Bava Kamma 95a (צה.) — the Talmud in English

Here,

in the Tosefta, it is referring

to an existing stolen object

for which the Sages did not institute this enactment; therefore, he must return it even if he does not recognize the owners. Whereas

here,

in the aforementioned beraita, where we learned that one does not accept payment from them, it is referring

to a case where the stolen object no longer exists.

And we raise a difficulty: Above, they cited a beraita that was taught in the days of Rabbi: There was an incident involving a robber who wished to repent, and his wife said to him that if he repented even the belt would not be his. Consequently, the Sages instituted that, as a matter of law, he need not return the stolen item,

but

yet

the belt

was stolen,

as it was an existing stolen object,

and it was regarding this that the Sages instituted that he need not return it. If so, how can Rav Naḥman say that their enactment applied only where the stolen object no longer existed?

And we answer:

What is the meaning of “the belt”?

It does not mean that the belt itself had been stolen, but rather

the value of the belt,

whose value was to serve as payment for the stolen item, and regarding this the Sages instituted that he need not pay for the stolen item.

And we raise a difficulty:

Wherever the stolen object exists, did

they not make

an enactment of the Sages

for the robber that he need not return it?

But what of a beam

[a beam]

which was an existing stolen object, and we learned

in tractate Gittin (55a): Rabbi Yoḥanan ben Gudgada testified

concerning a stolen beam

a beam that a person stole from another,

that he built it

the robber

into a large building

—into a large structure—the Sages instituted

that he take

the owner of the beam

its value,

and the robber is not required to return the beam itself,

because of the enactment for penitents!

It is explained there in the Mishna that there is an enactment for penitents even with regard to an existing stolen object.

And we answer:

That case is different

with regard to the beam, which the robber placed inside a building that he constructed,

since there is a loss involving the building,

as the entire building would have to be demolished in order to remove the beam,

the Sages rendered it as nonexistent

the Sages regarded the beam as though it did not exist.

We learned in the Mishna:

If one stole a pregnant cow and it gave birth,

he pays the victim of the robbery the value of a cow standing ready to give birth, whereas the robber acquires the offspring through a change.

The Sages taught

in a beraita:

If one stole a ewe and sheared it,

and likewise, one who stole

a cow and it gave birth—

he pays for it, for its shearings, and for its offspring,

as he must return everything he took from it and all the enhancement it produced. These are

the words of Rabbi Meir.

Rabbi Yehuda says: The stolen object returns in its present form

as it is now, shorn, and he adds payment for the value of the shearings and the fetus as they were worth at the time of the robbery. He does not pay for the enhancement of the shearings and the offspring that occurred while they were in his possession, because they underwent a change and now belong to him; he is liable only to pay for the stolen object as it was worth at the time of the robbery.

Rabbi Shimon says: We regard it

the stolen object

as though it had been appraised

[valued]

by him in money,

meaning: He pays according to its assessed value at the time of the robbery. The Gemara will explain below the subject of the dispute between Rabbi Yehuda and Rabbi Shimon.

A dilemma was raised before them: What is the reasoning of Rabbi Meir,

who holds that the robber must return all the enhancement produced by the stolen object and everything taken from it?

Is his reasoning

because he holds that a change does not remove the object from its place,

and even after the change the stolen object still belongs to the victim of the robbery, and therefore he must return the enhancement?

Or perhaps

perhaps

in general

in other contexts

a change effects acquisition, and here it is a penalty that he imposes

upon the robber, requiring him to return the enhancement so that the sinner should not profit?

What practical difference is there

whether Rabbi Meir’s reasoning is that this is a penalty or that the change does not effect acquisition?

There is a practical difference

in a case

where the object did not improve but, on the contrary,

it deteriorated,

for if Rabbi Meir’s reasoning is that he holds that a change does not remove the object from the ownership of the victim, then even when it deteriorated the robber returns the stolen object in its present form. But if Rabbi Meir’s reasoning is that this is a penalty, then where it deteriorated, since there is no reason to penalize him, the robber acquires the object because it changed, and he must pay for it according to its value at the time of the robbery.

Come and hear:

The Gemara attempts to resolve the dilemma from the following Mishna, where we learned:

If one stole an animal and it grew old

while in the robber’s possession, or stole

slaves and they grew old

in his possession and their value decreased—

he pays as at the time of the robbery,

according to their value at the time of the robbery, since he acquired them through a change.

Rabbi Meir says: With regard to slaves

that he stole and that grew old,

he says to him

the robber says to the victim of the robbery:

Here is yours before you,

as he returns them in their present condition, because slaves have the legal status of land, which always remains in the possession of its owners; they are not acquired by the robber through a change, and they grew old while remaining under the ownership of their owners.

But an animal,

which does not have the legal status of land, Rabbi Meir holds that if it changed and its value decreased, he must pay the victim of the robbery money

according to its value at the time of the robbery.

And if it enters your mind that Rabbi Meir holds that a change does not remove the object from its place,

then

even an animal as well

if it deteriorated, he should return it in its present condition.

Rather, must one not conclude from this: Rabbi Meir holds that a change effects acquisition,

and therefore, when the stolen object deteriorates, only slaves, whose legal status is that of land and who are not acquired through a change, are returned in their present condition. But an animal, whose legal status is not that of land, is acquired through a change, and he must pay the owners money according to the animal’s value at the time of the robbery.

And here,

where it improved, the reason Rabbi Meir said that the robber does not acquire the enhancement and must return it is

that it is a penalty that he imposes,

so that the sinner should not profit.

This is seemingly what can be proven from the Mishna.

The Gemara rejects this:

They said,

they said that no proof can be brought from this Mishna, since it is possible to say that

Rabbi Meir

was speaking to them according to the position of the Rabbis:

This is how his words may be understood:

According to me,

according to my position,

a change does not effect acquisition, and even an animal as well

is returned in its present condition.

But according to you, who say

according to your position, as you hold that

a change effects acquisition, at least concede to me concerning slaves, who are comparable to land,

at least concede to me concerning slaves, whose legal status is that of land,

and land cannot be stolen

and a change is ineffective to effect its acquisition; therefore, their law is that they are returned in their present condition.

And the Rabbis said to him: No; slaves are comparable to movable property,

their legal status is that of movable property, which can be stolen and with regard to which a change is effective to effect acquisition. Therefore, the Rabbis hold that when they change and deteriorate, he must pay money according to their value at the time of the robbery.

If so, this Mishna cannot resolve what Rabbi Meir holds.

Come and hear:

To resolve the dilemma from another Mishna that we will learn below (100b): If one gave wool to a dyer

to dye it for him

with dye,

red and he dyed it

with

black,

or he gave it to him to dye it

black and he dyed it

red,

meaning that he deviated from what the owner of the wool had stipulated with him.

Rabbi Meir says: He gives him

the dyer gives him

the value of his wool.

And it is precise from Rabbi Meir’s statement that only

the value of his wool, and nothing else,

must be paid, but

the value of his wool and its enhancement,

the enhancement, the increase in value resulting from the dyeing,

not

must be paid.

And if it enters your mind that Rabbi Meir holds that a change does not effect acquisition,

then

the value of his wool and its enhancement

he should have to give

to him,

he must give it to the owner of the wool, since the wool remains the property of its owner even after the dyer changed it!

Rather, must one not conclude from this

from the fact that Rabbi Meir said that he must pay only the value of his wool,

that Rabbi Meir holds that a change effects acquisition,

and since the dyer acquires the wool through the change, he pays only the value of the wool as it was worth before the change.

And here,

where Rabbi Meir said, with regard to one who stole an animal and sheared it and it gave birth, that he must return the enhancement, his reason is

that it is a penalty that he imposes

upon the robber, so that he should not benefit from the stolen object through its shearings and offspring. But the dyer was not penalized, since he is not a robber and is not a sinner, but merely acted unwittingly.

The Gemara concludes: Indeed,

conclude from this

that this is Rabbi Meir’s position. Consequently, according to Rabbi Meir, when the stolen object deteriorates, he cannot return it in its present condition; rather, he must pay money according to its value at the time of the robbery.

There are those who say:

There are those who say:

This was not our dilemma,

we did not doubt whether Rabbi Meir holds that a change effects acquisition or not.

Since Rav reversed

because Rav later (96b) reversed the order of the Mishna there

and taught

and recited it as follows:

If one stole a cow and it grew old, or slaves and they grew old—

he pays as at the time of the robbery;

these are

the words of Rabbi Meir. And the Rabbis say: With regard to slaves,

whose legal status is that of land,

he says to him, “Here is yours before you.”

And according to this version that Rav recited,

it is certain that according to Rabbi Meir

a change effects acquisition,

since according to Rabbi Meir, when the stolen object deteriorates, he does not return it in its present condition, even if it was a slave. His reason is certainly that a change effects acquisition.

And here,

with regard to one who stole a pregnant cow and it gave birth, Rabbi Meir’s reason for requiring him to return the enhancement is certainly

that it is a penalty that he imposes upon him,

the robber.

Rather,

when we raised our dilemma

concerning Rabbi Meir’s statement,

this is what we raised as a dilemma:

Does Rabbi Meir hold that

when he penalizes

the robber, he does so only when the stolen object was in his possession

intentionally, but

if the stolen object was in his possession

unwittingly,

for example, if he took it from a robber and it improved, without knowing that it was stolen,

he does not penalize

him in such a case?

Or perhaps

perhaps

even

if the stolen object was in his possession

unwittingly

and it improved,

he also penalizes

him, requiring him to return the enhancement to the victim of the robbery?

Come and hear:

The Gemara attempts to resolve this from a beraita, as it was taught:

Five

things

are collected

only

from

assets

that are unencumbered,

which remain free in the possession of their owners, and not from encumbered assets that the owners sold after they had already become liable for these matters.

And these are they:

a.

Produce and the enhancement of produce,

for example, if a person stole a field from another and sold it to someone else, and the purchaser improved it by fertilizing and plowing it, and afterward the victim of the robbery removed it from the purchaser’s possession together with the improvement he had made and the produce in it, the purchaser now comes back against the seller, who sold it to him with a guarantee, to collect from him. He collects the principal from encumbered assets, but the enhancement and produce he collects only from unencumbered assets, since their amount was not fixed, and the purchasers could not have taken care to avoid purchasing from the seller assets corresponding to the enhancement and produce.

b.

And one who undertook

at the time of the betrothal

to support his wife’s son and his wife’s daughter,

who were hers from previous marriages; they too cannot collect from encumbered assets, since the amount of the support was not fixed and was not written in the document.

c.

And a bill of debt

[a debt document]

that does not

have

a guarantee written in it,

meaning that it is not written in the document that the assets are encumbered for repayment of the debt.

d.

And a woman’s marriage contract that does not

have

in it

in the marriage contract

a guarantee,

that the assets are encumbered for payment of the marriage contract.

And from the fact that the beraita states that a document that does not contain a guarantee cannot be collected from encumbered assets, it is evident that if a condition of a guarantee encumbering the assets for repayment was not written in the document, we do not say that this was a scribal error, that the scribe forgot to write the guarantee, and that since it was an error it is as though it had been explicitly written. Rather, a document in which no guarantee is written cannot be used to collect from encumbered assets.

Who is the one whom you heard say

which tanna have we heard hold that a condition of

a guarantee

on the assets, when it was not written in the document,

is not a scribal error?

Rabbi Meir

holds this way in Bava Metzia (12b); if so, he is the tanna who taught this beraita.

And it teaches

in a beraita: also

produce and the increase in value of produce.

What are the circumstances of the increase in value of produce?