Siman 354

The Tur wrote: If the stolen object improved in the hand of the thief, it is not only necessary to state that if he stole an empty cow and it became pregnant in his possession and gave birth, or an empty ewe and it became laden in his possession and he sheared it, that the shearings and the offspring are his; but even if he stole a pregnant cow and it gave birth, or a laden ewe and he sheared it, everything is his, and he is only obligated to pay according to the value of the cow and the ewe at the time of the theft, for he acquired it through a change (shinui), as the fact that it gave birth or was sheared is considered a complete change. Furthermore, even if the owners claimed them while the cow and the ewe were still laden, all the improvement belongs to the thief in a case where he stole it empty and the cow became pregnant and the ewe became laden in his possession. Thus far his words. And he holds that birth and shearing constitute a complete change even to acquire the animal itself, and this is not a change that returns to its original state, for that which it will give birth to again is a different birth, and likewise regarding shearing, that which he will shear another time is different wool. And whether it was empty and became pregnant in the possession of the thief, even if it has not yet given birth, it is a change; and whether he stole it pregnant and it gave birth in his possession. But if he stole it pregnant and it did not give birth in his possession, even though the fetus grew during the time it was with him, this is not a change [Bach], for a change only exists when it changed from empty to pregnant or from pregnant to birth, and such is the law regarding shearing. And this is the opinion of the Rosh, of blessed memory.

And one should not raise a difficulty according to this: why did we say regarding one who stole a pregnant animal and it gave birth while with him that he pays according to the time of the theft? For if she had claimed it one moment before the birth, she would have taken it as it was; why then should he not pay according to the moment before the birth? For it is not so, as the primary law is this: that whenever the object has changed, he does not need to pay according to the time before the change, but rather according to the time of the theft. And the proof is that in the case of one who stole a lamb one day old and it became a ram more than a year old, he only pays for a lamb one day old. Even though if he had claimed it at the completion of the year he would have had to return it as it was, nevertheless, once it has changed, he only needs to pay according to the time of the theft [the Rosh, chapter 9 of Bava Kamma, section 3]. And the reason is that we learn "change" from the verse "that which he stole," and therefore when it has changed, he must pay according to that which he stole.

And there are some of our teachers who hold that birth and shearing do not constitute a change at all regarding the animal itself, but only regarding the birth and the shearing themselves, for the animal has indeed not changed [Nimukei Yosef and the Ra'ah and his teacher, and it is implied from Rashi ibid.].

And there are some of our teachers who hold that if it gave birth while with him or he sheared it while with him, it is a complete change and he has acquired even the body of the animal, for the body has changed, as it was full and now it is lacking. But if he stole it empty and it became pregnant and laden while with him, and it has not yet given birth or been sheared, it is a change that returns to its original state and he has not acquired the body of the animal; rather, the improvement belongs entirely to the thief because of the ordinance of the penitents [Rashba and Yam Shel Shlomo there siman 4, and it appears this is the opinion of Rabbeinu Tam in Tosafot 95a s.v. "B'shevach"].

And regarding the improvement where the animal was fattened, such that it was lean and became fat, this is not a change, for no other body was added; rather, it improved, and this is like a rise or fall in market value. This has the law of improvement, and there is a distinction between whether it was fattened on its own or whether he fattened it, as will be explained with the help of Heaven.

The Rambam in chapter 1, law 11, has another approach in all this, and this is his wording: If the stolen object was in the hand of the thief and it improved on its own, such as a ewe that gave birth or was shorn, he pays for it and its shearings and its offspring. And if it gave birth or was shorn after despair, he pays according to the time of the theft. If he incurred expenses upon it and it improved, such as if he fattened it, the improvement belongs to the thief even before despair, etc. Thus far his words. And in chapter 2 of Laws of Robbery, law 1, he wrote: A stolen object that has not changed, etc., even though the owners have despaired of it, etc., it returns to its owners as it is. But if it changed in the hand of the robber, even though the owners have not despaired of it, he has acquired it through the change and pays its value according to the time of the robbery, etc. If the owners despaired of it and it did not change, the robber has acquired all the improvement that it improved after despair, and he only pays according to the time of the robbery. And this matter is from their words because of the "enactment for the penitent," and when he returns the stolen object to him, they appraise the improvement for him and he takes it from the victim of the robbery. Thus far his words.

And many wondered at his words, for it is explicitly explained in the Gemara [95a] that birth and shearing constitute a change; however, his opinion, of blessed memory, is that this is only according to Rabbi Meir, and the halakha does not follow him. But according to Rabbi Yehuda and Rabbi Shimon, this is not a change and is nothing other than improvement, like the improvement of fattening [the Gra]. And so it implies there in the Gemara [95b] that according to Rabbi Yehuda and Rabbi Shimon this is only improvement [and the difficulty of Tosafot is resolved]. And regarding the improvement itself, he holds that there is a distinction between before despair and after despair, because according to the law, he would have to return all the improvement to the victim of the theft since this is not a change; only because of the "enactment for the penitent" did they rule so, that the improvement should belong to the thief. And the "enactment for the penitent" is only after despair, for before despair, why should we make an enactment in a matter where the owners have not despaired? Only when he has already despaired should we not weaken the hands of those who perform repentance, for when we tell them that they must return the improvement as well, they will refrain from performing repentance. Therefore, they enacted so, that he returns the stolen object as it is, and the victim of the theft returns the value of the improvement to the thief [and the words of Rabbi Yehuda are precise, who said "the stolen object returns as it is," and so it is implied from Rabbi Shimon who disagrees and says "they appraise," and observe closely]. And improvement from expenditure must always be returned to the thief. And when it has changed, he acquires everything, including the improvement, and does not need to pay except for the value at the time of the theft. And our teacher, the Beit Yosef, copied the words of the Rambam in section 1, and in siman 362 it will be further explained regarding the opinion of the Rambam, of blessed memory, with the help of Heaven.

Our teacher, the Rema, wrote that there are those who say that even an improvement that occurs of its own accord belongs to the thief, even before despair, and all the more so if he stole a ewe and it became pregnant while with the thief, that the improvement belongs to the thief, even if the owners claimed it before it gave birth, since he stole it empty. Thus far his words. And his intention is not regarding all types of improvement, but rather regarding birth and shearing. And the explanation of his words is that it is not necessary to state that when it gave birth or he sheared it that it belongs to the thief, because this is a change and not an improvement, but even if it became pregnant and has not yet given birth, since he stole it empty, it is a change. And this is the opinion of the Tur as I have written [and he calls this change with the term "improvement" according to the wording of the author, and all that the Sma and the Shach questioned is settled].

If one stole an animal or a vessel, and at the time of the theft it was worth four zuz, and now at the time of standing in judgment it is only worth two, he pays the principal according to the time of the theft, for all gazlanim pay according to the time of the robbery. Nevertheless, in the opposite case, where at the beginning it was worth two and in the end four zuz, if he broke it, or sold it, or slaughtered it, or destroyed it by hand, he pays according to the time of the high price, for his primary liability is for the time of its breaking; for had he not destroyed it, he would have returned it as it is. It follows that his primary liability is for the time of the damage, and it is not similar to what was written in section 2, for who forced him to destroy it by hand? Therefore, if it was lost on its own, or died, or broke, he pays according to the time of the theft, for then was his liability. And why do we not say regarding a decrease in price that when he destroyed it by hand he should pay according to the time of the breaking so that a sinner should not profit—for if he had not broken it by hand he would have paid at the high price, and by this act of destroying it by hand he would gain? However, in the case of an increase in price, we establish it according to the law.

Regarding the obligation of kefel and fourfold and fivefold payments, the Rambam, of blessed memory, wrote that they are always according to the time of standing in judgment, because that is when the obligation arises, for had he confessed beforehand he would have been exempt; it follows that the essence of their obligation is from the time of standing in judgment. Nevertheless, in a case where it increased in value and was broken on its own or died, the Rambam and the Tur wrote that he pays even the kefel according to the time of the theft. It appears that their reasoning is that there is no logic at all to be more stringent than the principal. And so it is implied in the Gemara [Bava Kamma 66a] that we learn from a verse that one should not be more stringent regarding the kefel to pay at a higher price than the principal, for there are those who say that kefel and fourfold and fivefold payments are always paid according to the lower price, whether it decreased or increased in value, even if he broke it by hand, and whether it increased or decreased in value, because we must always be lenient regarding kefel and fourfold and fivefold payments [Rabbeinu Tam in Tosafot ibid. 67a]. However, regarding that which the Rambam ruled that even regarding fourfold and fivefold payments we follow the time of standing in judgment, the Tur wrote that regarding fourfold and fivefold payments we always follow the time of slaughtering and selling, as that is when its obligation arises. And even though had he confessed before the judgment he would have been exempt, nevertheless, had witnesses come afterward he would be liable, which is not the case with kefel, since once he obligated himself for the principal he would be exempt even in such a case, as I wrote in siman 348, section 9. Therefore, the essence of the obligation of kefel is the time of standing in judgment, and that of fourfold and fivefold payments is the time of slaughtering and selling [see Sma and Taz]. The Tur further wrote that if it increased or decreased in value between the slaughtering and the standing in judgment, we always follow the slaughtering [so it should be said, and so it is implied from the Rosh, that it refers to fourfold and fivefold payments, and what relevance does breaking have here? And the words of the Bach require great study; and examine this].

The Tur wrote: Emaciation and fattening that occur on their own are like a rise or fall in price. If it was emaciated and became fat on its own and he slaughtered or sold it, he pays everything according to what it is worth now. If it was fat and became emaciated, he pays the principal as it was originally, and the double payment and the fourfold or fivefold payment as it is now. However, if he incurred expenses upon it and it became fat, whether for the principal, the double payment, or the fourfold or fivefold payment, he only pays as it was originally. Similarly, if he emaciated it, he pays everything—the principal, the double payment, and the fourfold or fivefold payment—according to the time of the theft. Thus far his words. And the reasons are explained: for improvement that comes on its own, the thief has no involvement in it; therefore, he pays everything according to the improvement when he slaughtered or sold it. And in the case of emaciation on its own, it is like a price drop, where he pays the principal according to the previous high price, and the double payment and fourfold or fivefold payment according to the time of the low price, because that is when the obligation came upon them. And naturally, according to the opinion of the Tur that was explained previously, regarding the fourfold or fivefold payment we follow the time of slaughter, as I wrote. And some say that regarding the double payment and the fourfold or fivefold payment, we always follow the lenient path even when it became fat on its own [Rabbeinu Tam in Tosafot ibid.]. And the opinion of the Rambam has already been explained, that improvement after despair belongs to the thief because of the "enactment for the penitent." And where he incurred expenses and it became fat, in any case it belongs to the thief, because it is not logical that he should incur expenses and the owners should take a portion of the improvement beyond the expenses. And it is obvious that if he emaciated it, the loss is his, for what difference is there to me if he killed all of it or part of it.

Our Sages, of blessed memory, said that one does not appraise the shards for a thief or for a robber [Bava Kamma 11a]. And if he stole or robbed a vessel and broke it or diminished it, or it broke or diminished on its own, we do not say he should give the shards to the owners and complete the payment for them as is the case regarding damages, which will be explained in siman 387, and regarding guardians, which was explained in siman 291. Rather, he takes the shards and gives the owners a whole vessel or the value of the vessel. And in the Yerushalmi they derived this from a verse, as it is written: "From an ox to a donkey to a sheep, alive, he shall pay double," and not dead ones; and for vessels, their breaking is their death. From this it is clear that even in the calculation of the double-payment one does not include the shards, for in this verse double-payment is also written. And regarding four-fold and five-fold payments, it is possible that the law is like damages. And regarding a robber it is written: "And he shall return the robbery which he robbed," that it should be similar to what he robbed [and Rashi wrote that this is the custom of the judges]. And there are those who say that specifically to appraise the shards as they were at the time of the theft is not within his power, but in an appraisal of what they are worth now, he can give them to him. The poskim omitted this opinion, and so it is implied from the Yerushalmi that we cited. Our teacher, the Rema, wrote that this is specifically when he has money, but if he does not have money and must perforce give him movable property, these shards are no worse than other movable property. And there are those who disagree even on this [see the Gra, subsection 12].

And specifically when the owners do not want to accept the shards as part of the payment, but if they want to accept them as part of the payment and the thief shall complete the deficit, we listen to them even if the thief does not want this, but rather wants to give him money for the entire vessel or a new vessel, because this law was established for the benefit of the owners and not to their detriment. So the Rambam ruled, and they questioned him: why does the thief not acquire the shards through change? And there are those who rejected his words because of this [Yam Shel Shlomo and the Gra].

If one stole or robbed and the owners have not despaired, they cannot consecrate it—neither with inherent sanctity nor with monetary sanctity—neither the thief and the robber nor the owners. Even if they have witnesses of the theft and robbery such that they could extract it through judges, it is because it is not theirs; and also the owners, since it is not in their possession, and it is written: "And when a man shall consecrate his house," and we expound: just as his house is in his possession, so too everything must be in his possession, for that which is not in his possession he cannot consecrate. And it is not similar to a deposit, where the hand of the depositary is like the hand of the owners. And similarly, they do not have the ability to give it to charity. However, after despair, the thief can consecrate it, for it constitutes despair and a change of domain. In what case does this apply? Regarding movable property. But when one robbed land, if the owners have witnesses such that they can extract it through judges, they can consecrate it, for land is considered as if it is in their possession. And it appears to me that slaves and a perforated pot, even though in all laws of the Torah their law is like lands, nevertheless regarding this matter their law is like movable property, since they can be hidden. And we hold that ordinary theft constitutes despair of the owners, as I wrote in siman 368; therefore, in a case of theft, when the thief consecrated it, it is consecrated, unless it is known that they did not despair. But ordinary robbery does not constitute despair, as I wrote in siman 361. And similarly, one who buys from a thief before despair cannot consecrate it.

In the Gemara [Bava Kamma 78b] it is stated that one who designated an ox for an olah and they stole it, the thief can return a lamb to him and is thereby exempt, for since a lamb is valid for an olah, the thief can say, "I have exempted you from your vow." There are those who learned from this that regarding one who steals the etrog of his fellow or another object of a mitzvah, he can exempt himself with something inferior to it and can say to him, "Behold, I am returning this to you to fulfill the obligation of the mitzvah." But it is not so, for only regarding a sacrifice, which he does not have the power to sell, is the law thus; but regarding an etrog and the like, behold, he could have sold it for a high price, and therefore he is obligated to return to him according to its value. Aside from this, it is proven from the words of the Rambam in chapter 16 of Maaseh HaKorbanot that specifically the owner exempts himself with a lamb. This is his wording: If he said, "Behold, upon me is an olah," and he designated an ox and it was stolen, he exempts himself with a lamb. Thus far his words. And it is possible that in the Gemara his version of the text was such [see there in Tosafot, for it appears that even before them the version of the text was not "thief," but rather they interpret it so, and the Rambam interprets that it refers to the owner].