Bava Kamma 96b

מַאי, לָאו הוּא הַדִּין לְנֶחְלְקָה? לָא; נִיטְּלָה שָׁאנֵי, דְּהָא חֲסַר לֵהּ.

What, is it not that the same is true for a case where the central twin-leaf became split, i.e., that this lulav has been rendered unfit to be used for the mitzva, and the robber has acquired the lulav as a result of this change? The Gemara answers: No, the case where it was removed is different, as the result is that it is lacking, and an incomplete lulav is certainly unfit. But if the leaf remains in place, albeit split, it does not necessarily render the lulav unfit. The lulav has not been changed and therefore the robber does not acquire it.

אִיכָּא דְּאָמְרִי: תָּא שְׁמַע, דְּאָמַר רַבִּי מָתוּן אָמַר רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי: נֶחְלְקָה הַתְּיוֹמֶת – נַעֲשָׂה כְּמִי שֶׁנִּטְּלָה, וּפָסוּל! שְׁמַע מִינַּהּ.

There are those who say that the question was resolved as follows: Come and hear that which Rabbi Matun says that Rabbi Yehoshua ben Levi says: If the central twin-leaf became split, it becomes like a lulav whose central twin-leaf was completely removed, and it is unfit. If so, learn from his statement that if the central twin-leaf became split, the robber has acquired the lulav as a result of the change.

אָמַר רַב פָּפָּא: הַאי מַאן דִּגְזַל עַפְרָא מֵחַבְרֵיהּ, וְעַבְדֵיהּ לְבֵינְתָּא – לָא קָנֵי. מַאי טַעְמָא? דְּהָדַר מְשַׁוֵּי לֵיהּ עַפְרָא. לְבֵינְתָּא וְעַבְדַיהּ עַפְרָא – קָנֵי. מַאי אָמְרַתְּ – דִּלְמָא הָדַר וְעָבֵיד לֵיהּ לְבֵינְתָּא? הַאי לְבֵינְתָּא אַחֲרִיתִי הוּא, וּפָנִים חֲדָשׁוֹת בָּאוּ לְכָאן.

§ Rav Pappa said: This one who robbed another of earth and fashioned it into a brick has not acquired it due to the change. What is the reason for this? It is that he can return it and convert it back into earth. By contrast, if he robbed another of a brick, and by crushing it turned it into earth, he has acquired it due to the change. If you say: Perhaps he will return it and fashion it into a brick? This is a different brick, and a new entity has arrived, i.e., entered into existence, here.

וְאָמַר רַב פָּפָּא: הַאי מַאן דִּגְזַל נְסָכָא מֵחַבְרֵיהּ, (וְעָבֵיד) [וְעַבְדֵיהּ] זוּזֵי – לָא קָנֵי. מַאי טַעְמָא? הָדַר עָבֵיד לְהוּ נְסָכָא. זוּזֵי וְעַבְדִינְהוּ נְסָכָא – קָנֵי. מַאי אָמְרַתְּ – הָדַר עָבֵיד לְהוּ זוּזֵי? פָּנִים חֲדָשׁוֹת בָּאוּ לְכָאן.

And Rav Pappa also said: This one who robbed another of a bar of silver [ naskha ] and fashioned it into coins has not acquired it due to the change. What is the reason for this? He can return it and by melting the coins turn them into a bar of silver. By contrast, if he robbed another of coins and fashioned them into a bar of silver, he has acquired them due to the change. What do you say in response to this, that perhaps he will return and fashion them into coins? These are new coins, and a new entity has arrived here.

שְׁחִימֵי וְעַבְדִינְהוּ חַדְתֵי – לָא קָנֵי. חַדְתֵי וְעַבְדִינְהוּ שְׁחִימֵי – קָנֵי. מַאי אָמְרַתְּ – הָדַר עָבֵיד לְהוּ חַדְתֵי? מִידָּע יְדִיעַ שִׁיחְמַיְיהוּ.

Rav Pappa continues: If the stolen coins were black [ sheḥimei ], i.e., old and used, and he made them as new by cleaning them thoroughly, he has not acquired them. By contrast, if however, they were new, and he made them black, he has acquired them. What do you say in response to this, that perhaps he will return and make them new by cleaning them? Their blackness is already known, and therefore the coins have been changed irreversibly.

זֶה הַכְּלָל: כׇּל הַגַּזְלָנִין מְשַׁלְּמִין כִּשְׁעַת הַגְּזֵלָה. ״זֶה הַכְּלָל״ לְאֵתוֹיֵי מַאי? לְאֵתוֹיֵי הָא דְּאָמַר רַבִּי אִלְעָא: גָּנַב טָלֶה וְנַעֲשָׂה אַיִל, עֵגֶל וְנַעֲשָׂה שׁוֹר – נַעֲשָׂה שִׁינּוּי בְּיָדוֹ, וּקְנָאוֹ. טָבַח וּמָכַר – שֶׁלּוֹ הוּא טוֹבֵחַ, שֶׁלּוֹ הוּא מוֹכֵר.

§ The mishna teaches: This is the principle: All robbers pay according to the value of the stolen item at the time of the robbery. The Gemara asks: What is added by the phrase: This is the principle? The Gemara replies: It serves to add that which Rabbi Ela says: If one stole a lamb and during the time that it was in the thief’s possession it became a ram, or if one stole a calf and it became an ox, then a change occurred while the animal was in his possession, and he has acquired it due to the change. If he then slaughtered or sold the animal, he slaughters his own animal and he sells his own animal, and he does not become liable to pay the penalty of four or five times the value of the animal.

הָהוּא גַּבְרָא דִּגְזַל פַּדָּנָא דְּתוֹרֵי מֵחַבְרֵיהּ, אֲזַל כְּרַב בְּהוּ כְּרָבָא, זְרַע בְּהוּ זַרְעָא. לְסוֹף אַהְדְּרִינְהוּ לְמָרֵיהּ. אֲתָא לְקַמֵּיהּ דְּרַב נַחְמָן, אֲמַר לְהוּ: זִילוּ שׁוּמוּ שְׁבָחָא דְּאַשְׁבַּח.

The Gemara relates: There was a certain man who robbed another of a pair [ padna ] of oxen. He then went and plowed his field with them, and sowed seeds with them, and eventually returned them to their owner. The robbery victim came before Rav Naḥman to claim payment from the robber. Rav Naḥman said to the robbery victim and the robber: Go estimate the amount by which the value of the land was enhanced during the time that the pair of oxen was in the possession of the robber, and the robber must pay that amount.

אֲמַר לֵיהּ רָבָא: תּוֹרֵי אַשְׁבֻּח, אַרְעָא לָא אַשְׁבַּח?! אָמַר: מִי קָאָמֵינָא נְשַׁיְּימוּ כּוּלֵּיהּ? פַּלְגָא קָאָמֵינָא! אֲמַר לֵיהּ: סוֹף סוֹף, גְּזֵילָה הוּא – וְקָא הָדְרָה בְּעֵינַאּ, דִּתְנַן: כׇּל הַגַּזְלָנִין מְשַׁלְּמִין כִּשְׁעַת הַגְּזֵלָה!

Rava said to Rav Naḥman: Did the oxen alone enhance the value of the land? Did the land not become enhanced in and of itself? Perhaps not all of the enhanced value of the land was due to the labor performed by the oxen. Rav Naḥman said: Did I say that they should estimate and give him all of the enhanced value? I said only half. Rava said to him: Ultimately, it is a stolen item and is returned as it was at the time of the robbery, as we learned in a mishna: All robbers pay according to the value of the stolen item at the time of the robbery. Why should the robber also pay the owner half the value of the enhancement?

אֲמַר לֵיהּ: לָא אָמֵינָא לָךְ, כִּי יָתֵיבְנָא בְּדִינָא לָא תֵּימָא לִי מִידֵּי, דְּאָמַר הוּנָא חַבְרִין עֲלַאי: ״אֲנָא וְשַׁבּוּר מַלְכָּא – אַחֵי בְּדִינָא״? הַאי אִינָשׁ גַּזְלָנָא עַתִּיקָא הוּא, וּבָעֵינָא דְּאֶיקְנְסֵיהּ.

Rav Naḥman said to Rava: Didn’t I tell you that when I am sitting in judgment, do not say anything to me, i.e., do not question or comment upon my rulings. An indication that my rulings should not be questioned is as our friend Huna has said about me, that King Shapur and I are brothers with regard to monetary laws, i.e., with regard to monetary laws, my opinion is equal to that of Shmuel. This man is an experienced robber, and I wish to penalize him. Therefore, I compelled him to pay the enhanced value, although by right he is not obligated to do so.

מַתְנִי׳ גָּזַל בְּהֵמָה וְהִזְקִינָה, עֲבָדִים וְהִזְקִינוּ – מְשַׁלֵּם כִּשְׁעַת הַגְּזֵלָה. רַבִּי מֵאִיר אוֹמֵר: בַּעֲבָדִים – אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״.

MISHNA: If one robbed another of an animal and it aged while in his possession, consequently diminishing its value, or if one robbed another of Canaanite slaves and they aged while in his possession, they have been changed. The robber therefore pays according to the value of the stolen item at the time of the robbery. Rabbi Meir says: With regard to Canaanite slaves, he says to the robbery victim: That which is yours is before you.

גָּזַל מַטְבֵּעַ וְנִסְדַּק; פֵּירוֹת וְהִרְקִיבוּ; יַיִן וְהֶחְמִיץ – מְשַׁלֵּם כִּשְׁעַת הַגְּזֵלָה.

If one robbed another of a coin and it cracked, thereby reducing its value; or if one robbed another of produce and it rotted; or if one robbed another of wine and it fermented, then he pays according to the value of the stolen item at the time of the robbery.

מַטְבֵּעַ וְנִפְסַל; תְּרוּמָה וְנִטְמֵאת; חָמֵץ וְעָבַר עָלָיו הַפֶּסַח; בְּהֵמָה וְנִתְעַבְּדָה בָּהּ עֲבֵירָה, אוֹ שֶׁנִּפְסְלָה מֵעַל גַּבֵּי הַמִּזְבֵּחַ, אוֹ שֶׁהָיְתָה יוֹצְאָה לִיסָּקֵל – אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״.

If he robbed another of a coin and it was invalidated by the government; or if he robbed another of teruma and it became ritually impure; or if he robbed another of leavened bread and Passover elapsed over it, and therefore it is prohibited to derive benefit from it; or if he robbed another of an animal and a sin was performed with it, thereby disqualifying it for use as an offering; or if the animal was disqualified from being sacrificed upon the altar for some other reason; or if the animal was going out to be stoned because it gored and killed a person at some point after the robbery, the robber says to the robbery victim: That which is yours is before you. In all of these cases, although the value of the stolen item has been diminished or altogether lost, since the change is not externally discernible, the robber returns the item in its current state.

גְּמָ׳ אָמַר רַב פָּפָּא: לֹא ״הִזְקִינָה״ – הִזְקִינָה מַמָּשׁ, אֶלָּא אֲפִילּוּ כָּחֲשָׁה. וְהָא אֲנַן ״הִזְקִינָה״ תְּנַן! כָּחֲשָׁה כְּגוֹן הִזְקִינָה, דְּלָא הָדְרָ[א] בָּרְיָא.

GEMARA: With regard to the mishna’s statement that one who robbed another of an animal that aged pays what its value was at the time of the robbery, Rav Pappa says: It is not so that aged means that it actually aged. But even if the animal was weakened, which is a less significant change, it is still considered changed, and the robber has acquired the animal. The Gemara asks: But didn’t we learn in the mishna that it aged, indicating that a lesser change, e.g., weakening, is not significant? The Gemara responds: Rav Pappa was speaking of weakening that is like aging, i.e., the animal became so weak that it will not return to its former health.

אֲמַר לֵיהּ מָר קַשִּׁישָׁא בְּרֵיהּ דְּרַב חִסְדָּא לְרַב אָשֵׁי, הָכִי קָאָמְרִי מִשְּׁמֵיהּ דְּרַבִּי יוֹחָנָן: אֲפִילּוּ גָּנַב טָלֶה וְנַעֲשָׂה אַיִל, עֵגֶל וְנַעֲשָׂה שׁוֹר – נַעֲשָׂה שִׁינּוּי בְּיָדוֹ, וּקְנָאוֹ. טָבַח וּמָכַר – שֶׁלּוֹ הוּא טוֹבֵחַ, שֶׁלּוֹ הוּא מוֹכֵר. אֲמַר לֵיהּ, לָאו אָמֵינָא לָךְ: לָא תַּחְלֵיף גַּבְרֵי? הָהוּא מִשְּׁמֵיהּ דְּרַבִּי אִלְעָא אִיתְּמַר.

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: This is what they say in the name of Rabbi Yoḥanan: Even if one stole a lamb and it became a ram, or a calf and it became an ox, it is considered that a change occurred while the animal was in the robber’s possession, and he has acquired it due to this change. If he then slaughtered or sold the animal, he slaughters his own animal and he sells his own animal, and he does not become liable to pay the penalty of four or five times the value of the animal. Rav Ashi said to him: Didn’t I say to you: Do not exchange the names of the men in whose name you are transmitting words of Torah? That statement was stated in the name of Rabbi Ela, not in the name of Rabbi Yoḥanan.

רַבִּי מֵאִיר אוֹמֵר, בַּעֲבָדִים אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״. אָמַר רַב חֲנִינָא בַּר אַבְדִּימִי אָמַר רַב: הֲלָכָה כְּרַבִּי מֵאִיר. וְרַב שָׁבֵיק רַבָּנַן וְעָבֵיד כְּרַבִּי מֵאִיר? אָמְרִי: מִשּׁוּם דְּבָרַיְיתָא אִיפְּכָא תָּנְיָא. וְרַב שָׁבֵיק מַתְנִיתִין וְעָבֵיד כְּבָרַיְיתָא? רַב – מַתְנִיתִין נָמֵי אִיפְּכָא תָּנֵי.

§ The mishna teaches that Rabbi Meir says: With regard to Canaanite slaves, he says to the robbery victim: That which is yours is before you. The Gemara comments: Rav Ḥanina bar Avdimi says that Rav says: The halakha is in accordance with the opinion of Rabbi Meir. The Gemara asks: And would Rav set aside the opinion of the Rabbis, who are the majority, and practice the halakha in accordance with the opinion of Rabbi Meir? The Sages say: It is because it is taught in a baraita in the opposite manner, i.e., with the opinions reversed, so that the Rabbis, rather than Rabbi Meir, hold that with regard to slaves the robber says: That which is yours is before you. The Gemara asks: And would Rav set aside the mishna and practice the halakha in accordance with the statement of the baraita ? The Gemara responds: Rav also teaches the mishna in the opposite manner.

וּמַאי טַעְמֵיהּ דְּרַב דְּאָפֵיךְ מַתְנִיתִין מִקַּמֵּי דְּבָרַיְיתָא? אַדְּרַבָּה, נֵיפוֹךְ לְבָרַיְיתָא מִקַּמֵּי מַתְנִיתִין! אָמְרִי: רַב נָמֵי מַתְנִיתִין אִיפְּכָא אַתְנוּיָהּ.

And what is the reasoning of Rav, who reversed the opinions in the mishna in light of the baraita ? On the contrary, let him reverse the opinions in the baraita in light of the mishna. The Sages say in response: Rav also learned the mishna in the opposite manner. Rav did not decide to reverse the opinions in the mishna. In the text of the mishna that he utilized, the opinions were the same as in the baraita .

וְאִי בָּעֵית אֵימָא: כִּי לָא אָפֵיךְ – חֲדָא מִקַּמֵּי חֲדָא; חֲדָא מִקַּמֵּי תַּרְתֵּי – אָפֵיךְ.

And if you wish, say instead that Rav did in fact decide to reverse the opinions in the mishna, based upon the principle: When he does not reverse a mishna due to a baraita , it is when there is one mishna that he will not reverse in light of one baraita . But he would reverse one mishna in light of two baraitot , and in this case there is a second baraita in which the opinions are the reverse of those found in the mishna.

דְּתַנְיָא: הַמַּחְלִיף פָּרָה בַּחֲמוֹר, וְיָלְדָה; וְכֵן הַמּוֹכֵר שִׁפְחָתוֹ, וְיָלְדָה; זֶה אוֹמֵר ״בִּרְשׁוּתִי יָלְדָה״, וְהַלָּה שׁוֹתֵק – זָכָה בָּהּ. זֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״, וְזֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״ – יַחְלוֹקוּ.

The second baraita is as it is taught in the Tosefta ( Bava Metzia 8:23–24): In the case of one who exchanges a cow for a donkey, and in the meantime the cow gave birth; and similarly, in the case of one who sells his Canaanite maidservant, and in the meantime she gave birth, if in either of these cases the purchaser and seller have a dispute as to when the birth took place, where this one says: She gave birth at the time that she was in my possession and therefore the offspring is mine, and the other is silent, then the one who stated definitively that she gave birth while in his possession has acquired the offspring. If this one says: I do not know, and that one says: I do not know, then they shall divide the value of the offspring.

זֶה אוֹמֵר ״בִּרְשׁוּתִי״ וְזֶה אוֹמֵר ״בִּרְשׁוּתִי״ – יִשָּׁבַע הַמּוֹכֵר שֶׁבִּרְשׁוּתוֹ יָלְדָה, לְפִי שֶׁכׇּל הַנִּשְׁבָּעִין שֶׁבַּתּוֹרָה – נִשְׁבָּעִין וְלֹא מְשַׁלְּמִין; דִּבְרֵי רַבִּי מֵאִיר.

The baraita continues: If this one says: She gave birth while in my possession, and that one says: She gave birth while in my possession, then the seller must take an oath that she gave birth while in his possession, as anyone who is obligated to take an oath that is enumerated in the Torah takes an oath and does not pay; this is the statement of Rabbi Meir. In this case, since the seller initially had possession of the animal or the maidservant, he is considered the defendant, and therefore it is sufficient for him to take an oath to exempt himself from payment and maintain possession of the offspring.

וַחֲכָמִים אוֹמְרִים: אֵין נִשְׁבָּעִין לֹא עַל הָעֲבָדִים וְלֹא עַל הַקַּרְקָעוֹת.

The baraita continues: And the Rabbis say that one does not take an oath concerning either Canaanite slaves or concerning land. This indicates that according to the opinion of the Rabbis, Canaanite slaves have the legal status of land, whereas according to the opinion of Rabbi Meir, they do not. It follows, then, that in the mishna here as well, it is the Rabbis, and not Rabbi Meir, who maintain that, with regard to slaves, one says: That which is yours is before you, as one does with regard to land.

הַאי ״הֲלָכָה כְּרַבִּי מֵאִיר״?! ״הֲלָכָה כְּרַבָּנַן״ מִיבְּעֵי לֵיהּ! הָכִי קָאָמַר: לְמַאי דְּאָפְכִיתוּ וְתָנֵיתוּ, הֲלָכָה כְּרַבִּי מֵאִיר.

The Gemara asks: If it is true that the opinion that the mishna attributed to Rabbi Meir was attributed by Rav to the Rabbis, then this phrase: The halakha is in accordance with the opinion of Rabbi Meir, is imprecise. Rav should have said that the halakha is in accordance with the opinion of the Rabbis. The Gemara responds: This is what Rav is saying: According to the way that you have reversed the opinions in the mishna, and you taught that Rabbi Meir says that the robber says to the robbery victim: That which is yours is before you, then the halakha is in accordance with the opinion of Rabbi Meir, despite the fact that according to Rav, this is the opinion of the Rabbis.