Siman 371

The Rambam wrote in chapter 8: Land can never be stolen; rather, it remains in the possession of its owners. Even if it was sold to a thousand people one after another and the owners despaired, it returns to the victim of the theft without payment. Anyone from whose hand it is removed returns to the one who sold it to him, and the second seller returns to the first seller, until the purchaser from the gazlan returns to the gazlan and takes from him. Thus far his words. And there are some of our teachers who hold that even though it cannot be stolen, nevertheless, ye'ush applies to land, and so it is explicitly stated in the Yerushalmi [Tosafot Bava Batra 44a]. And the Rambam, of blessed memory, perhaps holds that certainly regarding a matter of prohibition ye'ush is effective, but not regarding acquisition, for there is no change of domain here since it remains in its place. According to this, regarding slaves it is possible that it is effective even though they are compared to land. And some say that the Yerushalmi forbids it rabbinically, but from the Torah, ye'ush is not effective [Tosafot Sukkah 30b]. And there is one who says that in truth the Yerushalmi disagrees with our Talmud, and the halacha is like our Talmud [Hagahot Maimoniyot ibid.]. According to this, also regarding slaves ye'ush is not effective. But according to the first resolution, ye'ush is effective for slaves if the gazlan sold or gave them to another, for there is ye'ush and change of domain. And even though the Gemara equates lands to slaves and documents that they cannot be stolen [Bava Kamma 117b], this is regarding the fact that they always remain in the possession of the owners when they are damaged or improved, and he always says to the victim of the theft, "Behold, yours is before you" (and with this, what Tosafot wrote in Bava Metzia 61a s.v. "ela" is settled). But when he despaired and sold it to another, there is a distinction between them, for land does not move from its place, unlike slaves and documents. And so it appears primary according to the opinion of the Rambam, for there are several proofs that ye'ush is effective for slaves, and so wrote the Ra'avad in chapter 9 of Gezeilah. Therefore, what the Rambam did not write—that slaves and documents also cannot be stolen—is settled, for the Gemara only equates them to lands in that when they change for the worse he says to him "Behold, yours is before you." And the Rambam wrote this law regarding slaves in chapter 3 of Gezeilah, as has been explained in siman 363. And regarding documents, this change is not applicable, and if they were completely lost he is liable by the laws of garmi, as has been explained in siman 386. And there is no practical difference except regarding an oath, that he does not need to pay the principal, the fifth, and the guilt offering, and the Rambam wrote it in chapter 8 of Gezeilah (the difficulty of the Ra'avad, of blessed memory, is settled). Also, this fact that ye'ush is not effective for land is when a gazlan took it and he cannot remove him through the power of the courts; but when he can remove him through the courts and did not rescue it, such ye'ush is effective, for it is like complete hefker, and hefker is effective for land (see Magid Mishneh 5). And so, if he is afraid of the gazlan that he might kill him and gives him land, the land belongs to the gazlan, for because of his duress he resolved and transferred ownership (and what is written regarding the sikarikon and in Gittin 58b is settled, and so wrote the Ketzot HaChoshen, and according to what I have written, the difficulty of the Netivot HaMishpat is settled; and examine it).

Since land cannot be stolen, therefore if damage occurred to it that came of its own accord, such as if a river flooded it, the responsibility for the loss is not upon the robber, for it remains in the possession of its owners, and he says to him: "Behold, yours is before you." And just as it is in his possession to his detriment, that he can say to him: "Behold, yours is before you," so too it is in his possession to his benefit, such as if it increased in value or if he made use of it. For regarding movable property, he only pays according to the value at the time of the robbery, and if he performed work with them, he is exempt, as has been explained in siman 363. But regarding land, it is not so; rather, if he made use of it and ate its fruits, or lived in the house, or rented it out and took the rent, and the like, he must pay for what he benefited from it. And so too regarding slaves, as has been explained there.

That which we have said, that when the land has deteriorated it remains in the domain of the victim of the robbery and he says to him "behold yours is before you," this is when it deteriorated on its own. However, if the robber damaged it with his own hands, such as if he dug in it pits, ditches, or caves, or if he cut down the trees and ruined the springs and destroyed the buildings, he is obligated to provide him a house or a field as it was at the time of the robbery, or he shall pay the value of what he damaged. And so too regarding improvement, when he improved it with his hands, the victim of the robbery must pay him as was written in siman 375. And if they robbed it from the robber and the victim of the robbery cannot extract it from the second robber, the first is obligated to provide him a field like it or pay its value, and he cannot say to him "behold yours is before you." And this matter is because of the penalty they penalized him (Yerushalmi Bava Kamma chapter 10, halacha 10). However, from what will be explained, it implies that according to the law it is so:

And specifically when the second robber only robbed this land, but when he robbed additional lands, it is considered a regional plague, and he says to him, "Behold, yours is before you," for even from the victim of the robbery he would have robbed it, just as he robbed additional lands. But when he only robbed this land, the first cannot say so, for it is evident that the second only wanted to rob from him (as is explained in Bava Kamma 116). And this is what the Rambam and the Tur and Shulchan Aruch wrote: If one robbed a field and oppressors took it, if it is a regional plague, such as if they took the fields or houses of all the people of the region, he says to him, "Behold, yours is before you." And if it was taken on account of the robber, he is obligated to provide him with another field. Thus far their words. And that which they wrote "of all the people of the region" is not exact, but rather it means that they took many (as is explained there in the Gemara). And so too, if they coerced the robber to show them his fields, or if they said to him, "Show us all that you have," and he showed them also this field that he robbed among his fields and the oppressors took it, he is obligated to provide the victim of the robbery with another field like it or give its value, for he was negligent in showing them this field; since they did not coerce him to show anything but his own, he should not have shown them this field as well. Therefore, if they coerced him to show them this field, he is exempt. And in siman 388 this will be explained with the help of Heaven.