Commentary for Shevuot 8:4

אמר לאחד מן השוק – here we do not have the reading “I impose an oath upon you.” Because without an oath, he would be liable for double payment. For this one is an actual thief, and regarding a thief, it is written (Exodus 22:6): “[if the thief is caught,] he shall pay double,” and he does not need an oath.

Introduction Mishnah four is a digression in the Mishnah, which deals with some laws of stealing.

עדים שממשמשין ובאין – it is teaching us something remarkable – for even though on account of fright of the witnesses, he admits, even so, the admission is a benefit and he is exempted from the double payment. And since there is no double payment, he is exempt even from the slaughtering that he denied that and the witnesses came that he had stolen, and slaughtered or sold. For wherever there is no double payment, there is no liability for slaughtering, for the All-Merciful mentioned “four-fold payment or five-fold payment” (see Exodus 21:37: “When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep.”), and not “three-fold payment for four-fold payment,” and because there is not double-payment, less than this is one.

If a man said to one in the market, “Where is my ox which you have stolen?” and he replied, “I did not steal it,” and witnesses testified against him that he did steal it, he pays double. If he killed it or sold it, he pays four or five times its value. If he saw witnesses coming nearer and nearer, and he said, “I did steal it, but I did not kill or sell it,” he pays only the principal. This mishnah does not discuss false swearing but rather some laws of stealing. As we learned in Bava Kamma, one who steals and is caught must pay back a double payment. If he killed or sold a stolen animal he must pay back four (for a sheep or goat) or five (for an ox or cow) times the value. We have also learned on several occasions, that one who admits to having stolen the object, without witnesses first testifying against him, only pays back the principal. The scenario in our mishnah, in which a person accuses someone (not a guardian, rather any person in the marketplace) of having stolen his ox teaches two new rulings. First of all, if the accused admits to having stolen the object only because witnesses are about to testify against him, he is nevertheless obligated to pay back the principal but exempt from the double payment. In other words, even though witnesses were about to testify against him, this still counts as an admission. Second, if he admits to stealing the object, but does not admit to killing or selling it, he is exempt from paying back four or five times the value. Although witnesses testify that he did indeed sell or slaughter the ox, since he admitted to stealing it, it is considered an admission and he must pay back only the principal. There is no case in Jewish law where a person makes the four or five times payment, but is exempt for the double payment. This is because the Torah states that he will pay back four or five times. If he didn’t pay the double payment he would end up paying three or four times, an amount not specified anywhere in the Torah.

Questions for Further Thought:
• How would the ruling in this mishnah differ, if the accused was the unpaid guardian of the ox?