Bava Kamma 96b — the Talmud in English

Is it not the same law with regard to the splitting of

the tiomet, through which the lulav becomes disqualified? And since the lulav becomes disqualified through this, is it considered a change to acquire it?

And we reject this:

No,

the tiomet

that is different

from a case where the tiomet splits; only if the tiomet is removed does the lulav become disqualified for its mitzva,

for it is thereby lacking,

but if the tiomet splits, it does not become disqualified, since nothing is lacking from it.

And since when the tiomet splits the lulav does not become disqualified, it is not considered a change to acquire it.

There are those who say

that the words of Rabbi Yehoshua ben Levi were stated in a somewhat different manner, and the uncertainty can be resolved from his words:

And this is how they learn it:

Come and hear: For Rabbi Matun said in the name of Rabbi Yehoshua ben Levi: If the tiomet splits, it becomes as though it was removed, and it is disqualified.

Learn from it

that it is proven from his words that if the tiomet splits, it is considered a change to acquire it, since the lulav thereby becomes disqualified for its mitzva.

Rav Pappa said: In the case of one who stole dirt from another and made it into a brick,

one who stole earth from his fellow and made a brick from it—

he does not acquire it

through this change.

What is the reason?

Since

he can return and make it dirt,

as he can again turn it into earth.

And if he stole

a brick and made it dirt,

a brick and made earth from it—

he acquires it

through this change.

What can you say

about this?

Perhaps he can return and make it a brick,

perhaps he can again make a brick from the earth.

This is not considered returning the stolen object to its original state, because

this is a different brick,

and a new appearance has come here;

this is not the previous brick, but rather it is another brick, which required separate repair and kneading, and it is different from the previous one, because it is impossible to make it precisely identical, and each brick has its own particularity.

And Rav Pappa said: In the case of one who stole a bar of silver from another and made coins,

one who stole a piece of silver metal and made coins from it—

he does not acquire it

through this change.

What is the reason?

Because

he can return and make them a bar of silver;

he can again make a piece of silver from them.

And if he stole

coins and made them a bar of silver,

coins and made a piece of silver from them—

he acquires it

through this change.

What can you say

about this?

He can return and make them coins,

he can again make coins from it.

This is not considered returning the stolen object to its original state, because these coins are new, and

a new appearance has come here.

If the coins he stole were

blackened,

black coins that appeared old,

and he made them new,

and made them new by cleaning and polishing them—

he does not acquire them,

because this is a change that returns to its original state, since they again become old and black.

But if the coins were

new,

new,

and he made them blackened,

and made them black—

he acquires them

through this change.

What can you say

about this?

He can return and make them new,

he can return and renew them.

This is not considered returning them to their original state, because

it is clearly known that they are blackened,

their blackness is recognizable, and it is impossible to renew them completely so that no trace of their blackness remains. Therefore, the change he made in them was an irreversible change.

We learned in the Mishna:

This is the general rule: All robbers pay according to the time of the robbery.

“This is the general rule”—what does it come to include?

What case that has not yet been mentioned in the Mishna does “this is the general rule” come to include?

It comes to include this:

it comes to include the following case:

As Rabbi Ela said: If one stole a lamb and it became

in the robber’s possession over time

a ram,

and likewise if he stole

a calf and it became

in his possession

an ox—

a change occurred in his possession and he acquired it

with regard to this matter, that if he

slaughtered and sold it—

he slaughters his own, and he sells his own,

and therefore he is exempt from the payment of fourfold or fivefold, which a thief is liable for when he slaughters or sells an ox or a sheep; he is liable only for double payment for the act of the theft.

An incident:

There was a certain man who stole a team of oxen from his fellow.

There was a person who stole a pair of oxen from his fellow,

he went and plowed with them, sowed seed with them,

he went and plowed with them and sowed seed with them,

in the end he returned them to their owner,

and in the end he returned them to their owner.

It came

this incident

before Rav Naḥman, and he said to them: Go and assess the improvement that was improved

go and assess the increase that the robber caused in his field through the stolen oxen, so that he would pay the victim of the theft for it.

Rava said to him:

But did only

the oxen improve, and did the land not improve?

Did the oxen alone improve, while the land did not improve?

He said

Rav Naḥman said to him:

Did I say that the entire amount should be assessed?

Did I say that it should be assessed and all the increase given to him? I said only

half

of the increase should be paid.

He said to him

Rava said to him:

Ultimately, it is a stolen object, and it is returning as it was,

and it must be returned to the victim of the theft as he received it.

For we learned

as we learned in our Mishna:

All robbers pay according to the time of the robbery,

so why did Rav Naḥman obligate the robber to pay for the increase that he produced with the stolen object?

He said to him

Rav Naḥman said to him:

Did I not say to you,

did I not say to you:

When I sit in judgment, do not say anything to me

when I am sitting in judgment to issue a ruling, do not say anything to me to ask about or challenge my rulings.

For Huna, our colleague, said about me:

our outstanding colleague:

I and King Shapur are brothers in judgment,

I and King Shapur [which is an appellation for Shmuel] are considered brothers in judgment.

That is, in matters of law I am as important as Shmuel himself.

And here too I had a reason for the matter, because

this man is an old-time robber, and I want to penalize him,

this person was accustomed to robbery, and I wanted to penalize him; therefore I said that he should pay even for the increase, although he is not liable for it according to the fundamental law.

Mishna:

a.

If one stole an animal and it aged, or slaves and they aged,

a change occurred in his possession, since they are not fit for work as they were at the time that he stole them, and the robber acquired them for himself. Therefore, he cannot say to the owners, “Here is yours before you”; rather

he pays

them their monetary value

according to the time of the robbery.

Rabbi Meir says:

Slaves are not acquired by the robber through a change, since their legal status is like that of land, which cannot be robbed, and they are not acquired by the robber through a change. Therefore,

with regard to slaves, he says to him: Here is yours before you.

b.

If one stole a coin and it cracked,

a perceptible change occurred in it, and the robber acquired it through the change; or if he stole

produce and it spoiled,

or he stole

wine and it turned sour,

in all these cases the change is perceptible, and therefore the robber acquired it for himself, and

he pays according to the time of the robbery.

But if the change was not perceptible, such as if he stole

a coin, and it was invalidated,

the coin by the government, such that this change is not perceptible in the body of the coin; or if he stole

teruma and it became impure, leavened bread and Passover passed over it, an animal and an offense was committed with it

that disqualifies it as an offering, such as when the animal was sexually violated or was worshiped as idolatry;

or it became disqualified from upon the altar,

because a blemish occurred in it

or it was

going out to be stoned,

because the robber did not guard it and it went out and killed a person, for which it is liable to be killed—in all these cases the robber is exempt from paying its monetary value. Rather, he

says

the robber to the victim of the theft:

Here is yours before you!

Gemara:

Rav Pappa said:

This statement that the tannay taught in the Mishna—that the robber acquires an animal that aged through a change—

not

did the tannay intend by saying

“it aged”

that the animal

actually aged,

and the change occurred throughout its entire body,

but even if it weakened

the animal, so that only a partial change occurred in it, the robber acquired it through the change, and he must pay its value according to the time of the robbery.

And the Gemara wonders:

But we learned “it aged,”

and not “it weakened”?!

And it answers: The intention of the tannay in the Mishna is to say

“it weakened,”

but the tannay brought an example of “it weakened”: not every weakening causes the animal to be acquired by the robber, but only

such as

the weakening of

“it aged,” which does not return to health;

the animal does not recover from it after it occurs. But if it was a weakening from which the animal could recover, it is not considered a change.

Mar Kashisha, son of Rav Hisda, said to Rav Ashi: This is what they say in the name of Rabbi Yoḥanan: Even if one stole a lamb and it became a ram,

or he stole

a calf and it became an ox,

such that the change occurred by itself, and nothing was diminished from the animal, but rather it grew and improved,

a change occurred in his possession, and he acquired it

the robber acquired it for himself, and he pays only the value of a lamb or the value of a calf.

And if

he slaughtered

the animal,

and sold

it, or sold it to another, he is not liable for fourfold or fivefold payment as is a thief who slaughtered or sold an animal, since he acquired it through the change, and the animal

is his that he slaughters,

and the animal

is his that he sells.

He said to him: Did I not say to you,

did I not say to you,

do not exchange

the names of the

men,

the transmitters of the teachings! For

that

law that you stated in the name of Rabbi Yoḥanan,

he did not state it; rather,

it was stated in the name of Rabbi Ela!

We learned in the Mishna:

Rabbi Meir says: With regard to slaves, he says to him: Here is yours before you!

Rav Hanina bar Avdimi said in the name of Rav: The halakha is in accordance with Rabbi Meir.

And the Gemara wonders:

And Rav,

does he

abandon the Sages

does he abandon the opinion of the Sages,

and act in accordance with Rabbi Meir?

They said

to answer:

Because a beraita was taught in the opposite manner.

For in contrast to the Mishna, we learned the two opinions in the beraita in the reverse manner: the Sages are the ones who hold that with regard to slaves he says to him, “Here is yours before you.” Therefore, Rav ruled in accordance with the Sages in the beraita, which is the opinion of Rabbi Meir in the Mishna.

But the Gemara raises a difficulty against the answer:

And Rav, does he abandon the Mishna,

does he abandon the manner in which the Mishna presented the dispute,

and act in accordance with the beraita?!

And because of this difficulty, the Gemara gives another answer:

Rav also taught the Mishna itself in the opposite manner.

In our Mishna itself, Rav taught the opinions in the reverse order, as in the beraita, so that there would be no contradiction between the Mishna and the beraita, and he ruled in accordance with the Sages.

And the Gemara discusses:

And what is Rav’s reason,

what is his reason

for reversing the Mishna because of

because of the

“beraita”?

On the contrary! Let us reverse the beraita because of the Mishna.

They said

to answer,

Rav, too, was taught the Mishna in the opposite manner

by his teachers.

Rav’s teachers taught him the Mishna in the reverse manner, and Rav did not reverse the opinions because of the beraita.

And another answer:

And if you wish, say:

Rav indeed reversed the Mishna because of the beraita, and why he did so should not be difficult, since

when he does not reverse

a Mishna because of a beraita, that applies specifically to

one

Mishna

because of one

beraita. But

one

Mishna

because of two

beraitot, so

he does reverse

it. And here we find two beraitot that are contrary to the Mishna, for we find another beraita that teaches the opinions in reverse of the Mishna:

For it was taught: One who exchanges a cow

that is pregnant

for a donkey.

That is, the owner of the cow pulled the donkey toward himself, thereby effecting an exchange acquisition to acquire the donkey and to transfer his cow [which was not present at the place of the acquisition] to the owner of the donkey [as the exchange for the donkey that he pulled toward himself].

And it gave birth

the cow gave birth to its fetus where it was, and there are no witnesses who know whether it gave birth after the acquisition, in which case the owner of the donkey acquired a pregnant cow and the offspring belongs to him, or whether it gave birth before the time of the acquisition, in which case the owner of the donkey acquired a cow that was not pregnant and the offspring does not belong to him.

And likewise one who sells

his maidservant

the Canaanite maidservant,

and she gives birth.

If

this one,

one of them,

says

with a definite claim:

She gave birth in my possession,

and the offspring is mine.

And the other,

the second,

is silent, he acquires it,

the one making the definite claim that she gave birth in his possession acquires it, according to the law of a definite claim and an uncertain claim, where the definite claim prevails.

And if

this one says, “I do not know,” and this one says, “I do not know,” they divide it.

And if

this one says, “It is in my possession,”

it calved,

and this one says, “It is in my possession,”

that is, both are making a definite claim, behold, there is here a partial admission by the seller, which obligates him by Torah law to swear concerning all the rest with the oath of “one who admits part.” For the buyer claims from him the cow and its offspring, whereas the seller admits part to him, concerning the cow, and denies the rest, concerning the offspring.

And therefore,

the seller shall swear that it calved in his possession,

and then he will acquire the offspring.

And we do not say that the buyer should swear concerning his claim that it calved in his possession, and he should take the offspring, even though he too is making a definite claim:

For all those who swear by Torah law swear and do not pay; these are the words of Rabbi Meir.

And the Sages say: one does not swear concerning either slaves or land,

rather, the offspring remains in the presumptive possession of the owner of the cow, until the buyer brings proof that he purchased the offspring from him.

And if so, we have found an additional beraita that holds like the first beraita, that the Sages are the ones who hold that slaves have the status of land, in opposition to the position of the Mishna, and therefore Rav reversed the opinions in the Mishna. And Rav decided in accordance with the Sages. But the Gemara still wonders: if so, that Rav reversed the opinions in the Mishna because of the two beraitot, what is

this

that Rav adopted,

“The halakha is in accordance with Rabbi Meir”?

But

“The halakha is in accordance with the Rabbis,” he should have said

for Rav to say! For Rav reversed the words of the Mishna and made it correspond to the words of the beraita, that the Sages are the ones who equate the law of a slave with the law of land!

And the Gemara answers:

This is what

Rav says: I myself recite the Mishna according to my teachers, who recited the Mishna in accordance with the words of the beraita, and I rule the halakha in accordance with the Sages.

But you,

according to what you have reversed

the opinions in the Mishna,

and recited it,

and you have recited the Mishna in an inverted form, that according to Rabbi Meir slaves have the status of land, according to you one must say:

“The halakha is in accordance with Rabbi Meir.”