Bava Kamma Chapter Nine Mishnah Two

 

Introduction

In mishnah one we learned that a “gazlan”, robber, must return the stolen object at the value that it was worth at the time of the robbery.  Whether the object increased or decreased in value since the robbery, the robber is obligated to make restitution according to the value at the time of the theft.  Our mishnah introduces a few exceptions to this principle.  There are some stolen items which can be returned as they currently are at the time of their being returned and not at their value at the time of theft.

 

Mishnah

1)                     If he stole a beast and it grew old, or slaves and they grew old, he makes restitution according to [their value at] the moment of the theft.

a)                                           Rabbi Meir says:  “As for slaves the thief may say to the owner, ‘Here is what is yours before you.’”

2)                     If he stole a coin and it cracked, fruit and it rotted, wine and it turned into vinegar, he must make restitution according to [the value] at the moment of the theft.

a)                                           But if he stole a coin and it went out of use, or “Heave offering” (terumah) and it became ritually unclean, or leaven and the time of Passover arrived, or a beast and it was used for a transgression, or became unfit to be offered or it was condemned to be stoned, he may say to the other, “Here is what is yours before you.”

 

Explanation

In section one the thief stole either animals or slaves and kept them for a while, thereby decreasing their value due to age.  According to the first opinion he is obligated to return to the original owner the value of the slaves or animals at the time of the theft.  Rabbi Meir disagrees with regards to slaves.  According to Rabbi Meir the robber can return the slaves to the owner, disregarding their decrease in value.  Stealing thieves is different from stealing animals or other objects.  When a person steals most objects he actually takes possession of the object and he is now the “owner” of the object and obligated to return the value of the object to the original owner.  However, with regards to slaves and land, taking them does not cause the robber to have legal “possession” over them.  Therefore, in essence the slaves and land never left the possession of the original owner and the robber must return the actual slaves or land.

In section two the mishnah teaches an important distinction in damage law between recognizable and unrecognizable damage.  If a person should steal a coin and it cracks and is therefore no longer usable or food and it should go bad, he cannot just return the object itself.  Even though the object still exists he must return the value at the time of the theft. In these cases the damage was recognizable.  However, in section 2a, the stolen object was damaged and is no longer worth what it was previously, but the damage is not visible to the eye.  Since the object still exists and there are no recognizable differences, the robber may return the object itself. We will explain each example.  A coin that went out of use is no longer worth anything but it is still the same coin that existed previously and will not look different.  Heave offering “terumah” is a part of one’s produce that must be given to the priest who must eat it while both he and the “terumah” are in a state of ritual purity. “Terumah” that has become impure must be burnt and it is forbidden to derive any benefit from it.  If someone should steal “terumah” and impurify it the “terumah” becomes worthless, even though it will still physically remain the same.  Leaven or “hametz” that was owned by a Jew during Passover cannot be eaten after Passover and must be burned.  If the thief kept the stolen “hametz” during Passover it will still physically look the same, but now, since it must be destroyed, is not worth anything.  An animal that has had a transgression done with it, such as using it for idol worship, must be killed.  Again, it will look the same but is now worthless.  If the thief stole an animal that was intended to be a sacrifice and by injuring it he made it unfit to be a sacrifice it will still be in essence the same animal, but it can now no longer fulfill its original function.  Finally, an animal that gored and killed a human being must be stoned to death.  If this animal killed a human being while it was in the thief’s possession it is no longer worth anything, and yet it has not changed its appearance.   In all of these cases the damage done to the stolen object was invisible.  Therefore according to the mishnah the person can return the original object, even though it is actually currently worth nothing.

 

Questions for Further Thought:

·                      What would happen if the animals increased in value while in the possession of the robber?  What would happen if the slaves increased in value while in his possession?

 

 

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