Babylonian Talmud: Tractate Baba Kamma

Folio 96a

as this is so only where the amount of the debt owing to the creditor covers both the land and the increment, whereas the former ruling¹  applies where [the debt due to him] is only to the extent of the land. He rejoined: I grant you that on the view²  that [even] if the purchaser possesses money he has no right to bar the creditor from land by paying in specie, your argument would be sound, but according to the view that a purchaser possessing money can bar the creditor from the field by paying him in specie, why should he not say to the creditor, 'If I had had money, I would surely have been able to bar you from the whole field [by paying you in specie]; now also therefore I am entitled to be left with a griva³  of land corresponding to the value of my amelioration'?⁴  — He replied: We are dealing here with a case where the debtor expressly made that field a security, as where he said to him: 'You shall not be paid from anything but from the field.'⁵

Raba stated: [There is no question] that where the robber improved [the misappropriated article] and then sold it, or where the robber improved [the misappropriated article] and then left it to his heirs, he has genuinely sold or left to his heirs the increment he has created.⁶  Raba [however] asked: What would be the law where [after having bought the misappropriated article from the robber] the purchaser improved it? After asking the question he himself gave the answer: That what the former sold the latter, was surely all rights⁷  which might subsequently accrue to him.⁶

Raba [again] asked: What would be the law where a heathen⁸  [misappropriated an article and] improved it? — Said R. Aha of Difti to Rabina: Shall we trouble ourselves to make an enactment⁹  for [the benefit of] a heathen? — He said to him: No; the query might refer to the case where. e.g., he sold it to an Israelite. [But he retorted:] Be that as it may, he who comes to claim through a heathen [predecessor], could surely not expect better treatment than the heathen himself. — No: the query could still refer to the case where, e.g., an Israelite had misappropriated an article and sold it to a heathen who improved it and who subsequently sold it to another Israelite. What then should be the law? Shall we say that since an Israelite was in possession at the beginning and an Israelite was in possession at the end, our Rabbis would also here make [use of] the enactment, or perhaps since a heathen intervened our Rabbis would not make [use of] the enactment? — Let it remain undecided.

R. papa stated: If one misappropriated a palm tree from his fellow and cut it down, he would not acquire title to it even though he threw it from [the other's] field into his own land, the reason being that it was previously called palm tree and is now also called palm tree.¹⁰  [So also] where out of the palm tree he made logs he would not acquire title to them, as even now they would still be called logs of a palm tree.¹⁰  It is only where out of the logs he made beams that he would acquire title to them.¹¹  But if out of big beams he made small beams he would not acquire title to them,¹²  though were he to have made them into boards he would acquire title to them.¹¹

Raba said: If one misappropriated a Lulab¹³  and converted it into leaves he would acquire title to them, as originally it was called Lulab whereas now they are mere leaves.¹¹  So also where out of the leaves he made a broom he would acquire title to it, as originally they were leaves whereas now they form a broom,¹⁴  but where out of the broom he made a rope he would not acquire title to it since if he were to undo it, it would again become a broom.

R. papa asked: What would be the law where the central leaf¹⁵  of the Lulab became split? — Come and hear: R. Mathon said that R. Joshua b. Levi stated that if the central leaf of the Lulab was removed the Lulab would be disqualified [for ritual purposes].

1. Ordering payment for the amelioration.
2. B.M. 15b and 110b.
3. The size of a field needed for a se'ah of seed.
4. Why then should the creditor distrain on the whole field together with the amelioration?
5. In which case the purchaser can in no circumstance bar the creditor from the field.
6. So that the purchaser (or heir) will be entitled to the half or third or quarter in profits to which the robber would have been entitled, according to the view of R. Simeon.
7. Cf. supra p. 32.
8. Who neither respects nor feels bound by Rabbinic enactments.
9. That according to R. Simeon payment is to be made for amelioration to the extent of a half or third or quarter.
10. [The change involved does not confer ownership enabling him to make restitution by payment in money.]
11. V. p. 552. n. 6.
12. V. p. 552. n. 5.
13. I.e., a palm branch used for the festive wreath on the Feast of Tabernacles in accordance with Lev. XXIII, 40.
14. V. p. 543, n. 6.
15. Cf. Suk. 32a and Rashi.

Now, would not the same law apply where it was merely split?¹  — No; the case where it was removed is different, as the leaf is then missing altogether. Some [on the other hand] read thus. Come and hear what R. Mathon said, that R. Joshua b. Levi stated that if the central leaf was split it would be considered as if it was altogether removed and the Lulab would be disqualified;¹  which would solve [R. papa's question].

R. papa [further] said: If one misappropriated sand from another and made a brick out of it, he would not acquire title to it, the reason being that it could again be made into sand, but if he converted a brick into sand he would acquire title to it. For should you object that he could perhaps make the sand again into a brick, [it may be said that] that brick would be [not the original but] another brick, as it would be a new entity which would be produced.

R. Papa [further] said: If one misappropriated bullion of silver from another and converted it into coins, he would not acquire title to them, the reason being that he could again convert them into bullion, but if out of coins he made bullion he would acquire title to it. For should you object that he can again convert it into coins, [my answer is that] it would be a new entity which would be produced. If [the coins were] blackened and he made them look new he would thereby not acquire title to them,²  but if they were new and he made them black he would acquire title to them, for should you object that he could make them look again new, [it may be said that] their blackness will surely always be noticeable.

THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY. What additional fact is the expression. THIS IS THE GENERAL PRINCIPLE intended to introduce? — It is meant to introduce that which R. Elai said: If a thief misappropriated a lamb which became a ram, or a calf which became an ox, as the animal underwent a change while in his hands he would acquire title to it, so that if he subsequently slaughtered or sold it, it was his which he slaughtered and it was his which he sold.³

A certain man who misappropriated a yoke of oxen from his fellow went and did some ploughing with them and also sowed with them some seeds and at last returned them to their owner. When the case came before R. Nahman he said [to the sheriffs of the court]: 'Go forth and appraise the increment [added to the field].' But Raba said to him: Were only the oxen instrumental in the increment, and did the land contribute nothing to the increment?⁴  — He replied: Did I ever order payment of the full appraisement of the increment? I surely meant only half of it. He, however, rejoined:⁵  Be that as it may, since the oxen were misappropriated they merely have to be returned intact, as we have indeed learnt: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE] AT THE TIME OF THE ROBBERY. [Why then pay for any work done with them?] — He replied: Did I not say to you that when I am sitting in judgment you should not make any suggestions to me, for Huna our colleague said with reference to me that I and 'King' Shapur⁶  are [like] brothers in respect of civil law? That person [who misappropriated the pair of oxen] is a notorious robber, and I want to penalise him.

MISHNAH. IF ONE MISAPPROPRIATED AN ANIMAL AND IT BECAME OLD, OR SLAVES AND THEY BECAME OLD, HE WOULD HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY.⁷  R. MEIR, HOWEVER, SAYS THAT IN THE CASE OF SLAVES⁸  HE MIGHT SAY TO THE OWNER: HERE, TAKE YOUR OWN. IF HE MISAPPROPRIATED A COIN AND IT BECAME CRACKED, FRUITS AND THEY BECAME STALE OR WINE AND IT BECAME SOUR, HE WOULD HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY.⁷  BUT IF THE COIN WENT OUT OF USE, THE TERUMAH⁹  BECAME DEFILED,¹⁰  THE LEAVEN FORBIDDEN [FOR ANY USE BECAUSE] PASSOVER HAD INTERVENED,¹¹  OR IF THE ANIMAL [HE MISAPPROPRIATED] BECAME THE INSTRUMENT FOR THE COMMISSION OF A SIN¹²  OR IT BECAME OTHERWISE DISQUALIFIED FROM BEING SACRIFICED UPON THE ALTAR,¹³  OR IF IT WAS TAKEN OUT TO BE STONED,¹⁴  HE CAN SAY TO HIM: 'HERE, TAKE YOUR OWN.'

GEMARA. R. Papa said: The expression IT BECAME OLD does not necessarily mean that it actually became old, for [the same law would apply] even where it had otherwise deteriorated. But do we not expressly learn. IT BECAME OLD?¹⁵  — This indicates that the deterioration has to be equivalent to its becoming old, i.e., where it will no more recover health. Mar Kashisha, the son of R. Hisda, said to R. Ashi: It has been expressly stated in the name of R. Johanan that even where a thief misappropriated a lamb which became a ram, or a calf which became an ox,¹⁶  since the animal underwent a change while in his hands he would acquire title to it, so that if he subsequently slaughtered or sold it, it was his which he slaughtered and it was his which he sold.¹⁷  He said to him: Did I not say to you that you should not transpose the names of scholars?¹⁸  That statement was made in the name of R. Elai.¹⁹

R. MEIR, HOWEVER. SAYS THAT IN THE CASE OF SLAVES HE MIGHT SAY TO THE OWNER, 'HERE TAKE YOUR OWN.' R. Hanina b. Abdimi said that Rab stated that the halachah is in accordance with R. Meir. But how could Rab abandon the view of the Rabbis²⁰  and act in accordance with R. Meir? — It may, however, be said that he did so because in the text of the [relevant] Baraitha the names were transposed. But again how could Rab abandon the text of the Mishnah and act in accordance with the Baraitha?²¹  — Rab, even in the text of our Mishnah, had transposed the names. But still what was the reason of Rab for transposing the names in the text of the Mishnah because of that of the Baraitha? Why not, on the contrary, transpose the names in the text of the Baraitha because of that of our Mishnah? — It may be answered that Rab, in the text of our Mishnah too, was taught by his masters to have the names transposed. Or if you like I may say that [the text of a Mishnah] is not changed [in order to be harmonised with that of a Baraitha] only in the case where there is one against one, but where there is one against two,²²  it must be changed [as is indeed the case here]; for it was taught:²³  If one bartered a cow for an ass and [the cow] gave birth to a calf [approximately at the very time of the barter], so also if one sold his handmaid and she gave birth to a child [approximately at the time of the sale], and one says that the birth took place while [the cow or handmaid was] in his possession and the other one is silent [on the matter], the former will obtain [the calf or child as the case may be], but if one said 'I don't know', and the other said 'I don't know', they would have to share it. If, however, one says [that the birth took place] when he was owner and the other says [that it took place] when he was owner, the vendor would have to swear that the birth took place when he was owner [and thus retain it], for all those who have to take an oath according to the law of the Torah, by taking the oath release themselves from payment;²⁴  this is the view of R. Meir. But the Sages say that an oath can be imposed neither in the case of slaves nor of real property.²⁵  Now [since the text of our Mishnah should have been reversed,²⁶  why did Rab²⁷  state that] the halachah is in accordance with R. Meir? Should he not have said that the halachah is in accordance with the Rabbis?²⁷  — What he said was this: According to the text you taught with the names transposed, the halachah is in accordance with R. Meir.²⁷

1. [Should it be disqualified, it would, if occurring whilst in the possession of the robber, be considered a change and confer ownership.]
2. V. p. 543. n. 5.
3. Supra 379.
4. Why then should the whole amount of the increase due to the amelioration be paid to the plaintiff?
5. Raba to R. Nahman.
6. Meaning Samuel, who was a friend of the Persian King Shapur I, and who is sometimes referred to in this way; cf. B.B. 115b. [To have conferred the right of bearing the name of the ruling monarch, together with the title 'tham', 'mighty'. was deemed the highest honour among the Persians, and 'Malka', 'King'. is apparently the Aramaic counterpart of the Persian title 'Malka' (v. Funk, Die Juden in Babylonien. I, 73). On Samuel's supreme authority in Babylon in matters of civil law, v. Bek. 49b.]
7. As the change transferred the ownership to him.
8. Who are subject to the law applicable to immovables, where the law of robbery does not apply.
9. V. Glos.
10. And thus unfit as food; cf. Shab. 25a.
11. Cf. Pes. II. 2.
12. Such as in Lev. XVIII, 23; cf. also supra p. 229.
13. Such as through a blemish, hardly noticeable, as where no limb was missing; cf. Zeb. 35b and 85b; v. also Git. 56a.
14. As in the case of Ex. XXI. 28.
15. In which a temporary deterioration could hardly be included.
16. [Although there is an inevitable and natural change.]
17. [And he would be exempt from the threefold and fourfold restitution.]
18. Lit., 'people'.
19. And not in that of R. Johanan: supra p. 379.
20. The representatives of the anonymous view of the majority cited first in the Mishnah.
21. In accordance with the anonymous view of the majority cited in the Baraitha.
22. I.e., where two Baraithas are against the text of one Mishnah.
23. B.M. 100a, q.v. for notes.
24. Shebu. VII, 1.
25. Cf. Shebu. VI, 5. It is thus evident that it was the majority of the Rabbis and not R. Meir who considered slaves to be subject to the law of real property.
26. In which case it was the Rabbis who maintained that slaves are subject to the law of real property.
27. Meaning that slaves are on the same footing as real property.