Siman 362

It has already been explained that when a stolen object has not changed and remains as it was, even though the owners have despaired of it, it returns to its owners in its actual form. This is so even if the robber died and it is in the hand of his sons, for the domain of an heir is not considered a change of domain, as was written in siman 361. And if it changed in the hand of the robber, even though the owners have not yet despaired of it, he has acquired it through the change and pays its value as of the time of the robbery. Whether it is a physical change or a change of name, it is considered a change, provided that it cannot return to its original state, as was written there.

In siman 354 it was explained that according to the Rambam, birth and shearing are not considered a change but rather an improvement, and by the letter of the law, one who steals a cow and it becomes pregnant in his possession and gives birth, or a ewe and it becomes laden with wool in his possession and he shears it, would have to return to the victim the animal itself and its shearings and its offspring. However, because of the "ordinance of the penitents," they ordained that the improvement that the stolen object improved after despair is acquired by the thief. And if he incurred expenses and it improved, even before despair it is his, such as if it was lean and he fattened it; but if it was fattened on its own, the improvement is not his except after despair. And it was explained there that most of the poskim disagree with him and hold that birth and shearing are considered a change. And even if he stole an empty animal and it became pregnant in his possession and has not yet given birth, or a ewe and it became laden in his possession and he has not yet sheared it, it is also considered a change and the thief acquires it, including the animal and the ewe, and he only pays the value as of the time of the theft, for the pregnancy and the loading of wool are also considered a change. And an improvement that is not a change, such as if it was lean and became fat on its own, the improvement belongs to the victim even after despair, for it is like an increase in market value. And where he incurred expenses for the fattening, the improvement belongs to the thief even before despair, just as according to the Rambam. [And what the Shach wrote in subsection 4 requires further study, for he wrote that if it was fattened on its own it is like an increase in market value regarding the words of the author of the Shulchan Aruch, who follows the Rambam, and he cited from the Rema in siman 354 that this is the opinion of those who disagree.]

This is the wording of the Rambam, of blessed memory, in the second chapter of Laws of Robbery: If the owners despaired of it and it did not undergo a change, the robber acquires all the improvement that it improved after despair, and he only pays according to the value at the time of the robbery. This matter is by the words of the sages because of the "ordinance of the penitents." 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. Our teacher, the Beit Yosef, transcribed it in section 2.

He further wrote there: It has already been explained that a stolen object which improved after despair or after it was changed, the improvement belongs to the robber, even if it improved on its own. How so? One who stole a cow and it became pregnant while with him, whether it gave birth before he was summoned to the beit din or whether it has not yet given birth; one who stole a ewe and it became laden with wool while with him, whether he sheared it before he was summoned to the beit din or whether he has not yet sheared it—since the owners despaired, he pays according to the value at the time of the robbery. And if it gave birth or he sheared it, the shearings and the offspring belong to the robber. And if it has not yet given birth or been sheared, they appraise it for him, and he takes the improvement from the victim of the robbery and returns the animal itself. Thus far his words. And he transcribed it in section 7.

He further wrote: If one stole a pregnant cow and the owners despaired, and afterwards it gave birth; or a laden ewe and the owners despaired, and afterwards he sheared it; he pays the value of a cow standing to give birth and the value of a ewe standing to be sheared. And if before despair and before it underwent a change it gave birth or he sheared it, behold the shearings and the offspring belong to the owners; and even though it became pregnant or laden in the hand of the gazlan, since the owners did not despair and the stolen object did not undergo a change, it is in the domain of its owners, even though the gazlan is liable for accidents. Thus far his words. And he transcribed it in section 8.

The explanation of his words is as has been written, that birth and shearing are considered improvement and not a change, and the gazlan does not acquire the improvement except after ye'ush. And if there is no change, such as a calf that became an ox or a lamb that became a ram, he must return the gazela itself to the victim. Regarding the improvement when it has been removed from it—for example, if he sheared it or it gave birth—there is no assessment at all, for the gazlan takes the shearing and the offspring, and he returns the animal to the victim. And if it has not yet given birth or been sheared, he returns the animal with the improvement to the victim, and they assess for the gazlan the value of the improvement that followed ye'ush, and he pays the gazlan [and he does not hold like the Tosafot, Bava Kamma 95b, s.v. "L'Rabbi Shimon," that according to Rabbi Yehuda we remove him from the object itself, but rather that according to Rabbi Yehuda we remove him with money; and so wrote the Maggid Mishneh].

And there is one who explained that according to the Rambam, if he already sheared it and it gave birth, he also acquires the body of the animal and pays the victim only money, and he inferred this from what he wrote, "he pays according to the time of the robbery" [Sma, subsection 14]. But this does not seem so, for on the contrary, he explains that if it gave birth and he sheared it, the shearings and the offspring belong to the robber, and if it has not yet given birth, they appraise it for him. And that which he wrote regarding one who robbed a pregnant cow and it gave birth, that "he pays the value of a cow about to give birth," his intention is not that he keeps the cow for himself, but rather this is what he means: that he does not fulfill his obligation by returning the cow as it is now, but rather he returns the cow and also that which it was worth more because of the fetus, and the improvement of the birth belongs to the robber [ibid., subsection 16]. And this is the explanation of the Mishnah according to his opinion, of blessed memory: that which we learned, "if he robbed a pregnant cow and it gave birth, he pays the value of a cow about to give birth," meaning that he returns the cow with the improvement of the fetus. And that which we learned, "if he robbed a cow and it became pregnant with him and gave birth, he pays according to the time of the robbery," means that there is no appraisal here, for he returns the cow to the victim and keeps the offspring for himself. And if it has not yet given birth, it is not explained in the Mishnah but in a Baraita [95a, and like Rabbi Yehuda who said "the robbery returns as it is," and as Rav Papa explains that it deals with improvement that is upon the robbery which has not yet given birth, and Rabbi Yehuda holds that it all belongs to the robber and he takes the value from the victim, see there].

The Tur wrote: If the stolen object improved, such as a cow that gave birth or a ewe that was shorn, I have written above regarding the laws of a thief that the improvement belongs to the robber. And it goes without saying that if he incurred expenses upon it and it improved, it is his; even if he only performed a reversible change, such as earth and he made it into bricks, or planed wood and he made them into vessels—for although he did not acquire the stolen object, he nevertheless acquired the improvement, and he returns the stolen object to him and he [the owner] gives him the improvement that he improved and made into a vessel. Thus far his words. And afterwards in section 3, he wrote regarding the Rambam, who follows his own reasoning that birth and shearing are not considered a physical change; but according to what I wrote above, that it is a physical change, he does not need to return the stolen object, but rather its value as it was worth at the time of the robbery. Thus far his words. And from his words it is explicitly clear as I have written, that according to the Rambam, he returns the cow itself even when it has already given birth, unlike those who say that even according to the Rambam he only returns the value. And that which the Tur calls birth and shearing by the term "improvement" at the beginning of his words is because they are indeed improvements, except that in his opinion this improvement constitutes a change, and such is the opinion of most of the poskim. And because the Rambam calls this only an improvement, it is according to his reasoning, as I wrote in siman 354 regarding the wording of our teacher, the Rema; see there.

And from this it is explained that what our teacher, the Rema, wrote in section 8, that all these are the words of the Rambam but there are those who disagree, as he wrote at the beginning of siman 354 and 356, and even a change that returns to its original state, such as dust that he made into bricks, even though he did not acquire it as mentioned above in siman 360, he nevertheless acquires the improvement and must return the value of the improvement to him, thus far his words; the explanation of his words is that there are those who disagree and hold that birth and shearing are considered a change. And that which he wrote, that in a change that returns to its original state he must return the improvement to him, this is because this is not an improvement that comes on its own, and the improvement came through his exertion. And in this, all the poskim are equal with the Rambam, as our teacher, the Beit Yosef, wrote in section 9. This is his wording: In what case does this apply? Regarding an improvement that comes on its own, such as shearings and offspring; but if it was lean and he spent money on it and fattened it, even before ye'ush, he takes the improvement of the fattening from the victim of the robbery, and so too anything similar to this regarding an improvement that involves expenditure. Thus far his words. And therefore our teacher, the Rema, emended his words before this section, because in this law the poskim do not disagree with the Rambam. And our teacher, the Rema, innovated in his words that it is not specifically an improvement through expenditure, but even an improvement not through expenditure but through exertion, such as with dust that he made into bricks, he also acquires the improvement even before ye'ush, for exertion is like expenditure, and the Rambam would also admit to this [and what the Be'er HaGolah wrote in letter 5 does not appear correct to me, and the Rambam holds like all the poskim that ye'ush is not an acquisition at all, and only regarding kiddushin, due to the stringency of a married woman, did the poskim in Even HaEzer concern themselves, as written in siman 353, and examine it carefully].

If the gazlan sold it or gave it as a gift, even though the gazilah was not changed, it does not return in its actual form from the hand of the buyer since the owners despaired. According to the Rambam, there is no difference whether the yei'ush was before the sale or whether it was afterward. Most poskim disagree on this and hold that yei'ush is only effective when it was before the change of domain, as I wrote in siman 353; see there.

It is stated in the Gemara [Bava Kamma 96a]: Rava said, if one robbed and improved and sold, or robbed and improved and bequeathed, what he improved he sold, and what he improved he bequeathed. Rava inquired: if the buyer improved it, what is the law? After he inquired, he then resolved it: what did the first sell to the second? Every right that would come into his hand. See there. And according to the opinion of the Rambam, it is impossible to say that this deals with a case where the owners despaired, for if so, it would be despair and a change of domain, and he would acquire it completely. One must say that it deals with a case before despair. And even though according to the Rambam the robber himself does not acquire the improvement before despair, nevertheless, they enacted an enactment for the buyer and for the heir that he should acquire the improvement even before despair. And according to those who disagree with him and hold that even before despair the robber acquires the improvement, it comes to teach us that you should not say that they only enacted this for the robber himself because of the "enactment of the penitents" and not for the buyer and the heir; for this reason, it says that they enacted this for them as well. And even when the buyer or the heir improved it, the improvement is also theirs. And according to the Rambam, that which it says that he sold him "every right that would come into his hand," even though he himself would not have acquired it before despair, this is the explanation: just as if the robber had improved it and afterwards sold it, the improvement would belong to the buyer because of the "enactment of the buyer" as has been written, so too if he sold it first and afterwards the buyer improved it, the improvement belongs to the buyer [Maggid Mishneh]. And all of this improvement is when the improvement occurred on its own without expenditure and without effort, for if not so, even by the robber the improvement would be his. And when it improved in the hand of the robber and he sold it, such that the buyer takes the improvement from the victim of the robbery, the victim of the robbery returns and takes the improvement from the robber.

And our teacher, the Beit Yosef, wrote likewise in section 4: One who robs and improves [the object] and sold or bequeathed it before ye'ush, that which he improved he bequeathed and that which he improved he sold, and the buyer or heir acquires the improvement and takes the value of the improvement from the victim of the robbery and returns the stolen object, and the victim of the robbery then takes the value of the improvement from the robber since he had not despaired. And likewise, if the buyer or the heir improved it, he takes the improvement from the victim of the robbery. Thus far his words. And this is the wording of the Rambam, and according to his opinion that birth and shearing are also included in "improvement" as I have written, this too is included in this improvement. And it was not pleasing to our teachers to explain that which Rava said, "improved," as meaning he improved it with his hands, because this is obvious and there is no doubt regarding this.

If the gazlan sold it to a Kutite and the purchaser improved it, the improvement returns to the owner. And if the Kutite sold it to an Israelite after he improved it, it is a legal doubt whether he acquired the improvement or not, and the burden of proof rests on the claimant. According to the opinion of the Rambam, of blessed memory, in any case of legal doubt, if he seized it, it is not removed from his possession; and according to the Rosh, of blessed memory, it is removed from his possession. And this is all regarding improvement that occurred on its own, but regarding improvement that the gazlan or the purchaser improved through effort or expenditure, it belongs to the gazlan and similarly to the purchaser, as has been written.

A stolen object that has not changed but has increased in value, even if the owners have despaired of it, behold, it returns to the owners and the gazlan has nothing in it, for they did not institute for the gazlan an improvement that occurs after ye'ush except for an improvement to the body of the object, such as if it became fat, or shearings and offspring according to the opinion of the Rambam; but an improvement of value they did not institute, as was written in siman 353.

One who robs a barrel of wine from his fellow, and it was worth a dinar at the time of the robbery and it increased in value while with him and stood at four—if it is intact, he returns it as it is. And if it broke on its own or was lost, he pays a dinar, for all robbers pay according to the time of the robbery. Nevertheless, if he broke the barrel or drank it or sold it or gave it away after it increased in value, he pays four according to the time he removed it from the world, for had he left it, it would have been returned in its original form and would then have been worth four; it follows that he caused the primary damage at the value of four dinars. And if at the time of the robbery it was worth four and at the time of its removal from the world it was worth a dinar, he always pays four according to the time of the robbery, whether he broke it or it broke on its own. And why do we not say when he broke it that since the primary damage is at the time of the manual breaking he should pay only a dinar according to what it was worth then? For if so, a sinner would be rewarded. And if it is intact, he returns it as it is in any case, and so too regarding anything similar to this, as I wrote in siman 353; and see what I wrote in siman 354 [see Turei Zahav].

One who steals a cluster of dates containing fifty dates, and if they were sold all together they would only be worth forty-nine perutot, but if they were sold individually they would be worth fifty, he only pays forty-nine. The victim cannot say, "I would have sold them one by one," because the thief stole them all as one, and all thieves only pay according to the time of the theft [Levush]. Furthermore, it is necessary to be lenient with him just as with one who causes damage in siman 394, see there [Sma]. According to this, even if it is known that the victim, according to his manner of business, would have taken more than the market price, nevertheless, he only needs to pay him according to the fixed price, and one does not calculate the sales individually even if such was the way of the victim [it appears to me].

It has already been explained that one does not appraise for a thief nor for a robber. Therefore, one who robs a vessel and breaks it, we do not say that he should give the shards and complete the payment upon them; rather, he pays for a whole vessel or its value and keeps the shards for himself. And in detail, it has been explained in siman 354, see there.