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Week 96 - Monday - 24 September 2001

BAVA KAMMA: CHAPTER 9: MISHNAH 4

If one gives wool to the dyer and the kettle burned it, he gives him the value of his wool. He dyed it uglily: if the appreciation is more than the expenditure, he gives him the expenditure; and if the expenditure is more than the appreciation, he gives him the appreciation. To dye it red, and he dyed it black; black, and he dyed it red, Rabbi Meir says, He gives him the value of his wool. Rabbi Yehudah says, If the appreciation is more than the expenditure, he gives him the expenditure; but if the expenditure is more than the appreciation, he gives him the appreciation.

Kehati

Our mishnah continues to teach the laws regarding craftsmen who spoiled items which they received to repair, or who made changes not in accordance with the wishes of the owner.

If one gives wool to the dyer - to dye - and the kettle burned it - the wool, because he boiled it excessively, he - the dyer - gives him - the owner of the wool - the value of his wool - the Gemara explains that he pays him only the value of the wool when it burned before it absorbed the dye. If, however, the wool absorbed the dye and it appreciated in value, and was burned afterwards, he is obligated to pay him the value of the dyed wool, since a craftsman does not acquire an article through appreciation, as was taught in the preceding mishnah (Gemara, B. K. 98b, 99a).

He dyed it uglily - i.e., he dyed the wool with an inferior dye, with the waste material of dye; so that he caused the damage intentionally: if the appreciation - the amount by which the wool appreciated due to the dying - is more than the expenditure - the cost of dying, e.g., the wool was worth ten zuz, and is worth fifteen zuz after the dying, i.e., it appreciated by five zuz, and the expense of dying was three zuz, he - the owner of the wool - gives him - the dyer - the expenditure - only, i.e. three zuz; and if the expenditure is more than the appreciation - e.g., the dying cost seven zuz, he gives him the appreciation - only, i.e., five zuz, and he receives his wool, and does not pay him the wage upon which they had agreed, since he spoiled it. If, however, the wage upon which they had agreed is less than the appreciation (or in the first case, less than the expenditure), he gives him his wage. According to Rambam and Bartenura, "the expenditure" refers only to what he spent on dyes, while according to Rashi, it includes the value of the wood, the dyes and payment for his trouble, like other day laborers.

If he gave the dyer wool on condition - To dye it red, and he dyed it black; or he gave it to him to dye it - black, and he dyed it red - i.e., he changed what had been agreed upon with the owner of the wool, Rabbi Meir says, He - the dyer - gives him - the owner of the wool - the value of his wool - for according to Rabbi Meir, the dyer acquires it as a result of the change, as does a thief; in any event if the owner of the wool so desires, he may pay him the wage upon which they agreed and he receives the wool; we do not say that the dyer has entirely acquired the wool, since the dyer had no intention to acquire it, which is not so in the case of a thief (Tosefot Yom Tov).

Rabbi Yehudah says, If the appreciation - the amount by which the wool appreciated due to the dying - is more than the expenditure - the costs of dying, he gives him the expenditure - only the costs; but if the expenditure is more than the appreciation, he gives him the appreciation - as we explained above in the event of him dying it uglily, since the Sages fined whoever makes a change, by placing him in an inferior position. Rabbi Yehudah disagrees with Rabbi Meir, and holds that since the dyer did not intend to steal the wool, he did not acquire the wool as a result of the change, and the law in his case is the same as that for one who "dyed it uglily," which we learned above. The law is in accordance with Rabbi Yehudah.

BAVA KAMMA: CHAPTER 9: MISHNAH 5

If one robs his fellow of the value of a perutah and swears to him, he must take it after him even to Media. He may not give it either to his son or to his agent, but he may give it to an agent of the Court. And if he died, he gives back to his heirs.

Kehati

The Torah states, "If any one sins, and commits a trespass against the Lord, and deal falsely with his neighbor in a matter of deposit, or of pledge, or of robbery, or have oppressed his neighbor; or have found that which was lost, and deal falsely therein and swear to a lie... then it shall be, if he has sinned, and is guilty [when he senses that he is guilty after having sinned], that he shall restore that which he took by robbery, or the thing which he has gotten by oppression, or the deposit which was deposited with him, or the lost thing which he found, or any thing about which he has sworn falsely, he shall restore it in full [i.e., the principal; it is called "in full" (Heb. rosh) since it is the main part], and shall add the fifth part more thereto; to him to whom it belongs he shall give it, in the day of his being guilty. And he shall bring his guilt offering to the lord, a ram without blemish out of the flock.... And the priest shall make atonement for him before the Lord, and he shall be forgiven..." (Lev. 5:21-26). We learn from this that whoever steals from his fellow, (or owes him money in one of the other ways mentioned in the passage), and denies this, and falsely takes an oath to this effect, and later admits, is obligated to return to him the principal with the addition of a fifth (i.e., one quarter of the principal, which is one fifth of the gross amount), and is obligated to bring a guilt-offering, which is called asham gezelot, the guilt-offering for theft.

Our mishnah teaches that if the theft was worth at least one perutah, the thief is not atoned until he returns it to the party from whom it was stolen; even if the party from whom it was stolen lives far away, the thief is obligated to go to him in order to fulfill the law to return a stolen article, as it is written, "to him to whom it belongs he shall give it, in the day of his being guilty." If, however, the stolen object is worth less than one perutah, he is not obligated for all these things, since less than the value of one perutah is not considered to be of monetary value, and is of no consequence.

If one robs his fellow of the value of a perutah and swears - falsely - to him - that he did not steal from him but later admits, he must take it after him even to Media - he has no atonement until he restores the stolen object to the party from whom it was stolen, and he is obligated to take it after him to the place where he is, even if he is in a distant land.

The reason for this is explained by Rambam: "Since he took an oath concerning it, the owner despaired of it, and no longer comes to claim it. The thief is therefore obligated to pursue the owner until he returns it to him, even if he is on an island in the ocean. If, however, he did not take an oath, even though he denied the theft, if he retracts and admits, he is not obligated to pursue the owner in order to restore to him the money that is in his possession; it rather remains in his possession until the owner comes and takes it" (Hil. Gezelah 7:9). The Tur writes that he nevertheless is obligated to inform him, "I stole such-and-such from you, come and take it from me" (Tur 367).

He may not give it - the stolen object - either to his son - of the person from whom it was stolen - or to his agent - of the person from whom it was stolen, since the object is not considered returned until it actually comes into the hands of the person from whom it was stolen, as was explained above, and the responsibility for its safe conduct rests with the thief. If, however, the party from whom the object was stolen authorized an agent in the presence of witnesses, then his agent is regarded as his own hand, and the thief may give him the stolen object, thereby fulfilling his obligations under the law of returning a stolen object (Gemara; Rambam, Hil. Gezelah 7:10), but he may give it to an agent of the Court - i.e. to one whom the Court appointed as an agent to take the stolen object to the person from whom it was stolen, and he is atoned from the time that it comes into the hand of the agent. Tosafot and Rabbeinu Asher explain the reason for this as an enactment of the Sages for the benefit of thieves, so that they would not refrain from restoring the stolen object. Rashi explains that this was enacted so that the thief would not have to spend much for traveling expenses (see the question raised by Tosafot). Similarly the law permits him to give the stolen object to the Court and be atoned, since the Court will take care of it until it reaches its owner (Rambam, ibid.).

And if he died - the party from whom the object was stolen - he gives back - the stolen object - to his heirs - our mishnah teaches that he must even take it to them to Media; or it teaches that if the thief swore to the one from whom the object was stolen, and the latter then died, the thief is obligated to return the principal and one fifth to the heirs, and to bring a guilt-offering (Tosafot).

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