Making restitution for a "missing" ox: a question on the Mishna

Question

There are four classes of people who are entrusted with items of value (Bava Metzia 7:8, Shevuot 8:1): one who looks after it as a favour, one who does so for a fee, one who borrows it and one who pays money to rent/hire it. Of these four, the one who looks after it as a favour to the owner is the least responsible for what subsequently happens to it, but his having been entrusted with it still denotes some responsibility.

The Mishna (Shevuot 8:3) discusses a case in which a man's ox is being looked after as a favour, but when the owner asks to get it back the guardian swears that it went missing. Witnesses are brought and it is demonstrated that the guardian had actually eaten the ox, making him liable to the owner for the ox's value. Such is not the case if the witnesses testify to his having "stolen" the ox, in which case he is liable to the owner for twice the ox's value, in accordance with the laws of making restitution for theft. Should they testify that he not only stole the ox but that he also slaughtered it, he is liable to the owner for five times the ox's value.

These laws are discussed in more detail in Bava Qama 7 (and a similar scenario is brought in Bava Qama 9:7-8), but the circumstances in this particular mishna are strange to me. A guardian who is discovered to have eaten the ox is liable for the principal only, while one who is discovered to have "stolen" the ox and to have slaughtered it is liable for five times that amount. My question is: how is the consumption of somebody else's ox not in itself an act of theft? Furthermore, how is it possible to consume somebody else's ox without having slaughtered it first?

Answer 1

Your question is so good that it is one of the questions of the Gemara in BK 106B

איתיביה רבי חייא בר אבא לר' יוחנן היכן שורי נגנב משביעך אני ואמר אמן והעדים מעידים אותו שאכלו משלם תשלומי כפל והא הכא דאי אפשר לכזית בשר בלא שחיטה וקתני משלם תשלומי כפל תשלומי כפל אין תשלומי ד' וה' לא

1. The context of this phrase is the Gemara test to refute an opinion.
2. The opinion that the Gemara tries to refute is that of Rabbi Aba Bar Chya in the name of Rabbi Yochanan.
3. This view is that the argument of steal on the part of a guardian is liable not only double but quadruple and quintuple payment.
4. In fact, he said, the "Toen Taounat Ganav" is fully the equivalent of "Ganav".
5. • The Gemara will bring an against-proof against this claim. This is Rabbi Chia Bar Abba himself who will attack Rabbi Yochanan.
   • This against-proof is constituted by a Tanaym's teaching.
   • Rashi and Tosfot (Shavuot 49A) identifying it as being the Mishnah Shevuoth 8, 3.
   • Rabbi Chia B.A. said if the guard (who claims that he was stealing) has eaten a piece, he necessarily Shitee before (he eats kosher!).
   • This is exactly your question.
6. Rabbi Yohanan will subsequently make Okimtoth on this Mishnah.
7. This is the Halacha (see Mishne Torah, Sefer Nezikin, Hilchoth Geneva, Halacha 1)

Finally you're right! In Tanaath Ganav Bepikadon => Tashlumey 4 & 5