Babylonian Talmud: Tractate Baba Kamma

Folio 66a

indicates 'them' and not their offsprings.¹  And Beth Hillel? — They reply that you can understand the two points from it: 'Them' — and not their transformations; 'them' — and not their offsprings. But as to Beth Hillel surely it is written Gam? — Gam presents a difficulty according to the view of Beth Hillel.²

Their³  difference extends only so far that one Master⁴  maintains that a change transfers and the other Master⁵  maintains that a change does not transfer ownership, but regarding payment they both agree that the payment is made on the basis of the original value, even as it is stated:⁶  'He has to make double payment or fourfold and five-fold payments on the basis of the value at the time of the theft.' Are we to say that this [Baraitha] confutes the view of Rab in the statement made by Rab that the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case comes into Court? — Said Raba: [Where he pays with] sheep, [he pays] in accordance with the original value,⁷  but [where he pays with] money [he pays] in accordance with the present value.

Rabbah said: That a change⁸  transfers ownership is indicated in Scripture and learnt in Mishnah. It is indicated in Scripture in the words, He shall restore the misappropriated object which he violently took away.⁹  What is the point of the words 'which he violently took away'? — It is to imply that if it is still as [it was when] he violently took it¹⁰  he shall restore it, but if not, it is only the value of it that he will have to pay.¹¹  It is learnt [in the Mishnah]: If one misappropriates timber and makes utensils out of it, or wool and makes it into garments, he has to pay in accordance with the value at the time of robbery.¹²  Or as also [learnt elsewhere]: If the owner did not manage to give the first of the fleece to the priest¹³  until it had already been dyed, he is exempt,¹⁴  thus proving that a change transfers ownership. So has Renunciation¹⁵  been declared by the Rabbis to transfer ownership. We, however, do not know whether this rule is derived from the Scripture, or is purely Rabbinical. Is it Scriptural, it being on a par with the case of one who finds a lost article?¹⁶  For is not the law in the case of a finder of lost property that, if the owner renounced his interest in the article before it came into the hands of the finder the ownership of it is transferred to the finder? So in this case, the thief similarly acquires title to the article as soon as the owner renounces his claim. It thus seems that the transfer is of Scriptural origin! Or are we to say that this case is not comparable to that of a lost article?¹⁶  For it is only in the case of a lost article that the law applies, since when it comes into the hands of the finder,¹⁷  it does so lawfully, whereas in the case of the thief into whose hands it entered unlawfully, the rule therefore might be merely of Rabbinic authority, as the Rabbis might have said that ownership should be transferred by Renunciation in order to make matters easier for repentant robbers. But R. Joseph said: Renunciation does not transfer ownership even by Rabbinic ordinance.

R. Joseph objected to Rabbah's view [from the following:] If a man misappropriated leavened food [before Passover],¹⁸  when Passover has passed¹⁹

1. Such as where, e.g., a cow was given as hire and it gave birth to a calf.
2. V. supra 54a, and B.M. 27a.
3. I.e., R. Elai's and R. Hanina's.
4. R. Elai.
5. R. Hanina.
6. In the Baraitha cited supra p. 379.
7. Rashi explains this to mean that as it was a sheep which he misappropriated it is a sheep which he has to return, but according to Tosaf. it does not refer to the object by which the payment is made but to the object of the theft, and means that if the change in price resulted from a change in the substance of the stolen object all kinds of payment will be in accordance with the value at the time of the theft, whereas where the change in the value was due to fluctuation in price the view of Rab would still hold good.
8. In the substance of a misappropriated article.
9. Lev. V. 23.
10. I.e., without any change in the substance of the object.
11. But not the misappropriated object itself.
12. Infra p. 541.
13. In accordance with Deut. XVIII, 4.
14. On account of the change which took place in the colour of the wool. (Hul. 135a).
15. Ye'ush, of the misappropriated article by its owner.
16. Where Renunciation by the owner would release a subsequent finder from having to restore the article found by him, as derived in B.M. 22b from a Scriptural inference.
17. After Renunciation.
18. When it was permitted.
19. So that the leavened food became forbidden for any use in accordance with Pes. 28a-30a.

he can say to the plaintiff, 'Here is your stuff before you.'¹  Now, as this plaintiff surely renounced his ownership when the time for prohibiting leavened food arrived,²  if you assume that Renunciation transfers ownership, why should the thief be entitled to say, 'Here is your stuff before you', when he has a duty upon him to pay the proper value?³  — He replied:⁴  I stated the ruling⁵  only where the owner renounces ownership at the time when the thief is desirous of acquiring it, whereas in this case, though the owner renounced ownership, the thief had no desire to acquire it.⁶

Abaye objected to Rabbah's statement [from the following]: [The verse says,] 'His offering,⁷  [implying] but not one which was misappropriated.'⁸  Now, what were the circumstances? If we assume before Renunciation, why do I require a text, since this is quite obvious?⁹  Should we therefore not assume after Renunciation, which would show that Renunciation does not transfer ownership?¹⁰  Said Raba¹¹  to him: According to your reasoning [how are we to explain] that which was taught: [The verse says,] 'His bed¹²  [implying] but not one which was misappropriated'? Under what circumstances? That, for instance, wool was misappropriated and made into a bed? But is there any [accepted] view¹³  that a change [in substance] resulting from an act does not transfer ownership?¹⁴  What you have to say is that it refers to a case where the robber misappropriated a neighbour's bed. So also here¹⁵  it refers to a case where he misappropriated a neighbour's offering.¹⁶  Abaye objected to R. Joseph's view [from the following]: In the case of skins belonging to a private owner, mere mental determination renders them capable of becoming [ritually] unclean¹⁷  whereas in the case of those belonging to a tanner no mental determination¹⁸  would render them capable of becoming unclean.¹⁹  Regarding those in the possession of a 'thief', mental determination²⁰  will make them capable of becoming unclean,²¹  whereas those in the possession of a 'robber' no mental determination²²  will render capable of becoming unclean.²³  R. Simeon says that the rulings are to be reversed: Regarding those in the possession of a 'robber', mental determination²²  will render them capable of becoming unclean,²⁴  whereas regarding those in the possession of a 'thief', no mental determination²⁰  will render them capable of becoming unclean, as in the last case the owners do not usually abandon hope of discovering who was the thief.²⁵  Does not this prove that Renunciation transfers ownership?²⁶  — He replied:²⁷  We are dealing here with a case where for example he had already trimmed the stolen skins [so that some change in substance was effected].²⁸  Rabbah son of R. Hanan demurred to this, saying: This was learnt here in connection with a [dining] cover,²⁹  and [skins intended to be used as] a cover do not require trimming as we have learnt:³⁰  Wherever there is no need for [finishing] work to be done, mental resolve³¹  will render the article capable of becoming unclean, whereas where there is still need for [finishing] work to be done no mental resolve³¹  will render it capable of becoming unclean, with the exception however, of a [dining] cover!³²  — Raba therefore said: This difficulty was pointed out by Rabbah to R. Joseph for twenty-two years³³  without his obtaining any answer. It was only when R. Joseph occupied the seat as Head³⁴  that he explained it [by suggesting that] a change in name is equivalent [in the eye of the law] to a change in substance; for just as a change in substance has an effect because, for instance, what was previously timber is now utensils, so also a change in name should have an effect as what was previously called skin is now called [dining] cover.³⁵  But what about a beam where there is similarly a change in name as previously it was called a post and now ceiling, and we have nevertheless learnt that 'where a misappropriated beam has been built into a house, the owner will recover only its value, so as to make matters easier for repentant robbers'.³⁶  The reason is, to make matters easier for repentant robbers,

1. As no change took place in the substance of the misappropriated article. (Infra p. 561.)
2. I.e., on the eve of Passover.
3. Since the misappropriated article became his.
4. Rabbah to R. Joseph.
5. That Renunciation transfers the ownership.
6. As it was not in his interest to do so.
7. Lev. I, 3.
8. Infra p. 388.
9. That a stolen object could not be brought to the altar.
10. In contradiction to the view expressed by Rabbah.
11. Var. lec., 'Rabbah'.
12. Lev. XV, 5.
13. With the exception of that of Beth Shammai (cf. supra p. 380). whose view is disregarded when in conflict with Beth Hillel (Tosaf.).
14. Would the bed in this case not become the legal property of the robber?
15. In the case of the sacrifice.
16. [In which case the sacrifice is not acceptable even if offered after renunciation on the part of the original owner.]
17. As his mental determination is final, and the skins could thus be considered as fully finished articles and thus subject to the law of defilement. (V. Kel. XXVI, 7.)
18. To use them as they are.
19. As a tanner usually prepares his skins for the public, and it is for the buyer to decide what article he is going to make out of them.
20. On the part of the thief to use them as they are.
21. For the skins became the property of the thief, as Renunciation usually follows theft on account of the fact that the owner does not know against whom to bring an action.
22. On the part of the robber to use them as they are.
23. For the skins did not become the property of the robber as robbery does not usually cause Renunciation, since the owner knows against whom to bring an action.
24. For the skins became the property of the robber as the owner has surely renounced every hope of recovering them for fear of the robber who acted openly.
25. Kel. XXVI, 8; infra p. 672.
26. In contradiction to the view maintained by R. Joseph.
27. R. Joseph to Abaye.
28. On account of which the ownership was transferred.
29. Since the case of the skins follows in the Mishnah that of the (dining) cover. [The dining cover (Heb. 'izba), was spread over the ground in the absence of a proper table from which to eat; cf. Rashi and Krauss, Talm. Arch., I, 376.]
30. Kel. XXVI, 7.
31. V. p. 384, n. 5.
32. Since even without trimming the skins could be used as a cover.
33. I.e., all the days when Rabbah was the head of the college at Pumbeditha; cf. Ber. 64a; Hor. 14a and Rashi Keth. 42b.
34. In succession to Rabbah.
35. Whereas mere Renunciation in the case of theft or robbery would not transfer ownership.
36. 'Ed. VII, 9.