Bava Kamma

and it so happened that witnesses appeared and proved the first oath [to have been perjury]  while he himself confessed that the last oath was perjury.  Now, what is the law? Is it the pecuniary value for which there is liability to make double payment that exempts from the Fifth, so that [as] in this case too there is liability to make double payment [for the deposit, there would be no Fifth for it], or perhaps it is the oath which involves a liability for double payment that exempts from a Fifth, so that since the last oath does not entail liability for double payment  it should entail the liability for the Fifth? — Said Raba: Come and hear: If a man said to another in the market: 'Where is my ox which you have stolen,' and the other rejoined, 'I did not steal it at all,' whereupon the first said, 'Swear to me, and the defendant replied, 'Amen,' and witnesses then gave evidence against him that he did steal it, he would have to repay double, but if he confessed on his own accord, he would have to pay the Principal and a Fifth and bring a trespass offering.  Now here it is the witnesses  who make him liable for double paymentl, and yet it was only where he confessed of his own accord that he would be subject to the law of a Fifth,  whereas where he made a confession after [the evidence was given by] the witnesses, it would not be so. But if you assume that it is the oath involving liability of double payment that exempts from the Fifth, why then [in this case] even where he made confession after the evidence had already been given by the witnesses should the liability for the Fifth not be involved? Since the oath here was not instrumental in imposing the liability for double payment why should it not involve the liability for the Fifth? This would seem conclusively to prove that a pecuniary value for which there is liability to make double payment exempts from the Fifth, would it not? — This could indeed be proved from it. Rabina asked: What would be the law as to a Fifth and double payment to be borne by two persons respectively? — What were the circumstances? — E.g., where an ox was handed over to two persons and both pleaded in defence theft, but while one of them confirmed it by an oath and subsequently confessed [it to have been perjury] the other one confirmed it by an oath and witnesses appeared [and proved it perjury]. Now, what is the law? Shall we say that it was only in the case of one man that the Divine Law was particular that he should not pay both the Fifth and double payment,  so that in this case [where two persons are involved]. one should make double payment and the other should pay a Fifth, or shall it perhaps be said that it was regarding one and the same pecuniary value that the Divine Law was particular that there should not be made any payment of both a Fifth and double payment;  and in this case also it was one and the same pecuniary value? — This must stand undecided. R. Papa asked: What would be the law regarding two Fifths and two double payments in the case of one man? What are the circumstances? E.g., where the bailee first pleaded in his defence loss and after confirming it by an oath confessed [it to have been perjury],  but afterwards came back and pleaded [again a subsequent] loss, confirming it by an oath, and then again confessed [it to have been perjury];  or, e.g., where he pleaded in defence theft confirming it by an oath and witnesses appeared [and proved it to have been perjury],  but he afterwards came back and advanced [again] the defence of [a subsequent] theft, confirming it by an oath, and witnesses appeared against him. Now, what would be the law? Shall we say that it was only two different kinds of pecuniary liability  that the Divine Law forbade to be paid regarding one and the same pecuniary value,  whereas here the liabilities are of one kind  [and should therefore be paid], or perhaps it was two pecuniary liabilities  that the Divine Law forbade to be paid regarding one and the same pecuniary value and here also the pecuniary liabilities are two?  — Come and hear what Raba stated: And shall add the fifth:  the Torah has thus attached many fifths to one principal.  It could surely be derived from this. If the owner had claimed [his deposit] from the bailee who, [though] he [denied the claim] on oath [nevertheless] paid it, and [it so happened that] the actual thief was identified,  to whom should the double payment go?  — Abaye said: To the owner of the deposit, but Raba said: To [the bailee with] whom the deposit was in charge. Abaye said that it should go to the depositor, for since he was troubled  to the extent of having to impose an oath, he could not be expected to have transferred the double payment.  But Raba said that it would go to [the bailee with] whom the deposit was in charge, for since [after all] he paid him, the double payment was surely transferred to him. They are divided on the implication of a Mishnah, for we learned: Where one person deposited with another an animal or utensils which were subsequently stolen or lost, if the bailee paid, rather than deny on oath, although it has been stated  that an unpaid bailee can by means of an oath discharge his liability and [it so happened that] the actual thief was found and had thus to make double payment, or, if he had already slaughtered the animal or sold it, fourfold or fivefold payment, to whom should he pay? To him with whom the deposit was in charge. But if the bailee took an oath [to defend himself] rather than pay and [it so happened that] the actual thief was found and has to make double payment, or, where he already slaughtered the animal or sold it, fourfold or fivefold payment, to whom shall he pay? To the owner of the deposit.  Now, Abaye infers his view from the commencing clause, whereas Raba deduces his ruling from the concluding clause. Abaye infers his view from the commencing clause where it was stated: 'If the bailee paid, rather than deny on oath …' this is so only where he was not willing to swear,