Dikduk for Toen Taanat Ganav
In yesterday’s daf, I thought that Artscroll could have done a better joke at clarifying the grammatical point being made. It may be that it is so obvious that it didn’t bear mentioning. Let us quote Koren’s English translation, for Bava Kamma 63b.
מְנָהָנֵי מִילֵּי? דְּתָנוּ רַבָּנַן: ״אִם יִמָּצֵא הַגַּנָּב״ – בְּטוֹעֵן טַעֲנַת גַּנָּב הַכָּתוּב מְדַבֵּר.
From where are these matters derived? As the Sages taught in a baraita: The Torah states: “If a man gives his neighbor money or vessels to safeguard and it was stolen from the house of the man, if the thief shall be found he shall pay double” (Exodus 22:6). The verse is speaking of a bailee who falsely states the claim that a thief stole.
אַתָּה אוֹמֵר בְּטוֹעֵן טַעֲנַת גַּנָּב – אוֹ אֵינוֹ אֶלָּא בְּגַנָּב עַצְמוֹ? כְּשֶׁהוּא אוֹמֵר: ״אִם לֹא יִמָּצֵא הַגַּנָּב״ – בְּטוֹעֵן טַעֲנַת גַּנָּב הַכָּתוּב מְדַבֵּר.
The baraita continues: Do you say that the verse is speaking about one who falsely claims that a deposit was stolen, or is it speaking only about the thief himself, teaching that if the actual thief is caught he must pay double payment? When the Torah says in the following verse: “If the thief shall not be found…the one whom the judges convict shall pay double to his neighbor” (Exodus 22:7–8), the verse is speaking of one who falsely states the claim that a thief stole the deposit, as it states that no other thief was found. Since the latter verse is speaking of one who falsely claims that a deposit was stolen, it stands to reason that the earlier verse is speaking of this case as well.
What is the ambiguity in the verse, namely in Shemot 22:6 (JPS 1917 translation)?
כִּֽי־יִתֵּן֩ אִ֨ישׁ אֶל־רֵעֵ֜הוּ כֶּ֤סֶף אֽוֹ־כֵלִים֙ לִשְׁמֹ֔ר וְגֻנַּ֖ב מִבֵּ֣ית הָאִ֑ישׁ אִם־יִמָּצֵ֥א הַגַּנָּ֖ב יְשַׁלֵּ֥ם שְׁנָֽיִם׃
If a man deliver unto his neighbour money or stuff to keep, and it be stolen out of the man’s house; if the thief be found, he shall pay double.
By the way, the newer JPS translation is “When any party gives money or goods to another for safekeeping, and they are stolen from that other party’s house: if caught, the thief shall pay double;” Which seems to violate the trup. As im yimatzei / haganav yeshalem shenayim. Also, I like “find” rather than “caught” because it preserves an important ambiguity.
יִמָּצֵ֥א, yimmatzei, is the nifal, which is the passive. It is not that “they find the thief”, as one maggid shiur in the Daf Yomi I heard unfortunately continuously rendered it. That is active. Rather, “the thief was found.”
However, even with this passive form, there are two interpretations. One is: X was found. The other is “he was found to be X”. In the former, there is an external thief. So, the watchman claimed that it was stolen by an external thief, not him. And that thief was caught / found, so the item was recovered. What the gemara, and what the brayta, is proposing, is that the watchman claimed that it was stolen by an external thief. And then, keeping the same “he” as the neighbor, he was found to be the one who stole it. It is a causative construction.
While we are at it, I noticed an interesting thing in the top Tosafot on the second amud,
The gemara discussed toen taanat avad, he claimed that it was lost, rather than that it was stolen, and Tosafot wonder why they say that he actually ate it, rather than that he actually possessed it. The gemara:
תְּנַן הָתָם: ״הֵיכָן פִּקְדוֹנִי?״ אֲמַר לֵיהּ: ״אָבַד״, ״מַשְׁבִּיעֲךָ אֲנִי״, וְאָמַר: ״אָמֵן״; וְהָעֵדִים מְעִידִים אוֹתוֹ שֶׁאֲכָלוֹ – מְשַׁלֵּם אֶת הַקֶּרֶן. הוֹדָה עַל פִּי עַצְמוֹ – מְשַׁלֵּם קֶרֶן וָחוֹמֶשׁ וְאָשָׁם.
§ We learned in a mishna elsewhere (108b) about a case where an owner of an item said to the bailee: Where is my deposit? The bailee said to him: It was lost. The owner said: I administer an oath to you that it was actually lost, and the bailee said: Amen, thereby accepting the oath; and subsequently the witnesses testify about the bailee that he himself consumed the deposit. In this case, the bailee pays the principal, i.e., the value of the deposit, to the owner. If the bailee admitted on his own that he stole the deposit before any witnesses testified to this effect, he pays the principal and an additional one-fifth of the principal amount to the owner, and he brings a guilt-offering to atone for his sin (see Leviticus 5:20–26).
And the Tosafot:
והעדים מעידים אותו שאכלו - אכלו נקט לרבותא אף על פי שאבדו מן העולם פטור מן הכפל בטענת אבד וסיפא נקט שנגנבו לרבותא דאע"פ שהוא בעין חייב כפל כיון שטוען טענת גנב:
It does not seem to be Tosafot’s intent, but their language use brought a different light to the surface. Neither of these people are, strictly speaking, lying as they swear falsely!
After all, he said it was avad / lost, and indeed, it was lost from the world, because he ate it. Or, he said it was stolen. And he really hid it away in his barn where the owner wouldn’t find it, in an attempt to steal it. So yes, it was lost or stolen, just he was the one who did it!
One final thought. The Nikkud above is:
בְּטוֹעֵן טַעֲנַת גַּנָּב הַכָּתוּב מְדַבֵּר
The patach, plus the dagesh in the nun, mean the noun, the profession, the thief. Thus, “states the claim that a thief stole.” With a kametz and no dagesh, which would be “he stole” / “he lost”. What would the passive be, it was lost / stolen? Is there a kal passive? Or, could we say taanat gunav, like כִּֽי־גֻנֹּ֣ב גֻּנַּ֔בְתִּי by Yosef?