דף ק"ה
The additional fifth that the Torah imposed is it a חיוב ממון or a מצוה for atonement
The difference is if the victim can sue the thief for the money. The גמרא brings three proofs that it is a monetary obligation. The first is our משנה. It says the thief does not have to travel to pay the fifth to the victim but inferred is he owes it to him. There is a ברייתא that obligates even the son to pay the fifth if his father swore, admitted and died before paying but תורת כהנים exempts the son even if he took an oath!
This is a case where the stolen item no longer exists. Although the thief if he were alive would have to pay its value, the son is obligated to return only the stolen item. Therefore the oath does not qualify as denying a monetary obligation. However the principle he has to pay because his father left him land. The court's decision requiring the thief to pay is tantamount to a documented loan that creates a lien on the debtor's property. He is exempt from paying the fifth because his oath only denied the lien. Since one does not swear regarding claims on land, his oath is legally inconsequential.
רבא answers that the son was unaware of the theft so he swore falsely inadvertently. The requirement of the fifth is only where one swears falsely intentionally.
The משנה does not require the thief to travel to the victim to return less than a שוה פרוטה
The גמרא's first version states if the stolen item still exists there is a concern the price will rise to a שוה פרוטה which will disqualify his אשם sacrifice retroactively since he must pay before bringing the sacrifice.
The second version states that even if the price rises it would not disqualify the sacrifice. He would be required to return the stolen item.
The price of the stolen items decrease below a שוה פרוטה
He stole three lettuces worth three פרוטות. The price decreased to three for two. According to רבא he has to return the third even though now it has no significant value. Actually this law is a previous משנה. If a robber steals חמץ that becomes אסור בהנאה during פסח and it no longer exists the thief has to pay its value at the time of the theft even though now it is not worth anything.
He stole two lettuces worth a פרוטה and returned one
He is no longer a thief because he possesses less than a פרוטה but he did not fulfill theמצות השבה because he returned nothing. Similarly, a נזיר who left two hairs, the first fell out and the second one he cut so he has no hair left however by cutting only one of the two he did not fulfill the מצוה because he has to cut a minimum of two. The גמרא does not resolve the question concerning one who seals part of a hole in a כלי חרס so that liquids cannot enter does it prevent the כלי from becoming טמא or perhaps since there is still an opening it does become טמא.
The thief swore falsely that he did not steal חמץ after it became אסור בהנאה
רבא was uncertain about this case because his oath was not a denial about a monetary obligation since the חמץ has no value after פסח. On the other hand if stolen from the thief he has to pay its value at the time of the theft.
רבה holds that in a case where the thief when confronted by the victim claims the animal belongs to him and swears he is some kind of שומר even though now he did not deny a monetary obligation only later if something happens to the animal he will be exempt if it happened באונס או מחמת
מלאכה whereas he would not be exempt as a thief he is liable to pay its value at the time of the theft plus the fifth and a קרבן.
The law for thief who was מודה בעיקר
If he returns the stolen item he is exempt for confessing the basic obligation because he stands to gain nothing from the false oath. However if he does not return the stolen item he is not exempt since he stands to gain at a later point from the false oath.
One witness that withholds testimony concerning a lost object under a false oath
The law is argued on the basis of כל הגורם לממון כממון דמי
רבי חנינא – He is exempt from a קרבן for a false oath. He holds that since there is only a possibility that his testimony will benefit the loser because even if he testifies that he is the finder, he can claim something unavoidable happened to it and exempt himself. It is not the same as an oath preventing a certain benefit.
שמואל – He holds דבר הגורם לממון כממון דמי. He obligates him to bring a sacrifice for the false oath since he could have caused him to retrieve his lost object.
