Babylonian Talmud: Tractate Baba Kamma

Folio 95a

as the latter deals with a case where the misappropriated article is still intact whereas the other teaching refers to a case where the misappropriated article is no more intact. But what about the girdle [referred to above],¹  in which case the misappropriated article was still intact? — What was meant by 'girdle' was the value of the girdle. But is it really the fact that so long as the misappropriated article was intact our Rabbis did not make this enactment?²  What then about the beam in which case the misappropriated article was still intact and we have nevertheless learnt: [R. Johanan b. Gudgada testified] that if a misappropriated beam has been built into a house, the owner will recover only its value?³  — That matter is different altogether, for since the house would otherwise be damaged. the Rabbis regarded the beam as being no longer intact.⁴

IF ONE MISAPPROPRIATED A PREGNANT COW WHICH MEANWHILE GAVE BIRTH [TO A CALF] etc. Our Rabbis taught: 'He who misappropriates a sheep and shears it, or a cow which has meanwhile given birth [to a calf], has to pay for the animal and the wool and the calf;⁵  this is the view of R. Meir. R. Judah says that the misappropriated animal will be restored intact.⁶  R. Simeon says that the animal will be considered as if it had been insured with the robber for its value [at the time of the robbery].' The question was raised: What was the reason of R. Meir? Was it because he held that a change leaves the article in its existing status?⁷  Or [did he hold] in general that a change would transfer ownership, but here he imposes a fine [upon the robber], the practical difference being where the animal became leaner?⁸  — Come and hear: If one misappropriated an animal and it became old, or slaves and they became old, he would still have to pay according to [their value at]⁹  the time of the robbery, but R. Meir said that in the case of slaves¹⁰  [the robber] would be entitled to say to the plaintiff: 'Here, take your own.'¹¹  It thus appears that in the case of an animal [even R. Meir held that] the payment would have to be in accordance with [the value at] the time of the robbery.⁹  Now, if you assume that R. Meir was of the opinion that a change leaves the article in its previous status,¹²  why even in the case of an animal [can the robber not say. 'Here, take your own']? Does this therefore not prove that even R. Meir held that a change would transfer ownership, and that [in the case of the wool and the calf] it was only a fine which R. Meir imposed on the robber? — It may, however, be said that R. Meir was arguing from the premises of the Rabbis, thus: According to my view a change does not transfer ownership, so that also in the case of an animal [the robber would be entitled to say. 'Here, take your own'], but even according to your view, that a change does transfer ownership, you must at least agree with me in the case of slaves, who are compared to real property, and, as we know, real property is not subject to the law of robbery.¹³  The Rabbis, however, answered him: 'No, for slaves are on a par with movables [in this respect].'¹⁴

Come and hear: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black but he dyed it red, R. Meir says that he would have to pay [the owner of the wool] for the value of the wool.¹⁵  [It thus appears that] he had to pay only for the original value of the wool but not for the combined value of the wool and the improvement [on account of the colour]. Now, if you suppose that R. Meir held that a change would not transfer ownership, why should he not have to pay for the combined value of the wool and the improvement? Does this therefore not prove that R. Meir held that a change would transfer ownership and that here [in the case of the calf] it was only a fine that R. Meir imposed [upon the robber]? — This could indeed be proved from it. Some even say that this question was never so much as raised; for since Rab transposed [the names in the Mishnah] and read thus: If one misappropriated a cow which became old, or slaves who became old, he would have to pay in accordance with [the value at] the time of the robbery;¹⁶  this is the view of R. Meir, whereas the Sages say that in the case of slaves the robber would be entitled to say, Here, take your own',¹⁶  it is quite certain that according to R. Meir a change would transfer ownership, and that here [in the case of a calf] it was only a fine that R. Meir imposed [upon the robber]. But if a question was raised, it was this: Was the fine imposed only in the case of wilful misappropriation whereas in the case of inadvertent misappropriation¹⁷  the fine was not imposed, or perhaps even for inadvertent misappropriation the fine was also imposed? — Come and hear: Five [kinds of creditors] are allowed to distrain only on the free assets [of the debtor];¹⁸  they are as follows: [creditors for] produce,¹⁹  for Amelioration showing profits,²⁰  for an undertaking to maintain the wife's son or the wife's daughter,²¹  for a bond of liability without a warranty of indemnity²²  and for the kethubah of a wife where no property is made security.²²  Now, what authority have you heard lay down that the omission to make the property security²²  is not a mere scribal error²³  if not R. Meir?²⁴  And it is yet stated: 'Creditors for produce and Amelioration showing profits [may distrain on free assets in the hands of the debtor].' Now, who [are creditors for Amelioration showing] profits?²⁵  They come in, do they not, where the vendor has misappropriated a field from his fellow and sold it to another who ameliorated it and from whose hands it was subsequently taken away. [The law then is that] when the purchaser comes to distrain

1. Supra p. 548.
2. And the actual article would have to be restored.
3. Cit. V, 5; 'Ed. VII, 9' and supra p. 385.
4. And the actual beam would not have to be restored. Its value will, however, be paid on account of the fact that the beam was actually in the house.
5. [The payment, that is to say, will have to be made for the combined value of the calf and wool and the improvement.] Cf. B.M. 43b.
6. [I.e., in the state it is at the time of payment. The robber will, however, have to make up in money for the difference in the value of the cow as it stood at the time of the robbery. The difference between R. Simeon and R. Judah will be explained anon.]
7. And no ownership could thereby be transferred.
8. Where according to the former consideration the robber would escape further liability by restoring the animal, but according to the latter he would have to pay for the difference.
9. As the change transferred the ownership to the robber.
10. Who are subject to the law applicable to immovables.
11. Mishnah, infra p. 561.
12. And no ownership could thereby be transferred.
13. Cf. Suk. 30b and 32a.
14. Cf. supra 12a.
15. For by acting against the instructions of the owner he rendered himself liable to the law of robbery; Mishnah infra 100b.
16. V. infra p. 561.
17. As in the case of the dyer, supra p. 552.
18. But not if the landed property is already in the hands of a third party such as a purchaser and the like.
19. Such as where a field full of produce was taken away in the hands of a purchaser through the fault of the vendor: the amount due to the purchaser for his loss of the actual field could be recovered even from property already in the hands of (subsequent) purchasers, whereas the amount due to him for the value of the produce he lost could be recovered only from property still in the hands of the vendor; cf. Git. V, I and B.M. 14b.
20. Such as where the purchaser spent money on improving the ground which was taken away from him through the fault of the vendor.
21. Cf. also Keth. XII, 1.
22. I.e., where the particular clause making the property security was omitted in the document. V. Keth. 51b.
23. But has legal consequences.
24. V. B.M. I, 6 and ibid. 14a.
25. Lit., 'how is this possible?'

he will do so for the principal even on [real] property that has been sold, but for the Amelioration only on assets which are free [in the hands of the vendor]. [But this is certain,] that the owner of the field is entitled to come and take away the field together with the increment. Now, do we not deal here with a purchaser who was ignorant of the law and did not know whether real property is subject to the law of robbery or is not subject to the law of robbery?¹  And even in such a case the owner of the field will be entitled to come and take away the land together with the increment. Does not this show that even in the case of inadvertent misappropriation,²  [R. Meir] would impose the fine? — It may however be said that this is not so, [as we are dealing here] with a purchaser who is a scholar and knows very well³  [that real property is not subject to the law of robbery].¹

Come and hear: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner of the wool] for the value of the wool.⁴  [It thus appears that he has to pay] only for the original value of the wool but not for the combined value of the wool and the improvement [on account of the colour]. Now, if you assume that R. Meir would impose the fine even in the case of inadvertent misappropriation why should he not have to pay for the combined value of the wool and the improvement? Does this not prove that it is only in the case of wilful misappropriation that the fine is imposed but in the case of inadvertent misappropriation the fine would not be imposed? — This could indeed be proved from it.

'R. Judah says that the misappropriated [animal] will be restored intact. R. Simeon says that the animal be considered as if it had been insured with the robber for its value [at the time of the robbery].' What is the practical difference between them?⁵  — Said R. Zebid: They differ regarding the increased value [still] attaching to the misappropriated article. R. Judah maintained that this would belong to the plaintiff⁶  whereas R. Simeon was of the opinion that this would belong to the robber.⁷  R. papa, however, said that both might agree that an increased value [still] attaching to the misappropriated article should not solely belong to the plaintiff,⁸  but where they differed was as to whether the robber should be entitled to retain a half or a third or a fourth⁹  for [his attending to the welfare of the article]. R. Judah maintaining that an increased value [still] attaching to the misappropriated article would belong solely to the robber,¹⁰  whereas R. Simeon maintained that the robber would be paid only to the extent of a half, a third or a fourth.

We have learnt: 'BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY.' That is so only if the cow has already given birth, but if the cow has not given birth yet it would be returned as it is. This accords well with the view of R. Zebid who said that an increased value still attaching to the misappropriated article would according to R. Judah belong to the plaintiff; I [the Mishnah] would then be in accordance with R. Judah. But on the view of R. papa who said that it would belong to the robber,¹⁰  it would be in accordance neither with R. Judah nor with R. Simeon? — R. Papa might say to you that the ruling [stated in the text] would apply even where the cow has not yet given birth, as even then he would have to pay in accordance with [the value at] the time of the robbery. For as for the mention of 'giving birth', the reason is that since the earlier clause contains the words 'giving birth', the later clause similarly mentions 'giving birth'. It was taught in accordance with R. papa: 'R. Simeon says that [the animal] is to be considered as if its pecuniary value had been insured with the robber, [who will however be paid] to the extent of a half, a third or a fourth [of the increase In value].'¹¹

R. Ashi said: When we were at the School of R. Kahana, a question was raised with regard to the statement of R. Simeon that the robber will be paid to the extent of a half, a third or a fourth [of the increase in value] whether at the time of his parting with the misappropriated article he can be paid in specie, or is he perhaps entitled to receive his portion out of the body of the misappropriated animal. The answer was found in the statement made by R. Nahman in the name of Samuel: 'There are three cases where increased value will be appraised and paid in money. They are as follow's: [In the settlement of accounts] between a firstborn and a plain son,¹²  between a creditor and a purchaser.¹³  and between a creditor¹³  and heirs.'¹⁴  Said Rabina to R. Ashi: Did Samuel really say that a creditor will have to pay the purchaser for increased value? Did Samuel not state¹⁵  that a creditor distrains even on the increment?¹⁶  — He replied: There is no difficulty, as the former ruling applies to an increment which could reach the shoulders to be carried away.¹⁷  whereas the latter ruling deals with an increment which could not reach the shoulders to be carried away.¹⁸  He rejoined:¹⁹  Do not cases happen every day where Samuel distrains even on an increment which could reach the shoulders to be carried away? — He replied: There is still no difficulty,

1. V. p. 552. n. 1.
2. Such as was the case here with the purchaser.
3. Also that the field has been misappropriated by the vendor (cf. Shittah Mekubezeth a.l.) and as such is guilty of wilful misappropriation.
4. V. Mishnah infra 100b.
5. I.e., R. Judah and R. Simeon.
6. Since the article has to be restored intact.
7. [Since the payment is made according to the value at the time of the robbery.]
8. Lit., 'should belong to the robber', but which means that it will not solely belong to the plaintiff, as will soon become evident in the text.
9. I.e., in accordance with the definite percentage in the profits fixed in a given province to be shared by a contractor for his care and attendance to the welfare of the article in question; cf. B.M. V, 4-5.
10. As the expression 'intact' means intact as it was at the time of the robbery.
11. V. p. 555. n. 4.
12. As the firstborn son has two portions in the estate as it was left at the time of the death of the father, but only one portion in the increased value due to amelioration after the father's death, so that by taking two portions in the estate the firstborn would have to pay back the other sons their appropriate portions in the increased value of the additional portion taken by him; cf. B.B. 124a.
13. I.e., a creditor distraining on a field that originally belonged to his debtor but which was subsequently disposed of or inherited by heirs and the purchaser or heirs increased its value by amelioration.
14. V. B.M. 110b.
15. B.M. ibid. and 14b; Bk. 42a.
16. Without paying for it, v. B.M. ibid.
17. As where the produce is quite ripe and could be separated from the ground in which case it is the property of the purchaser. V. B.B. (Sonc. ed.) p. 183. n. 3.
18. I.e., which is inseparable from the ground and which is distrained on together with the field by the creditor.
19. I.e., Rabina to R. Ashi.