Siman 363

Even though it was explained in siman 362 that regarding an improvement that occurs on its own, the thief does not acquire it by law, nevertheless, regarding a deterioration that occurs on its own, the damage belongs to the thief, for behold, it was spoiled in his domain, and he must pay according to the value at the time of the theft. This is except for land; when he stole it and it was spoiled, he returns it as it is, for land cannot be stolen as it remains in its place and is always in the domain of the victim, and it was spoiled in his domain. And so too, if he stole slaves and they grew old or were spoiled, their law is like land, for in the entire Torah their law is like land, as written in siman 95. And there is one who says that since for several matters their law is like movable property by rabbinic enactment—such as regarding pruzbul in siman 67 and to acquire movable property along with them in siman 202—therefore, for this as well, their law is like movable property. However, most of the poskim agreed that we establish it here according to the Torah law, and he says to the victim, "Behold, yours is before you." And even if they were burned or died, he does not pay, since they did not leave the domain of the victim [Shach]. And there are those who disagree on this, for specifically when they were damaged or emaciated, such that the essence is still present, it is indeed judged like land and he says to him, "Behold, yours is before you"; but when it is lost from the world, he certainly pays its value, for behold, his is not before him, and behold, they are stolen and acquired through despair, as it is written, "and took some of them captive" [Ra'avad, chapter 9 of Gezeilah].

Therefore, if one stole an animal and it grew old or became emaciated, even on its own, with an emaciation that cannot be reversed—such as illnesses for which there are no cures—and certainly if its leg or its arm was broken, he has acquired it through change. Or if one stole a coin and it cracked, or if one stole fruit and it all rotted, or if one stole wine and it soured, this is like one who stole a vessel and broke it, and he pays according to the value at the time of the theft, for he acquired it through change. And let it not be difficult for you why improvement is not considered a change, because improvement is a reversible change, as it can be spoiled; and even the change of birth and shearing is considered a reversible change according to the opinion of the Rambam, as I wrote in siman 354. And regarding fruit, it is not specifically that it all rotted, but even if most of it or half of it rotted, for that is a visible damage [Sma]. But when a small portion of it rotted, it is the way of the world and is not considered a change, and he says to him, "Behold, yours is before you" [Atzei Levonah and Yam Shel Shlomo, first chapter of Bava Kamma, siman 29, that emaciation is a change].

But if one stole animals and they became lean with a leanness that can be reversed, or if one stole terumah and it became impure, or if one stole chametz and Passover passed over it, or if one stole an animal and a transgression was performed with it such as bestiality, or it was used for idol worship, or it became disqualified from the altar by way of a blemish that is not visible, such as cataracts in the eye, or if it was going out to be stoned because it killed a person—even though there is damage to the victim of the theft, nevertheless the thief says to him, "Behold, yours is before you," and he returns the object itself. For we establish that damage that is not visible is not considered damage, and in all these cases the damage is not visible, as they remain in their form and appearance as before. And even though it will be explained in siman 385 that even regarding damage that is not visible the sages penalized the damager to pay so that a person should not become accustomed to causing such damages to his fellow, nevertheless regarding a thief they did not see fit to penalize because of the "enactment of the penitents" [Shiltei HaGibborim, chapter HaGozel]. Furthermore, thefts are not common [Gittin 58b] and the sages did not see fit to penalize them.

In what case are these words said? When he returned the stolen object now; but if it was burned or lost, even after it was forbidden for benefit, he is obligated to return to him the value according to the time of the theft, for the primary obligation is based on the time of the theft. Therefore, when he is unable to say to him "behold, yours is before you," he pays according to the time of the theft [and see what I wrote in section 1].

If one stole a coin and the king invalidated it, it is a discernible damage because the ruin is discernible to all, and it is like one that was cracked. But if the king did not invalidate it, rather it was invalidated in a specific province because the people of that province do not wish to accept it, yet in another province it circulates—even though he suffers a loss in this, that he must transport it there—nevertheless it is an indiscernible damage, and he says to him, "Behold, yours is before you." And some say that regarding a coin, even if the king invalidated it and it does not circulate at all, it is an indiscernible damage since there is no change in its essence; and if it was lost, he pays with a good coin that circulates in that place. And some say regarding fruit as well, specifically when they rotted with the infestation, but if they rotted due to a worm and from the outside they are whole, they are as if healthy [Shach]. And if they rotted until their form was ruined, it is a discernible damage; and even if they rotted due to the passage of time in the manner of fruit and not because of worms, since their form was ruined, it is a discernible damage [it appears to me].

One who stole an etrog before Sukkot and returned it to him after the festival is similar to a coin that the king invalidated, and it is dependent on the two opinions that have been explained. And regarding any merchandise that he stole and kept in his possession until the time of its sale on the market day has passed, it appears that the law is also thus. According to the latter opinion, he can say, "Behold, yours is before you." And just as the thief can say, "Behold, yours is before you," so too if one gave this item to be guarded, and while with the guard it became forbidden for benefit and the damage is not discernible, and anything similar to this, the guard can also say, "Behold, yours is before you" [Shach].

All the labors that the gazlan performed with the stolen object, since it was not damaged, he is exempt, even though the owner also needed this labor and incurred expenses to obtain this labor; this is nothing more than germa in damages and he is exempt, and he only needs to pay according to the value at the time of the gezeilah. Therefore, one who steals an animal and carried a burden upon it, or rode upon it, or plowed with it, or threshed with it, and the like, and returned it to its owners, even though he transgressed the negative commandment of "do not steal," nevertheless he is not liable to pay anything, for he did not cause it loss or weaken it. And if it was damaged or weakened, even a weakness that returns, he is liable according to that opinion in siman 307, for in an animal this is not called shevet but rather damage, and he is liable to pay [Netivot HaMishpat]. And specifically when it was weakened on its own is he exempt for a weakness that returns, but not when he weakened it with his hands. However, according to the one who holds there that it is called shevet, he is exempt, for there is no shevet regarding an animal. And it is not similar to a house, as will be explained, that one must pay when he dwells in it even though shevet is not applicable to a house; this is because land is not stolen and remains in the domain of the owner, but not so with movables, which stand in the domain of the gazlan. Therefore, even if the stolen object is typically for hire, that they rent them out, the gazlan is exempt, for he performed the labor with his own [Shach], and he only pays according to the value at the time of the gezeilah [see Netivot HaMishpat, and what he wrote regarding the Sma in subsection 8 requires great study].

And specifically if he descended to the object under the category of theft or under the category of borrowing, for his law is like a thief, as one who borrows without knowledge is a thief. However, if he descended to it under the category of rental, if this object is standing for rent, such as one who took the animal of his fellow which it is the way of the owners to rent out, or one who seizes the ship of his fellow and performed work with it, and he descended to it for the sake of rental and not for the sake of theft or borrowing, and the ship is standing for rent—if the animal or the ship were not damaged at all, the owner of the animal or the owner of the ship takes their rent according to the price for which it is the way to rent them. And if there is depreciation in them, if the owners wish, they take their rent, and if they wish, they take their depreciation. And even though it is their way to be damaged when one rents them, nevertheless, since he descended to them without the permission of the owners, it is within the power of the owners to take the depreciation and not the rent if it amounts to more than the rent. And if they are not made for rent, he always takes the depreciation, and we assess how much they depreciated and they take it. And if he descended to it under the category of theft or under the category of borrowing, we always assess the depreciation, and if there is no depreciation in them, he pays nothing, as I have written, and so too anything similar to this.

The Tur wrote in the name of the Ramah that even though if one descended with the intent of theft or borrowing he does not need to pay the rent, even if it is standing for rent, nevertheless, if the thief rented it to another, he must return the rent to the owners since it is standing to be rented. Our teacher, the Beit Yosef, rejected this, for since we hold that all thieves pay according to the time of the theft, what does it matter to me if he performed work himself or rented it to another? On the contrary, to another is even better, for a rental for a day is a sale, and it is like a change of domain. And even though a rental is certainly not a change of domain, and even with despair it is not effective because it returns to its master, and furthermore, a rental is not like a sale for every matter, nevertheless, it is simple that a rental is no worse than an action by himself.

But our teacher, the Rema, brought this as a halachic ruling, and his reasoning is that even though when he acted himself he is exempt, nevertheless he may not take payment from another, and how can he conduct commerce with his fellow's cow? And this law is like the law of one who rents a cow from his fellow, for if it were lost to an accident in his domain he would be exempt, yet when he lent it to another and it was lost to an accident, he pays the owner because of this reason, as is written in siman 307. And a change of domain is only relevant to the buyer, for through the change of domain he acquires it, but not that a change of domain should avail the gazlan. And even though regarding an improvement the sages enacted that he should acquire it because of the enactment for the penitent, nevertheless in this case they did not enact it. And why should they enact it for an improvement that came through others? For this is nothing but like a rise in value, which he did not merit, as is written there [Sma; and what he wrote that it is an enactment etc. is not so according to what the Shach wrote in subsection 8, and according to the fundamental law it is so, and as I wrote in section 7; and delve into this].

From the words of the Tur, another reason for this appears: that in truth, the acquisition of a gazlan is not a complete acquisition, for he does not acquire it with the knowledge of the owner, and the essence of his acquisition is only to become liable for the accidents of the object. However, nevertheless, it is impossible to extract money from him for his use because the Torah said, "and he shall return the stolen object which he stole," implying that he only pays according to its value at the time of the theft. But nevertheless, it is not within his power to rent it to another, for it is not his, and the other who rented it is as if he rented it from its owners. And even if he knew it was stolen, nevertheless, he descended with the intent of rental and is obligated to pay the owners. And the gazlan did not merit the rental money at all, and if he took them from the hand of the renter, it is as if he stole money from the owners and is obligated to return them.

And if the gazlan was established as one who is accustomed to steal or to withhold wages and to perform such acts time after time, we penalize him even when he is exempt by the law, such as when he took possession with the intent of theft, and even if the object is not typically for hire. And we appraise the improvement from which he benefited through its use, or we appraise the rental of the animal or other objects, and he pays the victim of the theft. And even in the Diaspora we do so, as has been written in siman 2.

All these matters apply only to movables, but one who robs slaves or lands, which are not legally subject to robbery, pays rent even if he descended into them with the intent of robbery if they are standing for rent, as will be explained, because land stands in the possession of the owners and it is not applicable to them to pay according to the value at the time of the robbery, as I wrote in section 7. And thus the Sages, of blessed memory, said [Bava Kamma 97a]: One who seizes the slave of his fellow and performed work with him is exempt, provided that he did not cause him to desist from his master's work, such as if at that time the master had no work for him; and even though this one benefits, nevertheless, this one loses nothing, and on the contrary, it is pleasing to a person that the slave does not learn the ways of idleness. And if he caused him to desist from his master's work, this one pays the master like a laborer. And if this one claims money from the master of the slave, in any case it is forbidden, as it appears like ribbit [Bava Metzia 64b].

And so our sages, of blessed memory, said [ibid.]: One who dwells in the courtyard of his fellow without his knowledge must pay him rent if the courtyard is made for renting, and even though this man's way is not to rent, as he always finds a place to dwell for free, for he has caused him a loss of money; and this is not merely indirect causation but actual damage, and this dweller, in any event, benefits from this, and even if he did not damage the house at all. And even if the owner of the courtyard was here and remained silent, it appears to me that he is liable to pay, and this one cannot say to him: "Since you knew that my way is not to rent, if it was your desire to receive rent you should have protested," for this one can say to him: "Since you knew that I rent it out and you wanted to dwell without rent, you should have asked me." [And proof is from Bava Kamma 21a, see there and examine carefully].

And if that courtyard is not made for rent, he does not need to pay him rent; even though it is the way of this one who dwells there to rent a dwelling and he benefits from this, nevertheless, since this one lacks nothing, he is exempt. And furthermore, a house is more inhabited when people dwell in it than when it is empty, as it is written: "And the gate is smitten with desolation." And not only that, but even if the owner of this courtyard was always accustomed to renting it out, only that now it is not his way to rent it, we follow the present time. And similarly the reverse: if he was always accustomed not to rent it out, and now recently he began to rent it, it is called "made for rent" and he is liable to pay, as has been written.

And all this is specifically when he dwelt without his knowledge, such as when he was not in his house or if he was here but did not say to him "leave." However, if he said to him "leave the house" and he did not leave, he is obligated to give him all his rent, even if it is not made for renting and this one is also not accustomed to renting. For even though this one did not lose, nevertheless, against his will he does not have the ability to dwell, and this is not in the category of "compelling against the trait of Sodom." For that is only in a place where it is impossible for the protester to profit from that which he protests, but in this case, behold, it is possible for him to rent it out, but he does not desire this; therefore, we do not compel him to let him dwell in it, and all the more so that he has the ability to protest initially that he should not enter it. And that which our teacher, the Rema, wrote in section 6, that even though he removed the homeowner against his will from the house and he dwelt in it, that he does not need to pay if it is not made for rent—this is all when he removed him and he remained silent. But if he protested against him, even if he did not remove him, he is obligated to pay. And also in a case where he removed him and did not protest against him, it is specifically when the owners did not need to rent a dwelling because of this, such as if he had another house that it was not his way to rent out. But when he caused him a loss because of this, he is obligated to pay even when it is not his way to rent, for when he did not cause a loss it is no more than germa and he is exempt, but not when he caused a loss. And in these times, houses are generally standing to be rented, even if they have not yet been rented ever.

There is one who says that regarding a courtyard intended for rental which was stolen from him, even if he did not dwell in it, he is liable to pay the rent. For when he dwells in it, he is liable even if it is not his way to rent because this one is lacking, as has been written; and if so, even if he did not dwell in it, he nevertheless caused him a loss, and why should he not be liable? Nevertheless, the Rosh disagrees on this and holds that this is nothing more than indirect damage, like one who locks the house of his fellow, since nothing came into his hand from the loss of his fellow. But when he dwells in it, even though in essence he did not benefit because it is not his way to rent, nevertheless he has consumed that which belongs to his fellow and is liable to pay, for land remains in the possession of its owners. Our teacher, the Rema, ruled accordingly.

Some say that this which we said—that when the courtyard is not standing for rent he does not need to pay him rent—if he caused him even a minimal deficiency, such as if the house was new and this person caused a deficiency by blackening it, even though the loss of that blackening is only a minimal thing, nevertheless we roll upon him the entire rent according to what he benefited if it is his way to rent. For the reason he is exempt is because this one lost nothing; but since he lost, this one must pay according to the benefit. And according to this, if it is not the way of the dweller to rent, he only needs to pay what he caused him to lose, for behold, he has no benefit. And some say that even in such a case he is liable for everything [and see the Gra, subsection 21].

Some say that this which we say, that when the courtyard is not standing for rent he does not need to pay him rent, this is specifically when the one dwelling there did not reveal his intent that his desire was to give rent if he would not permit him to dwell in it for free; but if he revealed his intent so, he must give him rent. And it appears to me that this is specifically regarding a person who is accustomed to rent, for whom revealing intent is effective, as presumably his intention was to pay as he always does. But regarding a person who is not accustomed to rent, revealing intent is not effective, and so it appears from the Tur, rather he must stipulate explicitly that he shall pay him.

Some say that regarding that which we say that in a courtyard that is not for rent one does not need to pay him rent, even if the act was such that he rented this courtyard from Reuven because Reuven thought the courtyard was his and he was accustomed to renting it out, and afterwards it became known that it belongs to Shimon and Shimon was not accustomed to renting it out, he does not need to give rent to Shimon. And even if he already gave the rent to Reuven, Reuven must return it to him and not give them to Shimon, for since that which he rented from Reuven was a rental in error, it automatically has the status as if he did not rent it at all. And even though it has been explained that a disclosure of intent is effective, and behold he disclosed his intent that his desire was to pay, nevertheless, a disclosure of intent toward Reuven is not effective for Shimon [Sma]. And furthermore, it is possible to say according to what I wrote in the previous section, that a disclosure of intent is only effective for a person who is accustomed to renting, and regarding this law we can say that it is only effective for a person who is not accustomed to renting, and so implies the wording of the Tur, see there.

And so too the reverse, for that which we said regarding a courtyard designated for rent, he is obligated to pay him rent; even if he rented it from Reuven and gave him the rent, and it was found that it was not his but rather Shimon's, he must give Shimon his rent, even though the days of his rental have concluded [Shach]. And he shall claim from Reuven what he gave him. And even if he rented it from Reuven for less than its value, he must give Shimon all the rent that is fit to be given to him, and he shall go back and claim from Reuven what he gave him. And it is not similar to what was written in siman 341 regarding heirs who ate a borrowed cow, who only need to pay the value of the meat at a cheap rate because they can say, "Had we known it belonged to others, we would not have taken it at this price," for only regarding the eating of meat, which is not a necessity, can they say this. But regarding a dwelling, which is a necessity for a person, this is not a claim. And there is one who says that it is different here because he goes back and takes from Reuven everything he must give to Shimon; therefore, if the house was with him as a loan from Reuven, he only needs to pay like the lowest of rentals, since the renter has no one to go back to. And if he is a person who is not prone to rent, he is exempt [Netivot HaMishpat].

That which we said, that he must pay Shimon, our teacher, the Rema, wrote that this is specifically when Shimon or his agents were here and were making efforts to rent it out; but if he is not in the city and there is no one making efforts to rent it out, it is like a courtyard that is not set for rent, and even though he rented it from Reuven, he does not need to give Shimon anything, as has been written. Thus far his words. And it appears to me that this is specifically when, at the time Shimon left from here, no person dwelt in it; but if a person dwelt in it and Reuven removed him and rented it to this renter, he is liable to pay in any case, for this is like a courtyard that is set for rent [and the difficulty of the Ketzot HaChoshen on the Shiltei HaGibborim is settled]. And from this we learned that if Reuven left his house empty and went from the city, and Shimon entered the house until Reuven arrived, he does not need to pay for his dwelling, for since he left it empty, it is as if it is not set for rent [Shiltei HaGibborim].

And if the renter rented from Reuven for a high price and afterwards it was found that it belongs to Shimon, he shall only pay him according to what others rent for, as the transaction he made with Reuven is nothing. And even if he already gave to Reuven, Shimon only takes as we have written, and the renter extracts from Reuven what he gave him. However, if the money came into the hand of Shimon, who extracted it from Reuven, and he claims that he also would not have rented it for less than this price, out of doubt we do not extract it from him. But to seize from the renter is not within his power, and if he even seized from the renter, we extract it from him, for he has power only over the money that the renter already paid to Reuven [it appears to me].

An Israelite who fled from the city and the oppressor took his house and lent it or rented it to others, the one who dwells in it is not required to pay rent to the owners, for it was not standing for rent; for if the second Israelite were not dwelling in it, the oppressor would have dwelt in it. And this is certainly so from what was written at the end of siman 22.

One who rents a house from his fellow and went back and rented it to others for more than he rented it for—if he had permission to rent it to others in the manner that was explained in siman 316, the profit is his. And if he did not have permission to rent it out, the profit belongs to the owners. For when he had permission to rent it out, the house is his for all the days of his rental, and it is not relevant in this case to say that he is "conducting business with his fellow's cow" [Ktzot HaChoshen]. And according to this, when Reuven rented movables to Shimon and Shimon rented them to Levi, and he did not have permission to rent them out—as a renter is not permitted to rent out movables—the rent belongs to Reuven [Netivot HaMishpat]. And likewise, if Reuven rented a house to Shimon and Shimon also brought Levi into his house, where he did not have permission to do so, Levi pays rent to Reuven. And it is not relevant to say that since he rented it to Shimon, it is regarding Levi like a courtyard that is not for rent, for there is certainly damage in the fact that many people dwell in it; and in such a case, even in a case of one not for rent, he is liable [ibid.]. And even if the loss is small, he pays the whole amount, as I wrote in section 18.

One who says to his fellow, "Dwell in my courtyard"—if the courtyard is standing for rent and the tenant's way is to rent, he must pay according to what they appraise, for his intention was not that he should dwell for free, as was written in siman 246. And in a courtyard that does not stand for rent, he is certainly exempt, for even when he did not say to him "dwell" he is exempt, and we do not say that when he said to him "dwell" it is worse because his intention was for rent [the Gra]. And the same applies in a courtyard that stands for rent and a person who is not prone to rent; when he said to him "dwell" he is exempt, since he did not dwell there of his own volition but rather by his command, there is no reason to obligate him in payment. For since he is not prone to rent and he commanded him to dwell, if his intention was that he should pay him, he should have specified [the Shach]. And such is the primary ruling in law.

Two partners in a house, and one of the partners rented out the entire house without the knowledge of the second, the renter must give the second partner his portion, and he does not need to pay the lessor the entire rent; rather, he gives him his half. And if he gave him all of it, the second extracts his portion from the renter [Levush]. And even though one of the partners has the authority to rent out, and the renter to rent, when the second does not protest—for any partner who sold or bought, his actions are sustained when the second did not protest against him—nevertheless, to pay rent for a house, which is a fixed thing, he must pay each one his portion. This is not the case with business transactions, where he does not specifically need to give to each one, as is proven from what is written in siman 176 [it appears to me]. But if he did not rent the entire house, only the portion of the partner who rented to him—that is, he rented only half the house—he does not need to give the second anything. And even if they are partners in the entire house, nevertheless, since he rented only according to the portion that this one possesses, he must pay him the rent and not the second. And if the partner must give a portion of the rent to his partner, there is one who is uncertain about this, for perhaps he can say: "I rented out my portion, and you rent out your portion or dwell with this one to whom I rented." And it appears to me that certainly if each portion is clarified to them, he can say this to him; but when they are partners in the entire house and do not dwell there themselves but rather rent to others, certainly everything that one of them does is for the sake of the second as well, as is proven from what is written in siman 122, see there.

It has already been explained that a gazlan acquires through a change in action (shinui ma'aseh). Therefore, if he stole dyes with which one colors, and he ground them and soaked them in water and dyed with them, he has acquired them through change and pays their value as they were worth at the time of the theft. And if he stole soaked dyes and dyed his own wool or garment with them, this is not called a change because the dye is placed before us upon the wool and the garment. Nevertheless, he must pay him the value of the dyes, for he has caused their loss, and he cannot remove the dye from upon the wool and the garment, for when he removes it, he will destroy them entirely [Levush]. And if he stole wool and soaked dyes from one man and dyed the wool with the dyes, he can perform a proper return (hashavah me'alyata) by returning the wool as it is, dyed, for it has increased in value because of the dye upon it, and the victim of the theft is repaid for the wool and the dyes through the return of the dyed wool [ibid.]. And if the dyed wool decreased in value such that it is now worth only what it was worth when it was white, and the victim of the theft demands from the gazlan the value of the dyes, for he says to him: "Had you returned the wool and the dyes to me, I would have sold the wool at the price I sold it now, and with the dyes I would have dyed some garment which would have increased in value because of the dye," it is a legal doubt (sefeika de-dina) whether the appearance is a substantial matter (hazuta milta hi) and he has thus returned the dyes with the wool according to what he stole, or if it is not a substantial matter and is merely an aesthetic and not a physical reality, and it is not a return for the dyes since he does not receive a higher price for the dyed wool, and he must pay him the value of the dyes separately as they were worth at the time of the theft. And since it is a legal doubt, one does not extract from the hand of the gazlan. And if the victim of the theft seized [the payment], one does not extract it from his hand according to the opinion of the Rambam, for seizing is effective in a legal doubt, and according to those who disagree with him, seizing is not effective [Be'er HaGolah]. And this is specifically when the wool decreased in value after the dyeing, but if it decreased in value at the time of the dyeing, he is like one who causes damage and is liable by the laws of garmi. But when it decreased in value afterward, he did not damage it at the time of the dyeing, and he says to him: "Behold, yours is before you" [Shach]. But when he dyed his own wool with them, he is liable in any case to pay even if the wool did not improve, for the victim of the theft says to him: "Give me the dyes that you caused me to lose," for it is impossible to remove them from upon the wool, as has been written [Sma].