Siman 373

If one stole a field and sold it, and the purchaser did not know that it was stolen and he improved it, the owner takes it from the purchaser as it is with its improvement. The purchaser collects all of the improvement, except that from the owner he collects according to the law of one who descends to a field without permission, for he indeed descended without his permission. Therefore, if the improvement is greater than the expenditure, he takes the expenditure from the owner, and the remainder up to the value of the improvement he takes from the gazlan along with the principal. However, the principal he collects from encumbered properties, for one who purchases land and it is seized from him collects from other purchasers, as has been explained in siman 225, and even if he sold it to him only with witnesses, as has been explained in siman 116, and even if acharayut was not written in the deed, unless he specified in the deed that he is selling without acharayut. But the improvement he collects from unencumbered properties because the improvement is not known to other purchasers; and once he stood in judgment regarding the improvement, he collects from purchasers who bought from the gazlan afterwards, for from the time of standing in judgment there is a rumor, as has been explained in siman 372. And if the expenditure is greater than the improvement, he takes from the owner expenditure in the amount of the improvement, and the rest of the expenditure he takes from the gazlan, for regarding him he is like one who descends with permission who takes all the expenditure [it appears to me]. And if the improvement is equal to the expenditure, he takes it from the owner, and from the gazlan he takes only the principal. And if it is an improvement that came of itself, such as a palm tree that grew thick or the like, he takes nothing from the owner, and from the gazlan he takes the entire improvement [Tur].

If the field was improved while in the possession of the victim of the robbery, and the robber damaged it, and the purchaser improved it, and now it is as it was in the possession of the victim of the robbery, some say that nevertheless he takes the expenses up to the amount of the improvement from the victim of the robbery, for regarding him it is like one who descends into a field without permission. And there are those who disagree, for since it was improved while in his possession, it is regarding him like expenses that exceed the improvement, such that he takes everything from the robber. And according to the first opinion, the victim of the robbery takes from the robber the improvement that he must provide to the purchaser. And the primary view is like the first opinion [the Gra].

If he bought it for a thousand dinar and now, at the time of the robbery victim's seizure, it is only worth five hundred, some say that even though if a creditor were seizing it he would only collect five hundred from the seller—as written in siman 116, section 4, according to the second opinion—nevertheless, when the robbery victim seizes it, the robber pays a thousand. For since the matter was revealed that it was never his, the status of a sale does not apply to this, and he must pay the money that he gave [Nimukei Yosef, first chapter of Bava Metzia, and the Ran]. And even though perforce the status of a sale applies to it, for if not so, how could he take the appreciation, as it would appear like ribbit, as will be explained regarding one who recognized that it was not his; nevertheless, regarding this matter that he should lose from the principal, the status of a sale does not apply to it. And some say that if he did not recognize that it was stolen, it is a complete sale, and he only pays him according to its value now [Shita Mekubetzet in the name of the Ritva, ibid.]. And if it increased in price, it appears to me that according to everyone he takes according to its value now.

If the buyer recognized the land at the time he bought it as being stolen, the sages, of blessed memory, said [ibid.] that he only collects the principal from the robber. For since he knew it was stolen, he did not descend to it with the intent of a purchase, and the money he gave him was only as a type of loan; and if he were to collect more than the principal from him, it would be like ribbit. However, he collects the principal from the robber, whether in land or in movables [Shach], and we do not say that he gave the money as a gift. And from the victim of the robbery, he collects the improvement according to the law of one who descends without permission, for regarding the victim of the robbery, there is no difference whether he recognized it or did not recognize it as being stolen. He only has from the expenditure up to the amount of the improvement, and he loses anything in excess of the expenditure. He collects the principal from the robber from encumbered properties, though there are those who disagree on this [the Gra], and he does not collect spontaneous improvement at all.

Our teacher, the Rema, wrote that there are those who say that since he knew it was not his, he has lost even the expenditure. Thus far his words. The later authorities disagree regarding this, for he takes his expenditure up to the amount of the improvement, as even from a gazlan himself he takes his expenditure, as written in siman 372. However, this is certain: if it was improved while with the owner and the gazlan damaged it, and the buyer improved it, he must take from the gazlan, and from the owner he cannot take, as it appears like ribbit [Netivot HaMishpat]. However, this is according to the "there are those who disagree" in section 2, but according to the first opinion, he takes from the owner. And it is possible that in such a case, even according to this opinion he does not take when he knew the gazlan damaged it; for since he knew it was stolen and that it was improved while with the owner, and presumably he would not be reconciled to give him what the gazlan damaged, certainly he originally descended with the intent not to take. This requires further study for the law.

Some say that if the robber-seller explicitly stated to the buyer at the time of the sale that he would pay him for the enhancement and they performed a kinyan with him on this, or if the robber has other land, then he may collect the enhancement from him. For the reason he does not collect is because it appears like ribbit, and when they perform a kinyan with him it does not appear like ribbit and is like a sale; and similarly, when he has land and collects land and not money, it does not appear like ribbit. However, if he did not explicitly accept upon himself responsibility for the enhancement, even though he accepted responsibility in general, he does not collect [the Tur in the name of the Ramah]. And there are those who disagree with all of this, for since he recognized that it was not his, what benefit is there in the kinyan or in the land? For behold, the money only has the status of a deposit, and if he takes more it is like ribbit [and so it appears from Tosafot Bava Metzia 15b, s.v. "Ma'ot"].

The produce that the buyer ate while it was in his possession, he must pay to the robbed party, even when he did not know that it was stolen. For since it never belonged to the seller, he has eaten produce from a field that is not his. And it appears to me that he only needs to pay according to the cheap market price, and his law is like heirs whose father left them a borrowed cow and they thought it was his and slaughtered it and ate it, who pay the value of the meat at a cheap price, as is written in siman 341. And it is possible to say that since here he will go back and collect from the robber, he must pay according to their value. And his law regarding the produce with the robber is like the law of the improvement: that if he did not know it was stolen, he collects from unencumbered properties, and if he knew, he does not collect anything from him, for it appears like interest. And even though there are those who disagree on this and hold that the robbed party only takes produce that he finds of its produce in the field at the time of his seizure from the buyer, and not what he already ate, nevertheless, the primary rule in law is that he takes even the produce that he ate, for so ruled the Rambam and the Tur and Shulchan Aruch. And so we find in II Kings [8] that the king commanded to return to the woman all the produce of the field from the day she left the field [the Maggid Mishneh].

If the seller claimed that the buyer knew that it was stolen, and the buyer claims that he did not know, it is upon the seller to bring proof. And even though the buyer comes to extract from him and the rule is "the burden of proof is upon the claimant," nevertheless, here it is upon the seller to bring proof, for it is a strong presumption that a person does not throw away his money for nothing, and certainly he did not know [Sma]. And this is like testimony through which we extract money. The seller can impose upon him an acceptance of a ban that he did not know, but he cannot impose an oath upon him [it appears to me]. And see what I wrote in siman 374.