Bava Kamma 95b (צה:) — the Talmud in English

For example, if one robbed a field from another and sold it to someone else, and the purchaser improved it

the purchaser,

and it was removed from his possession

by the robbed owner, who took the land after proving in court that it belonged to him,

when he

the purchaser

collects

from the robber payment for the field that he sold to him with a guarantee—

he collects the principal

that is, he collects even what he paid for the field

from liened property

that was in the seller’s possession at the time of the sale, since the seller wrote in the deed of sale that he was placing a lien on his property, so that he could pay him from it if the land he sold him were taken away.

And the improvement

that the purchaser made in the field, he collects from the seller only

from unsold property,

since the value of the improvement was not a fixed sum.

The reason that he must collect the value of the improvement from the seller is because

the owner of the land came

that is, the owner of the land [the robbed owner

and took his land and its improvement

and took the land together with the improvement made to it and with its produce.

Is that not

referring

to a

purchaser

who was an ignoramus and did not know whether land can be robbed or cannot be robbed,

and if so, he acted unwittingly when he bought it from the robber, as he believed that robbery applies to land; and since this was after despair of recovery, the robber acquired it ,

and even so

although the purchaser had acted unwittingly, nevertheless

he comes

he comes,

the owner of the land, and takes the land and its improvement

and takes the land together with its improvement, while the purchaser does not receive from the robbed owner even the expenses he incurred for the improvement.

And learn from this:

that Rabbi Meir holds that even if the stolen item was in his possession

unwittingly, he too is penalized,

and he is required to return the improvement as well to the robbed owner.

They said

to reject this:

No,

the beraita can be established

with regard to a purchaser who was a Torah scholar and knew

that the robber had no ownership rights in this land; in such a case, he is subject to a penalty requiring him to return the improvement as well to the owner.

Thus, no proof can be brought from this beraita as to whether, according to Rabbi Meir, one who unwittingly held a stolen item and improved it is also penalized and must return the improvement.

Come and hear

to resolve the uncertainty from the Mishna below [100b], where we learned: If one gave wool to a dyer

to dye it for him

with dye

red, and he dyed it

with dye

black,

or he gave it to him to dye with

black, and he dyed it

with dye

red,

meaning that he changed 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.

The precise implication of Rabbi Meir’s statement is that only

the value of his wool, but not

must he pay; however,

the value of his wool and its improvement

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

he does not

have to pay.

And if it enters your mind

that Rabbi Meir

also penalizes one who acted unwittingly,

then according to him

he must give him the value of his wool and its improvement

he must give it to him, since the penalty was imposed with regard to the improvement, which must be given to the owner of the item.

Rather, must one not conclude from this

from the fact that Rabbi Meir did not require the dyer to give the improvement, that only when he improved an item that was not his own

deliberately

does he

penalize

him to give the improvement, but when he improved an item that was not his own

unwittingly, he does not penalize him.

And we conclude: Indeed,

learn from this

that this is Rabbi Meir’s view.

Thus far, the Gemara explained Rabbi Meir’s position. It will now explain the positions of Rabbi Yehuda and Rabbi Shimon in the beraita there.

We learned in that same beraita:

Rabbi Yehuda says: The stolen item returns as it is

in its present state after the change. He additionally pays the value of the shearing and the offspring as they were worth at the time of the robbery, but he does not pay for the improvement of the shearing or the offspring that grew while in his possession, since they changed and now belong to him; he is liable only for payment for the stolen item as it was at the time of the robbery.

Rabbi

Shimon says: We view it

the stolen item

as though it had been appraised

[valued]

for him in money,

that is, he pays according to its appraised value at the time of the robbery.

What is the difference between them

what is the difference between these two positions? For, apparently, according to both of them, he need not give the improvement to the robbed owner, and it remains with him.

Rav Zevid said: They disagree with regard to improvement attached to the stolen item,

that is, when the stolen item improved while in the robber’s possession and he has not yet removed the improvement from it—for example, an empty cow became pregnant, or it is now bearing a fleece. Rabbi Yehuda and Rabbi Shimon disagree concerning the status of this improvement.

Rabbi Yehuda holds:

that this improvement

belongs to the robbed owner,

as Rabbi Yehuda’s statement in the beraita can be understood to mean that the stolen item returns as it is to its owner, whether it improved or depreciated: it returns in the condition in which it is at the time of the court claim. If it depreciated—for example, if the robber sheared it or it gave birth—he pays for the depreciation, since the robbed owner also claims from him the value of the shearing and the offspring that he robbed from him.

Rabbi Yehuda disagrees with Rabbi Meir in this regard. Rabbi Meir said that even improvement that was removed from the stolen item must be given to the owner of the stolen item. Although the robber acquired the shearing and the offspring through the change, the improvement is viewed as though it were still attached to the stolen item, and the item is viewed as though it had not been sheared or given birth; he pays for the entire improvement by virtue of the penalty.

Rabbi Yehuda said to him that only improvement currently attached to the stolen item returns to the robbed owner. If the robbed owner again claims the shearing and offspring that existed at the time of the robbery, the robber must pay their value, since he acquired them through the change. But if the improvement is still attached to the stolen item, it returns to the robbed owner.

And Rabbi Shimon holds:

that even improvement currently attached to the stolen item

belongs to the robber,

and the robber takes it, since a change effects acquisition; he pays only the monetary value according to the appraisal of the stolen item at the time of the robbery.

Rav Pappa said

to explain the dispute between Rabbi Yehuda and Rabbi Shimon in another manner:

Everyone

according to all, both Rabbi Yehuda and Rabbi Shimon—

agrees that improvement attached to the stolen item belongs to the robber,

since a change effects acquisition. And what Rabbi Yehuda said in the beraita, that the stolen item returns as it is, means that it returns as it was at the time of the robbery, without the improvement.

And here,

with regard to payment to the robber for the improvement he made to the stolen item, whether he should be paid

one-half, one-third, or one-quarter

of the improvement, in accordance with the local custom for those who accept animals in order to improve them for such an extended period,

they disagree

they are divided.

Rabbi Yehuda holds: All of the improvement attached to the stolen item belongs to the robber.

And Rabbi Shimon holds:

only

one-half, one-third, or one-quarter

of the improvement

does the robber take,

as he is considered like one who took the animal in order to care for it and improve it. Therefore, he does not receive all the profits, but only his customary share in that place for this type of work.

The Gemara raises an objection to Rav Pappa’s explanation of the dispute between Rabbi Yehuda and Rabbi Shimon from our Mishna.

We learned

above, 93b:

If one robbed a cow and it became pregnant in his possession and gave birth,

and likewise if one robbed

a ewe and it became laden in his possession

with wool

and he sheared it—

he pays as it was worth at the time of the robbery

without the fetus or the wool.

The precise implication of the Mishna is that only if it

gave birth—

no,

[yes,] he pays as it was worth at the time of the robbery. But if it

did not give birth

and it is still pregnant—

it returns as it is

it returns in its present state.

If so,

it works out well according to Rav Zevid, who said that improvement attached to the stolen item

which the robber has not yet removed, this improvement

belongs to the robbed owner according to Rabbi Yehuda.

If so,

this

Mishna

is according to whom

whose view does it express? It is the view of

Rabbi Yehuda.

But according to Rav Pappa, who said

that according to both Rabbi Yehuda and Rabbi Shimon, improvement still attached to the stolen item

belongs to the robber,

there is a difficulty:

this

Mishna

is according to whom

whose view does it express? It is

not

the view of

Rabbi Yehuda, nor

the view of

Rabbi Shimon,

and certainly it is not the view of Rabbi Meir, since the first clause of the Mishna states: If one robbed a pregnant cow and it gave birth, or robbed a laden ewe and sheared it, he pays the value of a cow standing ready to give birth, and so on; whereas according to Rabbi Meir, he pays the value of the shearing and offspring as they are worth now, at the time of the return.

And we answer:

Rav Pappa could have said to you: The same law applies even if it did not give birth; he too

only

pays as it was worth at the time of the robbery,

without the improvement that it underwent while in the robber’s possession.

And the fact that it teaches

in the Mishna

“gave birth,”

is

because, since the first clause states

a case of

giving birth

in order to teach us that he does not pay the current value of the shearing and offspring, but rather the value of a cow standing ready to give birth , therefore

it likewise states in the latter clause

a case of

giving birth,

although, in fact, in the latter clause as well, even when it merely became pregnant and did not give birth, the robber takes the improvement for himself.

If so, the Mishna accords with Rav Pappa’s explanation, whether it follows Rabbi Yehuda’s view or Rabbi Shimon’s.

It was taught

in a beraita

in accordance with his view

according to the position

of Rav Pappa:

For we learned:

Rabbi Shimon says: We view it as though it had been

the stolen item

appraised

[valued]

for him in money, at one-half, one-third, or one-quarter.

Thus, the beraita explicitly explains in accordance with Rav Pappa that Rabbi Shimon holds that the robber takes only one-half, one-third, or one-quarter of the improvement, since he is considered like one who took the animal in order to care for it and improve it. Therefore, he does not receive all the profits, but only his share, as is customary in that place for payment for this type of work.

Rav Ashi said: When we were in the academy of

when we were studying in the academy of

Rav Kahana, we raised

this question:

With regard to Rabbi Shimon, who says that the robber takes only one-half, one-third, or one-quarter,

when

we remove him

when we pay the robber for the improvement—

do we remove him with money

do we pay him his share in money,

or perhaps he takes from the meat

or perhaps he takes his share from the meat itself?

And we resolved

the uncertainty

from that which Rav Naḥman said in the name of Shmuel: Three are appraised

[valued]

for them

the

improvement

that they made,

and they are removed with money,

paying them for the improvement in money.

And these are they:

a. A

firstborn

appraises

for a

non-firstborn

brother

the improvement that he made to an inheritance and pays him the value of the improvement in money. If both brothers worked on jointly owned inherited property that they inherited from their father, and afterward divided the inheritance between them, the firstborn [who receives a double portion] must return to the non-firstborn brother half of the improvement made to the portion of property that he inherited by virtue of his firstborn status, beyond his brother’s share. For example, if they improved the inheritance by twelve zuz, and when the firstborn took his double portion of the inheritance he received improvement worth eight zuz in his share, it follows that he received four zuz of the improvement in the firstborn portion, and he must give half of it to the non-firstborn brother, namely two zuz, because he does not take a double portion of the improvement made by the brothers, but only of the land itself. When the firstborn pays the non-firstborn brother for the improvement, he need not give him a portion of the land; if the firstborn wishes, he may pay him in money.

b.

And a creditor to a purchaser,

a creditor who collects his debt from property liened to him, which the borrower sold to another person, has no right to collect his debt from the improvement that the purchaser made to the land. Rather, he pays the purchaser in money for the improvement he made to the land, and need not give him any part of the land itself.

c.

And a creditor to orphans,

when he collects from their father’s property for a debt owed by their father, he has no right to collect his debt from the improvement made to the property after the father’s death. Rather, he pays the orphans in money for the improvement made to the property, and need not pay them with property itself.

The same law applies to a robber who made an improvement: the robbed owner may pay him for the improvement in money, and need not give him any part of the improvement itself.

The Gemara now discusses Shmuel’s statement:

Ravina said to Rav Ashi: Did Shmuel say

that

a creditor to a purchaser gives him

payment for the

improvement

that he made to the land?

But Shmuel said: A creditor collects the improvement

and returns nothing to the purchaser!

He said to him

Rav Ashi:

This is not difficult:

Here,

where Shmuel said that he does not collect the improvement toward his debt, the case is

with improvement that reaches the shoulders,

meaning improvement that the purchaser developed until its growth was complete, so that it is already ripe and can be carried away on one’s shoulders .

And here,

where Shmuel said that he collects the improvement, the case is

with improvement that does not reach the shoulders,

as its growth is not yet complete, and it passes entirely into the creditor’s possession.

He said to him

Ravina:

But it is an everyday practice, and Shmuel collects

and would collect

Shmuel

from the purchaser for the creditor

even improvement that reaches the shoulders!

He said to him

Rav Ashi:

This is not difficult: