Bava Kamma - Daf 95
- Rebbe Meir’s opinion that a גזלן also returns the shearings and offspring of a stolen animal
It was taught in a Baraisa: Rebbe Meir says that if one stole a sheep and sheared it, or a cow and it gave birth, משלם אותה ואת גיזותיה ואת ולדותיה – he pays (i.e., returns) it, its shearings, and its offspring. Two more opinions are recorded, which are analyzed below. The Gemara asks if Rebbe Meir holds שינוי does not acquire (so the robber does not acquire the shorn wool, nor the born fetus), or although he generally holds שינוי does acquire, he penalized the robber to return the wool and calf. The practical difference is where the animal physically changed to its detriment, whether the robber can return the animal as is. A Mishnah is eventually quoted, in which a dyer dyed someone’s wool the wrong color (which Rebbe Meir considers like stealing it), where Rebbe Meir says he pays the owner the original value of the wool (not its new increased value). This proves that his ruling is based on a penalty, which does not apply to this unintentional error. In another version, it is known that Rebbe Meir penalized the robber, and the question is whether he penalizes an unintentional robber as well. The above Mishnah proves that he does not.
- Machlokes between Rebbe Yehudah and Rebbe Shimon: שבח שעל גבי גזילה
In the above Baraisa, Rebbe Yehudah says: גזילה חוזרת בעיניה – the stolen [animal] returns to its owner as is, without the shorn wool and calf. He additionally pays the value of the wool or fetus at the time of the robbery. Rebbe Shimon says: רואין אותה כאילו היא שומא אצלו בכסף – we view it as if it was appraised and placed with him according to its cash value at the time of the robbery, and he pays that amount. Rav Zevid explains: בשבח שעל גבי גזילה קמיפלגי – they argue about improvements which are still attached to the stolen item (e.g., the animal grew wool or became pregnant in his possession). Rebbe Yehudah holds they belong to the original owner, (since he says the animal is returned “as is,” including additional improvements). Rebbe Shimon, who views the animal as if it was appraised at the robbery, holds all improvements belong to the robber (who acquires them with שינוי even while attached). Rav Pappa says both agree that the robber owns improvements that are attached to the animal. Rebbe Yehudah holds he owns them completely, whereas Rebbe Shimon holds he owns them למחצה לשליש ולרביע – for a half, a third, or a quarter (the customary rate for an animal’s caretaking).
- If the victim can buy out the robber’s share in the improvement acc. to Rebbe Shimon
Rav Ashi related a question raised regarding Rebbe Shimon’s opinion, that the robber has a right to a share of the improvements attached to the animal. When the robber’s share is paid out, בדמי מסלקינן ליה – is it with money that we remove him, או דילמא מבשרא שקול – or perhaps he takes his share from the meat of the calf itself? This is resolved from a statement of Shmuel: שלשה שמין להן השבח – There are three people for whom we assess the improvements they made to the land, ומעלין אותן בדמים – and we remove them from their share in the land through a money payment. (1) A bechor pays cash to his brother for his share in improvements they made to the estate before dividing it (since the bechor does not receive a double portion in the subsequent improvements), (2) a creditor pays a buyer who improved the land that the creditor collects, and (3) a creditor pays orphans who improved the land he collects for the father’s debt. Tosafos explains that in our case, too, the victim may buy out the robber’s share.
