Bava Kamma Chapter Nine Mishnah One

 

Introduction

Chapters nine and ten of Bava Kamma deal with a person who steals openly, usually by force.  In Hebrew this person is called a “gazlan”.  In chapter seven we dealt with a “ganav” or thief who steals surreptitiously.  The major halachic difference between the two is that the gazlan pays back only that which he took.  Unlike the ganav, he is not liable for twofold, fourfold or fivefold restitution.

Our mishnah deals with a person who stole something and then the stolen object changed while in his possession.  Since he cannot return the exact object he stole, as is the usual requirement, the mishnah must deal with his obligation.

 

Mishnah

1)                     If a man stole wood and made it into utensils, or wood and made it into garments, he makes restitution according to [the value of the stolen object] at the moment of theft.

2)                     If he stole a pregnant cow and it gave birth, or a sheep ready to be sheared, and he then sheared it, he repays the value of a cow about to bear young, or a sheep ready to be sheared.

3)                     If he stole a cow, and while it was with him it was impregnated and bore young, or [if he stole a sheep] and while it was with him it grew wool and he sheared it, he makes restitution according to [the value of the stolen object] at the moment of theft.

4)                     This is the general rule: all robbers make restitution according to [the value of the stolen object] at the moment of theft.

 

Explanation

In all of the cases in sections one through three the robber stole an item and changed it or it changed on its own while in his possession.  The robber would prefer to return the item at its lesser value and the original owner would like the object at its higher value.  For instance in the case mentioned in section one, if Reuven stole wood from Shimon and made the wood into a beautiful table, Shimon would clearly claim that the table is his property, made from his wood.  Nevertheless, Reuven must only return the value of the raw wood, for that is what he stole.

Sections two and three state the same principle with regards to animals.  In section two the thief would like to return just the cow or the sheep and keep the young or wool for himself. The original owner claims the cow and the young or the sheep and the wool.  The rule is that the robber pays exactly what he stole, in this case a pregnant cow or a sheep laden with wool.  In section three the stolen object actually improved while it was in the robber’s possession.  The original owner would like to have both the cow and the young or the sheep and the wool returned to him.  He might claim that it was his cow that gave birth or his sheep that gave wool.  However, since at the time of the robbery the cow was not pregnant and the sheep was not ready to be sheared, the robber need only return the value of a non-pregnant cow and a sheared sheep.

 

Questions for Further Thought:

·                      What are some potential explanations for the halachic difference between a “ganav” (thief) who steals surreptitiously and a “gazlan” who steals openly, usually by force?

·                      According to section three a robber in essence benefits by being allowed to keep the young or the wool.  Why might the mishnah allow such a situation?

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