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Week 95 - Shabbat - 22 September 2001

BAVA KAMMA: CHAPTER 8: MISHNAH 7

Even though he gives him, he is not forgiven until he asks from him, as it is written, "Now therefore restore the wife of..." (Gen. 20:7). And from where do we learn that the one who is to forgive should not be cruel? As it is written, "And Abraham prayed to God; and God healed Abimelech ..." (Gen. 20:17). If a person says, Blind my eye, cut off my hand, break my leg - he is liable. On condition to be exempt - he is liable. Tear my garment, break my pitcher - he is liable. On condition to be exempt - he is exempt. Do so to so and so, on condition to be exempt - he is liable, whether against his person or against his property.

Kehati

Even though he gives him - the five types of compensation: damage, pain, healing, loss of time, and shame, he is not forgiven until he asks from him, - forgiveness for the suffering he caused him because of his shame - as it is written, "Now therefore restore the wife of the man; for he is a prophet, and he shall pray for you" - Abimelech was not forgiven until he asked Abraham to forgive him and pray for him (see Tosefot Yom Tov). We learn from this that a person must ask forgiveness from the shamed party.

And from where do we learn that the one who is to forgive should not he cruel - by not forgiving him? As it is written, "And Abraham prayed to God; and God healed Abimelech..." (Gen. 20:17) - even though it might be said that Abraham acted beyond the letter of the law, nonetheless if this were the case, the Torah would have written that he forgave him, just as it writes that he prayed for him. The forgiveness was certainly according to the requirement of the law; hence, since there was nothing remarkable in this act the Torah did not have to mention it specifically. The purpose of this verse is rather to teach that not only did he forgive him, but that he even prayed for him (Tiferet Yisrael, Torah Temimah).

If a person says - to his fellow, Blind my eye, cut off my hand, break my leg - and his fellow did so to him, he is liable - for all five types of compensation, since it is known that a person does not really want this (Rambam), and it was forbidden for his fellow to obey him; even if the injured party had said to him: On condition to be exempt - from payment - he is liable - since it is not normal for people to forgive bodily suffering and he obviously did not mean this seriously (see Rambam, Hil. Hovel 5:11).

Other commentators, following the Gemara, interpret our mishnah as follows: the person causing the injury asks the injured party, "On the condition that I will be exempt?" And the injured party answered him, "Yes." In such a case the injurer is liable, since we say that the injured party said "Yes?" rhetorically, and he actually meant "No." If, however, the injured party stated explicitly, "On condition to be exempt," then the injurer is exempt (Bartenura; see Tosefot Yom Tov).

If someone says to his fellow - Tear my garment, break my pitcher - and he did so - he is liable - to pay him. If, however, he said to him, On condition to be exempt - then he is exempt - since a person may well waive a claim concerning his property. Bartenura interprets this as follows: "But if a person says to his fellow: 'Tear my garment or break my pitcher,' and his fellow asked him, 'On condition to be exempt?' Even though he answered him, 'no,' he nevertheless is exempt, since the 'no' which he answered is regarded as if it were 'yes,' as if he said to him, 'Did I not tell you, on condition to be exempt?' He therefore is exempt, since people may well waive claims regarding their possessions." The Gemara explains that this refers to a case in which he had previously received the vessels in custodianship, e.g., they were loaned or entrusted to him. Accordingly, if the owner of the vessels said to him, Tear my garment or break my pitcher, and he did so, he is obligated to pay, since he had already assumed liability as a custodian. It is as if he said to him, "Tear or break on condition that you pay," unless he said to him, "On condition that you be exempt," in which case he is exempt. If, however, he had said, at the time that he entrusted the vessels to him, "Take my vessel and break it" or, "Take this garment and tear it," and he did so, even though he did not say to him, "On condition to be exempt," he is exempt, since he did not acquire the status of custodian, as it is written, "If a man deliver to his neighbor money or stuff to guard" (Ex. 22:6), from which it was learned, "to guard," but not to lose or to tear, i.e., if he gave it to him to guard he is liable for his negligence, but if he gave it to him to lose or to tear and he was negligent, then he is exempt.

And if a person says to his fellow, Do so to so and so, on condition to be exempt - and even if he said to him, "On condition that I will pay" (Tosefot Yom Tov), he - the agent - is liable - if he did it, whether against his person - e.g., he said to him, "Blind the eye of so-and-so," or "Cut off his hand," or "Break his leg," or against his property - e.g., he said to him, "Tear his garment," or "Break his pitcher," since a person does not become an agent to perform a transgression. Rambam writes: "Even though the one who did it is obligated to pay, the person who tells him to do it is his partner in the iniquity, and he is a wicked person, since he caused the blind to stumble and strengthened the hand of transgressors" (Hil. Hovel 5:13).

BAVA KAMMA: CHAPTER 9: MISHNAH 1

If one robs wood and makes it into utensils, wool and makes of it garments - he pays as at the time of the robbery. If he robbed a pregnant cow and it gave birth, a ewe loaded and he sheared it - he pays the value of the cow about to give birth, the value of the ewe about to be shorn. If a person robbed a cow and it became pregnant in his possession and gave birth, an ewe and it became loaded in his possession and he sheared it - he pays as at the time of the robbery. This is the general rule: all robbers pay as at the time of the robbery.

Kehati

This chapter deals with the laws of robbery: Who is a robber? [See Introduction to 7:1 above. Robber and thief are not interchangeable terms. We have stressed this with respect to the first mishnah in this Chapter, but have not been so strict in following mishnayot and commentary]. One who takes another's property with impunity, e.g., he snatched goods from his hand or entered his domain against his will and took from there utensils, or appropriated his bondman or his animal and made use of them, or went down into his field and ate its produce, and similar cases, such a one is a robber. Whoever robs is obligated to return the stolen object itself, as it is written, "He shall restore that which he took by robbery" (Lev. 5:23). Whether the robber himself admitted, or whether witnesses testified that he robbed, he is obligated to return only the principal (Rambam, Hil. Gezelah 1:3, 5). If the robbed article is still in existence, and underwent no change while in the possession of the robber, he is obligated to return it as it is (see ibid., 2:1).

Our mishnah teaches that if the stolen object underwent a change while in the possession of the robber, even though the owner had not yet despaired of retrieving it, the robber acquires it because of the change, and pays its value as at the time of the robbery. The Gemara explains the verse "he shall restore that which he took by robbery" as follows: the words "that which he took by robbery" mean, if it still exists as the object that he stole, he returns it, and if not, he pays its value (B. K. 66a, 98b).

If one robs wood and makes it into utensils, or if a person steals - wool and made of it garments, he pays - the value of the wood or the value of the wool - as at the time of the robbery, and he is not obligated to return to him the utensils which he made out of the wood or the garments which he made out of the wool, since he acquired them by the change which he made, as was stated in the introduction to this mishnah. The Gemara explains that a robber acquires as a result of the change only when the changed object cannot revert to its original form, e.g., he robbed unplaned wood and prepared it and made utensils out of it; if, however, the change is reversible, e.g., he robbed planed wood and made a box out of it, even if he joined the wood with nails, he did not acquire the box, since it is possible to dismantle the box and restore the wood to its original state. And even if he robbed unplaned wood and planed it, this is regarded as a change only if its name changed as a result of the difference, e.g., he made from it a mortar with which to pound, or made it into planks, or rafters, etc.; since it is called differently as a result of the deed, he acquired them by this change.

If he robbed a pregnant cow and it gave birth - while in his possession, or if a person stole - a ewe loaded - with wool - and he - the thief - sheared it - the ewe, he pays the value of the cow about to give birth, or - the value of the ewe about to be shorn - i.e., the robber restores to the person from whom it was robbed the cow or the ewe itself, since birth and shearing do not constitute a change in the body of the cow or of the ewe, while he acquires the offspring or the wool as a result of the change; he adds to the person from whom it was stolen the amount the offspring or the wool were worth before the birth or the shearing, and the additional amount they are worth now is his (Nimukei Yosef, Hameiri, as well as most commentators). According to Rabbeinu Asher, the thief acquires the cow or the ewe, since the birth or the shearing constitute a change in their bodies, and he pays to the person from whom it was stolen the value of the cow or the value of the ewe at the time of the theft.

If a person robbed a cow and it became pregnant in his possession and gave birth, or if a person robbed - a ewe and it became loaded - its wool grew when it was - in his - the robber's - possession and he sheared it - this constitutes a change even regarding the cow or the ewe, and he is not obligated to return them, but rather to pay their value (Hameiri; see Tosefot Yom Tov), therefore - he pays as at the time of the robbery - i.e., compensation for the cow and compensation for the ewe according to their value at the time of the robbery, and whatever appreciation there was from the time of the theft on belongs to the robber. This is the law when it has not yet given birth or been sheared (Gemara); the mishnah only used the words "and gave birth," "and he sheared it" because of the first part of the mishnah.

This is the general rule: all robbers pay as at the time of the robbery - The Gemara explains that the general rule includes the law that if he stole a fawn and it became a deer, or if he stole a calf and it became an ox, and he slaughtered it or sold it, he is exempt from four or fivefold payments, since he acquired it; because the change occurred while in his possession, he slaughtered or sold his own possession.

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