Bava Kamma 95bבבא קמא צ״ה ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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95bצ״ה ב

גובה את הקרן מנכסים משועבדים ואת השבח מנכסים בני חורין דאתא בעל ארעא ושקיל ארעיה ושבחיה

he can collect the principal, i.e., what he paid for the field, from the robber’s liened property that has been sold. But he can collect the enhanced value, i.e., the value of the improvements made to the field, only from unsold property. Why are both of these collected from the robber? Because the owner of the field came and took both his land and its enhanced value.

מאי לאו בעם הארץ דלא ידע דקרקע נגזלת או אינה נגזלת ואפי' הכי קאתי בעל קרקע ושקיל לארעא ושבחה ושמע מינה בשוגג נמי קניס אמרי לא בלוקח תלמיד חכם וידע

The Gemara clarifies: What, is it not speaking of a purchaser who is an ignoramus, who does not know whether property can be stolen or cannot be stolen, and when he purchased stolen land from the robber, he did so unintentionally, since he was under the mistaken impression that this land belonged to the robber who sold it? And even so, the owner of the land can come and take the land and its enhanced value. And if so, one may learn from the baraita that Rabbi Meir penalizes even one who acquires stolen items unintentionally. The Sages say in response: No, it is speaking of a purchaser who is a Torah scholar, and he knew that the robber had no right to sell this land. The purchaser is therefore penalized and is required to return the enhanced value of the land as well.

תא שמע לצבוע לו אדום וצבעו שחור שחור וצבעו אדום ר' מאיר אומר נותן לו דמי צמרו דמי צמרו אין דמי צמרו ושבחו לא

The Gemara again tries to determine the scope of the penalty: Come and hear what was taught in a mishna (100b): If one gave wool to a dyer to dye it red for him and he dyed it black, or to dye it black and he dyed it red, Rabbi Meir says: The dyer gives the owner of the wool the value of his wool, since the dyer violated the owner’s instructions. It can be inferred from the mishna: The value of his wool, yes, he must give; but the value of his wool and its enhanced value, i.e., the amount by which the value of the wool increased because it was dyed, no, he is not required to give.

ואי סלקא דעתך בשוגג נמי קניס דמי צמרו ושבחו בעי למיתבא ליה אלא לאו ש"מ במזיד קניס בשוגג לא קניס ש"מ:

And if it enters your mind to say that Rabbi Meir penalizes one who acquires a stolen item unintentionally as well, the dyer should be required to return the value of his wool and its enhancement to him. Rather, must one not conclude from the mishna that if it was done intentionally, Rabbi Meir penalizes the robber, but if it was done unintentionally he does not penalize him? The Gemara affirms: Learn from the mishna that this indeed is the reasoning of Rabbi Meir.

רבי יהודה אומר גזילה חוזרת בעיניה ר"ש אומר רואין אותה כאילו היא שומא אצלו בכסף מאי בינייהו

§ The Gemara continues its discussion of the baraita. Rabbi Yehuda says: A stolen item is returned as is. Rabbi Shimon says: The stolen item is viewed as though it had been monetarily appraised at the time of the robbery. The Gemara asks: What is the difference between them, since ostensibly they agree that the robber does not return the value of the enhancement to the robbery victim?

אמר רב זביד בשבח שעל גבי גזילה קמיפלגי ר' יהודה סבר דנגזל הוי ור"ש סבר דגזלן הוי

Rav Zevid says: They disagree with regard to enhancement that is still upon the stolen item. The disagreement concerns a case where the enhancement occurred while the stolen item was in the possession of the robber, and when he returned the item it was still enhanced. Therefore, he did not keep any of the enhancement. Rabbi Yehuda holds that the enhancement belongs to the one who was robbed, and Rabbi Shimon holds that it belongs to the robber.

רב פפא אמר דכ"ע שבח שעל גבי גזילה דגזלן הוי והכא למחצה לשליש ולרביע קמיפלגי רבי יהודה סבר שבח שעל גבי גזילה כוליה דגזלן הוי ורבי שמעון סבר למחצה לשליש ולרביע הוא דשקיל גזלן

Rav Pappa said that the disagreement between Rabbi Yehuda and Rabbi Shimon can be explained differently: Everyone agrees that the enhancement that is still upon the stolen item belongs to the robber, and here they disagree with regard to whether the robber can keep one-half, or one-third, or one-fourth of the value of the enhancement, and the remainder is kept by the owner of the animal. Rabbi Yehuda holds that the enhancement that is still upon the stolen item belongs entirely to the robber, and Rabbi Shimon holds that the robber takes one-half, or one-third, or one-fourth of the value of the enhancement. In other words, he is treated as a shepherd or rancher and receives the share of the enhancement that local custom dictates be paid to that type of laborer.

תנן גזל פרה ונתעברה אצלו וילדה רחל ונטענה אצלו וגזזה משלם כשעת הגזילה ילדה אין לא ילדה הדרא בעינא

The Gemara cites a proof for Rav Zevid’s explanation: We learned in the mishna (93b): If one robbed another of a cow, and it became pregnant in his possession, and it then gave birth; or if one robbed another of a ewe, and it became laden with wool in his possession, and he then sheared it, the robber pays according to the value of the animal at the time of the robbery. The Gemara infers from the mishna: If the cow gave birth, yes, he pays the value of the animal at the time of the theft, but if the cow did not give birth and is still pregnant, it is returned as is.

בשלמא לרב זביד דאמר שבח שעל גבי גזילה דנגזל הוי לר' יהודה הא מני רבי יהודה היא אלא לרב פפא דאמר דגזלן הוי הא מני לא רבי יהודה ולא ר"ש

Granted, according to the explanation of Rav Zevid, who says that according to the opinion of Rabbi Yehuda, enhancement that is still upon the stolen item belongs to the one who was robbed, in accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Yehuda, as the pregnant cow is returned as is. But according to the explanation of Rav Pappa, who says that everyone agrees that the enhancement belongs to the robber, in accordance with whose opinion is this mishna? It is not in accordance with the opinion of Rabbi Yehuda, nor is it in accordance with the opinion of Rabbi Shimon, as the robber does not retain any of the enhanced value.

אמר לך רב פפא הוא הדין אפילו לא ילדה נמי כשעת הגזילה הוא דמשלם והא דקתני ילדה איידי דנסיב רישא ילדה נסיב סיפא נמי ילדה

The Gemara responds: Rav Pappa could have said to you that the inference is incorrect: The same is true that even if it did not give birth, the robber pays according to the value of the animal at the time of the robbery, and the enhanced value due to the pregnancy is returned to him. And that which the mishna teaches: It then gave birth, cannot serve as the basis for an inference pertaining to this discussion. As the tanna needs to cite that it gave birth in the first clause of the mishna, since in that case he acquires the animal due to the change in its condition, therefore he cites that it gave birth in the latter clause as well, but it need not have given birth. It cannot be inferred from this mishna that an animal that has not given birth is returned as is.

תניא כוותיה דרב פפא ר' שמעון אומר רואין אותה כאילו היא שומא אצלו בכסף למחצה לשליש ולרביע

The Gemara notes: It is taught in a baraita in accordance with the explanation of Rav Pappa. The baraita states: Rabbi Shimon says: The stolen item is viewed as though it had been monetarily appraised at the time of the theft, for the purpose of keeping one-half, or one-third, or one-fourth of the value of the enhancement.

אמר רב אשי כי הוינן בי רב כהנא איבעיא לן לר' שמעון דאמר למחצה לשליש ולרביע הוא דשקיל גזלן כי מסלקינן ליה בדמי מסלקינן ליה או דילמא מבשרא שקול

Rav Ashi said: When we were studying in the study hall of Rav Kahana, we were asked a question: According to the opinion of Rabbi Shimon, who says that the robber takes one-half, or one-third, or one-fourth of the value of the enhancement; when we remove the robber, taking the stolen animal from him and paying him a portion of the enhanced value, do we remove him by paying him his share with money? Or, perhaps he takes his portion from the meat of the animal.

ופשטנא מהא דאמר רב נחמן אמר שמואל שלשה שמין להן השבח ומעלין אותן בדמים ואלו הן בכור לפשוט

And we resolved the dilemma from that which Rav Naḥman says that Shmuel says: In three cases, the court appraises the enhanced value for the parties involved in enhancing a field, and they are paid in money rather than by being given a portion of the property, and these are they: A firstborn son who makes payment to a regular son. This is a case where two sons, one firstborn and the other not, inherit a field from their father. Before it is divided, they both work and enhance the field. When the time comes to divide the field, the firstborn son, who receives a double portion, must pay his brother for the enhancement that the latter contributed to the former’s portion. This payment is given in money rather than land.

ובעל חוב ללוקח ובעל חוב ליתומים

And the second case is that of a creditor who is obligated to a purchaser, i.e., a creditor who collects the debt from lands that were sold by the debtor. He pays money to the purchaser for the enhancements generated by the purchaser but does not pay him in land. And the third case is that of a creditor who is obligated to orphans, i.e., a creditor who collects land from the orphans of his debtor. He must pay them for any enhancements done by the orphans after their father’s death. This payment is also given in money rather than land.

אמר ליה רבינא לרב אשי מי אמר שמואל בעל חוב ללוקח יהיב ליה שבח והאמר שמואל בעל חוב גובה את השבח א"ל לא קשיא כאן בשבח המגיע לכתפים וכאן בשבח שאין מגיע לכתפים

The Gemara discusses Shmuel’s statement. Ravina said to Rav Ashi: Did Shmuel actually say that a creditor gives the purchaser any of the enhanced value at all? But doesn’t Shmuel say: A creditor collects all of the enhanced value? Rav Ashi said to him: This is not difficult. Here, where Shmuel stated that a creditor does not collect the enhanced value, it was with regard to a case where there was enhancement that reaches shoulders [shevaḥ hammaggia likhtefayim], i.e., the produce that grew due to the improvements made by the purchaser is fully grown and ripened and can now be harvested and carried upon one’s shoulders. But there, where Shmuel stated that a creditor does collect the enhanced value, it was with regard to a case where there was enhancement that does not reach shoulders, i.e., its growth is not complete.

אמר ליה והא מעשים בכל יום וקא מגבי שמואל אפי' שבח המגיע לכתפים אמר ליה לא קשיא

Ravina said to him: But there were daily incidents of this type, and Shmuel would collect from purchasers even enhancement that reached shoulders. Rav Ashi said to him: This is not difficult.