he owes him, except for the value of less than a Perutah from the Keren. The thief is not required to travel far away to find the victim to return to him the value of less than a Perutah. The Gemara (105a) quotes Rav Papa who says that this law -- that the thief is exempt from seeking out the victim and returning less than a Perutah -- applies only when that amount is no longer extant at all. If the thief still has in his hands less than a Perutah from the original money (or object) that he stole, he must seek out the victim and return it to him. Since inflation might cause that amount to increase in value and become worth a Perutah (which the Torah does require him to return), he must return less than a Perutah now as well.

The Gemara cites a second version of Rav Papa's statement. According to that version, Rav Papa says that it makes no difference whether the half-Perutah is extant or not. The thief is always exempt from seeking out the victim and returning the half-Perutah, because we are not concerned that the half-Perutah may increase in value.

The RAMBAM (Hilchos Gezeilah v'Aveidah 7:11) and the SHULCHAN ARUCH (CM 367:3) rule in accordance with the Gemara's second version of Rav Papa, that there is no concern that the half-Perutah will increase in value and become worth a Perutah.

The conclusion of the Gemara here seems to contradict the Gemara in Kidushin (12a). The Gemara there discusses the case of a man who gave a date to a woman for Kidushin. Shmuel says that even if a Kur of dates costs one Dinar, such that a single date is worth less than a Perutah, nevertheless the woman is considered married because the date might be worth a Perutah in Madai (where there is a shortage of dates, as Rashi there explains).

If the Gemara there is concerned for the possibility that the date might be worth a Perutah in another place, the Gemara here should also be concerned that the half-Perutah might increase in value. Similarly, the Gemara here should be concerned that the money worth less than a Perutah in this place might be worth more than a Perutah in another place, and the thief should be obligated to return it. What is the difference between the case of the Gemara here and the case of the Gemara in Kidushin?

ANSWER: The RAN in Kidushin (6a of the pages of the Rif) answers that when the Gemara in Kidushin states that there is a concern that the date might be worth a Perutah in Madai, it does not mean that if it actually is worth a Perutah in Madai that the woman is considered married with no doubt. Rather, the marriage takes effect only out of doubt, because in practice the value of the date is assessed only according to the local, present value, as the Gemara here teaches with regard to the object that was stolen.

Similarly, the Mishnah in Erchin (24a) states with regard to Hekdesh, "one takes into account only its location at the present time." For example, if a person consecrates a pearl in a village, the value which he must pay to Hekdesh is determined by the worth of the pearl in the village, and not by the higher price it would get in the city. It is evident from the Gemara here and the Mishnah in Erchin that the value of money is determined only by the place where it is presently located.

The Ran asserts, therefore, that Shmuel's ruling that a woman who was betrothed with a date is considered married is only a stringency of the Rabanan. The Rabanan imposed this stringency because of the severity of the prohibition of having relations with a woman who is already married. According to Torah law, however, the Kidushin is not valid at all. (The TOSFOS HA'ROSH there writes that even though the Gemara there says that there is a concern that Kidushin may have taken effect, the concern is only mid'Rabanan, not mid'Oraisa.) (D. Bloom)

QUESTIONS: Rav Sheshes rules that when one falsely denies that he received a Pikadon (deposit), he becomes a Gazlan (thief) and is liable for Ones (damage that occurs to the object due to circumstances beyond one's control).

Rami bar Chama challenges the ruling of Rav Sheshes from the Mishnah in Shevuos (44b). The Mishnah teaches exceptions to the rule that an oath is made only to exempt oneself from an obligation to pay, but not to extract money from one's opponent. One case in which a claimant makes an oath to take money from his opponent is the case in which the defendant is suspected of swearing falsely. Since he is suspected of swearing falsely (since he was found previously to have sworn falsely), he cannot make an oath to exempt himself from paying the disputed money, the claimant may make the oath instead of him and take the money from him.

The Mishnah in Shevuos gives examples of those who are suspected of swearing falsely. One example is in a case in which a Shomer swore falsely that he did not have a Pikadon in his guardianship. Rami bar Chama asks that according to Rav Sheshes, if a Shomer is disqualified from the moment that he denies possessing a Pikadon, why does the Mishnah imply that he becomes disqualified only when he actually makes a false oath?

The Gemara answers this challenge by stating that the Mishnah refers to a case in which the animal that was given to the Shomer to watch was grazing in a marsh at the time he denied possessing it. Accordingly, if he made no false oath he does not become disqualified from making an oath, because he made no attempt to steal the animal. Rather, he merely attempted to evade the owner temporarily until he would have time to go to the marsh and return the animal to its owner.

In contrast, Rav Sheshes refers to a case in which witnesses testify that they saw the object in the Shomer's possession at the time he denies having had the object in his possession. In such a case, he is disqualified even if he did not swear falsely.

A number of question may be asked on the Gemara.

(a) If Rav Sheshes refers only to a case in which the witnesses say that they saw the Pikadon in the Shomer's possession at the time he denies having had the object in his possession, it should be obvious that such a person is considered a Gazlan! Why is it necessary for Rav Sheshes to teach that he has the status of a Gazlan?

(b) Similarly, the Gemara earlier cites sources for Rav Sheshes' ruling from various verses. The verse, "And he denies it" (Vayikra 5:22), teaches that he is punished for denying the Pikadon, and the verse, "You shall not deny" (Vayikra 19:11), teaches the warning for this prohibition. Why does the Gemara need to learn such this law from the verses? It should be obvious that this person's denial of the Pikadon constitutes theft!

(c) Finally, why does the Gemara attempt to reject such an obvious law?

ANSWER: The SHITAH MEKUBETZES answers in the name of ROSH that the reason why this law is not obvious is that one might have thought that merely denying a Pikadon does not give a person the status of a Gazlan. Perhaps he is considered a Gazlan only if he actually uses the Pikadon in a way that weakens it. (For example, he works with an animal and thereby weakens it.) The Rosh writes that even according to the opinion in Bava Metzia (41a) that when a Shomer uses a Pikadon without permission he is liable even if he does not weaken (or lessen the value of) the Pikadon, one still might have thought that the Shomer does not have the status of a Gazlan. Without the verses, one might have thought that since the Shomer received the Pikadon in a permissible way (the owner gave it to him voluntarily), he should not be considered a Gazlan unless he actually uses it. Rav Sheshes therefore teaches that merely denying the Pikadon is enough to render a person a Gazlan.

(See the SHITAH MEKUBETZES in Bava Metzia (26b) in the name of the RITVA who explains that one's denial of a Pikadon in Beis Din is equivalent to stealing it directly from the hands of the owner. However, the first statement of RASHI in Sanhedrin (2a), that one's denial of a Pikadon makes him liable only when he is also guilty of Shelichus Yad, remains difficult and requires further elucidation.) (D. Bloom)