daf bit: Bava Kama 93

[cellio]

We have already determined that in the case of robbery the thief owes damages based on the value of the stolen goods. (He pays a multiple of this value.) What if the value changed after the robbery? The mishna on today's daf addresses this. If one stole pieces of wood and made utensils from them, or stole pieces of wool and made garments from them, he owes damages for the value of the pieces of wood or wool. Similarly, if he stole a pregnant cow and it then gave birth to a calf, or he stole a sheep ready for shearing and he then sheared it, he owes the value of a pregnant cow or a sheep ready for shearing. However, if he stole a cow and it then got pregnant and gave birth, or he stole a sheep and it then grew out its coat and he sheared it, then he owes for a non-pregnant cow or a sheep not ready for shearing. This is the general principle, the mishna tells us: all robbers pay in accordance with the value of the stolen goods at the time of the robbery. (93b)

That the thief owes full restoration if he has diminished the value of the stolen items seems obvious to me. That the thief gets to benefit from the proceeds of his theft, for example the calf if the stolen cow later becomes pregnant, comes as more of a surprise to me. What happens if he stole a cow, it became pregnant, and he then paid damages before it gave birth -- if the thief returns the cow, would the owner owe the thief for the increase in value? I suspect that the practical answer is that you treat livestock and goods as commodities -- the thief pays the value of a cow but doesn't necessarily return that specific cow. I'm speculating, and perhaps it's addressed somewhere in the coming pages.

Comments

[isaac moses (from livejournal.com)]

I think that one of the principles involved here is that things can happen that make physical goods change ownership, such that returning the goods themselves to their rightful owner is no longer the correct remedy, and we revert to compensating him monetarily for the theft. One of the things that can cause such an ownership change is a significant change in the physical state of the goods, such as turning raw materials into products.

I think that getting pregnant, giving birth, and getting shorn are all the sorts of physical changes that effect such a transfer of ownership. (I'm not sure about growing a coat of wool, but the rulings you list would come out the same either way.) So, as soon as one of these things happen to a stolen animal, returning it is off the table, and the question is just how much the thief has to pay.

A result of this policy, if I'm right, is indeed that a thief can end up profiting from crime. Suppose someone wants to get into the wool-generation business and even has the capital to pay for sheep, but can't find anyone in town who will sell him some. He can steal some sheep, hide them for long enough to grow a coat of wool, and then come back to town, admit his theft, and pay off the sheeps' previous owner. He has effected a hostile takeover of the sheep.

This sounds like a moral hazard. I think what we rely on to keep people from doing this is that stealing is a sin, with all that comes with that, both spiritually and socially, including that one way or the other, God makes sure everyone gets what's coming to them. This exception-catching mechanism is, I think, an important basic aspect of Torah jurisprudence, and is expressed in Exodus 23:7 and the Rashi thereon, in the context of letting alleged murderers get off on technicalities.

(I've been learning one mishna per day from Mishnayot Nezikin, in parallel with y'all learning one daf per day of the gemara. I estimate that we'll finish Order Nezikin at around the same time. I'm ahead of y'all right now - a couple of mishnayot into Bava Metzia, but eventually, I'll be learning tractates for which there isn't Gemara, giving Daf Yomi a chance to catch up with me. So, I tend to have concepts related to your Daf posts relatively fresh in my mind these days, though I haven't seen the discussions in the Gemara except to the extent that they're cited in the Mishna commentary that I look at.)