Gezelah va'Avedah - Chapter 2

I.e., and not its worth.

For, as stated in Chapter 5, Halachah 2, it is forbidden to derive benefit from an article obtained through robbery.

This demonstrates that an inheritance is not considered a transfer of property, but rather a continuation of the testator’s domain. For, as stated in Halachah 3, if the owner despairs of an article’s return, and it is transferred to another person, the article itself need not be returned.

In Halachot 10-14 the Rambam defines what is meant by undergoing a change. See the parallels in Hilchot Geneivah 1:12-15.

See Halachah 6 for an illustration of this principle. (See also Hilchot Geneivah 1:11.)
The Ra’avad, Rabbenu Asher and the Tur differ and maintain that the increase in value belongs to the robber even if the owner did not despair of the article’s return. The Shulchan Aruch (Choshen Mishpat 362:2), however, follows the Rambam’s ruling, while it appears that the Ramah (loc. cit.:8) follows that of the other authorities.

Our Sages feared that if the robber knew that he was required to pay the entire profit that he received from this article, he would never repent.

According to the Rambam, the increase in the value of the article itself (e.g., offspring born to a cow obtained by robbery) belongs to the original owner, and he must merely reimburse the robber for it. The Ra’avad and others differ and maintain that the increase in value itself belongs to the robber, and he need not return it. The Shulchan Aruch (loc. cit.) adopts the Rambam’s view.

The Tur and the Ramah (Choshen Mishpat 362:3) differ and maintain that the owner must have despaired of the article’s return before it was sold or given away, in order for the transfer of property to be binding.

With his despair, the owner abrogates his ownership of the article. The robber himself cannot become the owner, because he is obligated to return the article he obtained by robbery. When, however, he gives the article to the purchaser, the purchaser becomes the legal owner.
Note the parallel to Hilchot Geneivah 5:3. On that halachah, the Maggid Mishneh questions the Rambam’s ruling when the thief sold the stolen article before the owner despaired of its return. Although the Shulchan Aruch (Choshen Mishpat 356:3) follows the Rambam’s ruling, the Ramah maintains that the owner’s despair must precede transfer of the stolen article.

In this, the purchaser or the heir has a greater right than the robber himself.

And, as explained in Halachah 2, according to the Rambam the robber is not entitled to the increase in value before the owner despairs of the article’s return.

The Rambam does not mention whether or not the robber must reimburse the original owner for the money he paid. The Sefer Meirat Einayim 362:10 states that the owner should be reimbursed. Although some other authorities differ, this is the opinion of the later authorities.

For our Sages granted the consideration of acquiring the increase in value only to a Jewish purchaser and not to a gentile (Bava Kama 96a).

And must be reimbursed for it by the original owner.

This question is left unresolved by the Talmud (ibid.). Therefore, because of the doubt and because the increase in value is in the purchaser’s possession, he is granted this consideration. If, however, the original owner takes possession of the increase, the same logic is applied in the other direction, and he is not required to pay. See Hilchot Nizkei Mammon 1:11.

See Halachah 2.

Needless to say, it applies when the increase in value is due to the robber’s work or investment of resources. See Halachah 9.

As reflected in the following halachah, the Rambam does not consider pregnancy or growing wool a change in the animal’s status. Thus one might think that the calf would have to be returned to the original owner. Nevertheless, our Sages held the robber liable only for the value of the cow at the time of the robbery.

I.e., the calf and the shearings are considered as new entities. Thus since the owner has despaired, they become the property of the robber.

As mentioned above, according to the Rambam becoming pregnant or growing wool is not considered a change in the status of the animal. Therefore, the animal remains in the possession of its original owner. Since he did not despair of its return, he is entitled to the increase in its value (i.e., the offspring or the wool).
The Ra’avad, Rabbenu Asher, the Tur and the Ramah (Choshen Mishpat 362:8) differ and maintain that these are considered significant changes, and the thief acquires the right to the animal’s increase in value. The Shulchan Aruch follows the Rambam’s approach. (See also Hilchot Geneivah 1:11.)

For if the thief had consecrated the animal before the owner despaired of its return, the consecration would not be effective (Bava Kama 68b).

I.e., the animal is not considered as if it had been the thief’s property from the time of the theft, thus entitling him to the increase in value from the time of the theft until the consecration, as is the case regarding a thief or robber who did not consecrate the stolen article, as stated in Halachah 2.
The rationale for this distinction is that leniency was granted in Halachah 2 to encourage the thief to repent. No such leniency is granted if he consecrates or slaughters the stolen animal. The rationale for the distinction is that in the cases mentioned above, the thief or the robber did not utterly prevent the animal from being returned to its owner. Once he consecrates it or slaughters it, by contrast, through his actions, he causes it never to be returned to its owner again.

The Ma’aseh Rokeach and others cite the Rambam’s ruling in Hilchot Ma’aseh HaKorbanot 18:14 and explain that the sin referred to here is the sin of slaughtering a consecrated animal outside the Temple’s premises.

The principles stated in Halachot 6-8.

If, however, the animal became fat as a matter of course, without any expense on the part of the robber, the principles mentioned previously apply (Siftei Cohen 362:4).

For, as Bava Kama 65a states, the robber will complain: “Is it fair that I fattened it and you reap the profits.” See the parallel in Hilchot Geneivah 1:11.

In such an instance, the robber is not considered to have acquired the article he obtained by robbery and must return it to its original owner.

See Sefer Me’irat Einayim 360:10, which questions whether this applies only to bricks baked in the sun, or also to bricks fired in a furnace.

Therefore, he should return the brick and receive payment for the increase in its value.

See Sefer Me’irat Einayim 360:11, which cites conflicting opinions with regard to the ruling regarding a utensil fashioned from a strip of metal.

Sefer Me’irat Einayim 360:14 and Siftei Cohen 360:2 emphasize that the dye used must be permanent. If it is temporary, different rules apply.

In his Kessef Mishneh, Rav Yosef Karo objects to this example, explaining that the weave can be undone, and the garment can be turned back to threads. Therefore, when quoting these laws in his Shulchan Aruch (Choshen Mishpat 360:6), he omits this example.

I.e., it is not as if the article has been returned to its initial state. Instead, a second major change was wrought. Therefore, the object may remain in the possession of the robber, and he is obligated to return only the value of the article he obtained by robbery at the time of the robbery.

For both before and after it was cut down, it is referred to as a date palm. This reflects a general principle: A change brought about by a deed is not significant unless it causes the article to be called by a different name [Tur and Ramah (Choshen Mishpat 360:6)].

For once the leaves of a palm branch are separated from each other, it will never be called a lulav again.

For it is considered a new and distinct entity.

Since the animal is considered to be of a different type, it is considered to have undergone a change, even though that change is not a result of the actions of the robber. See the parallel in Hilchot Geneivah 1:13.

The Maggid Mishneh states that it appears that the owner is given this prerogative even if it conflicts with the robber’s wishes. The Maggid Mishneh questions this ruling, asking why the robber is not considered to have acquired the pieces by causing the article to undergo a change, for it is no longer in its original state.

E. g., a person obtained an animal by robbery. He is obligated to pay the animal’s value at the time of the robbery, and he is given the carcass. If, however, the owner desires the carcass, he may take it and also receive the difference between its value and the original value of the animal.

If the increase in value came from an external factor - e.g., the animal bore offspring - the robber would be entitled to the increase if the owner despaired of the return of the article.

The laws that apply when, however, the object is not returned intact are stated at the beginning of the following chapter.