Gezelah va'Avedah - Chapter 9

For he caused the damage himself.

These are losses beyond mortal control (onasim). Even if the owner had been in actual possession of the property, it would have depreciated in value in the same manner. In his Commentary on the Mishnah (Bava Kama 10:5), the Rambam writes that the owner cannot accuse the robber by claiming that the losses came as Divine retribution for the robber’s sins.

As mentioned in Chapter 3, Halachah 11, when a person obtains movable property by robbery, he is responsible for its damage by forces beyond his control.
Some early manuscript copies of the Mishneh Torah equate servants with movable property, but this is a printing error and does not reflect the Rambam’s perspective.

I.e., the robber is not responsible, for the property would also have been confiscated had it remained in the possession of its rightful owner.

E. g., the robber’s property was confiscated because of a debt he owed the king.

For the field was confiscated because of the robber. The king forced the robber to show him only fields that the robber himself owned, and not this field that belonged to another person.
The Or Sameach and the Turei Zahav (Choshen Mishpat 371) explain that this law is not a restatement of the previous law. This law refers to an instance in which the king seized properties belonging to many people. Nevertheless, since the robber was not forced to show the king the property he obtained by robbery, he is obligated to reimburse its owner.

As mentioned in Halachah 1.

When a loan is supported only by a verbal commitment [and not by a sh’tar (a contract of loan)], the lender can collect his due only from the property that is in the possession of the debtor at the time the matter is brought to court. For the debt was not public knowledge (as is a debt supported by a sh’tar), and the purchasers of the debtor’s property had no way of knowing that the property was encumbered.
Similarly, in the instance at hand, the purchasers of the robber’s property had no way of knowing that the robber had damaged the property. Therefore, the properties they purchased are not on lien to the robber’s debt.

Once the robber was obligated by the court, his debt became common knowledge, and the purchasers of his property should have taken into consideration the fact that the properties they purchased could be expropriated from them. See Hilchot Malveh V’Loveh 11:4.
Siftei Cohen 372:1 maintains that if the robber’s word would be accepted by the court if he claimed to have paid the debt, the property that he sold is not considered to be encumbered.

For, as mentioned above, the property remains in the possession of its rightful owner, and all the produce grown on it therefore belongs to him. Similarly, if the robber lived in a home or rented it out, he must pay the rent to the rightful owner (Siftei Cohen 371:5).

But not from property that he sold, because the extent of the benefit he derived is not public knowledge.

Although, as above, he is responsible for the depreciation of the land that he obtained by robbery, he is not given a chance to profit from its improvement.

E. g., if he spent 100 zuz and the land’s value increased by 150, he is given only 100.

E. g., if he spent 150 zuz and the land’s value increased by only 100, he is given only 100. These are the same laws that apply when a person plants within a field belonging to a colleague without his permission (Chapter 10, Halachah 8).

Since the purchaser was not aware that the field was obtained by robbery, he is not required to forfeit the increase in value that he brought about. The original owner is, however, not required to pay the purchaser more than he spent. Therefore, he is repaid in the manner described above.

The robber must pay the purchaser, for when he sold the land to him, he accepted responsibility for any loss that he would cause him. The Ra’avad states that the robber must explicitly accept responsibility in the deed of sale. The Maggid Mishneh states that since it is standard business practice to accept such responsibility, we take it for granted that he does so unless the deed of sale explicitly states otherwise. (See Hilchot Mechirah 19:3.) This is the position accepted by the Shulchan Aruch (Choshen Mishpat 373:1).

Once a person becomes liable for a debt that is public knowledge, all the landed property in his possession is considered to be on lien to that debt. Even if he sells the property afterwards, his creditor may expropriate the property from the purchaser.
In the case at hand, the sale of the property obtained by robbery was public knowledge. Therefore, we follow the principle of caveat emptor; anyone who purchases property from the robber must take into consideration the possibility that the property that he purchases will be expropriated from him because it is encumbered to the other property.

Bava Metzia 14b explains that this is a Rabbinic decree, instituted to create stability in the real estate market. The purchaser of the robber’s property is not held liable, because it is impossible to know whether or not the value of a property will increase. Therefore, a person buying property from the robber cannot be told that he should have taken this factor into consideration.

The Maggid Mishneh states that for this law to apply, the robber must prove that the purchaser knew that the field had been obtained by robbery.

Since he knew that the person who sold him the field was not its rightful owner, he should have understood that he has no right to work it. Hence, he is not entitled to any increase in value.
The Tur (Choshen Mishpat 373) explains that since the purchaser knew that the field did not belong to the robber, the money he gave him is considered to be a loan. Were he to receive any more money in return, it would resemble interest. Therefore, the Tur forbids payment for any increase in value, even if it came as a result of an investment.

Since the field is always in the possession of its rightful owner, any produce reaped from it belongs to him. He must be compensated for it by the person who benefited. The Maggid Mishneh states that the owner must nevertheless reimburse the purchaser for his expenses.

The purchaser need not suffer this loss himself. Instead, the produce is considered equivalent to the increase in the property’s value mentioned in the previous halachah.

For he is not entitled to benefit from someone else’s property.

Chapter 8, Halachah 14.

We do not say that the robber becomes the rightful owner of the property and he has the right to demand that the purchaser return the field and receive his money back. The Maggid Mishneh states that this law applies only when the purchaser was not aware that the field had been obtained by robbery, but Sefer HaTerumot does not accept this ruling.

See Hilchot Malveh V’Loveh 2:9, which explains the manner in which property is expropriated and sold to pay a person’s debts.

Instead, the robber may maintain possession of the field and reimburse the purchaser from other funds.

For transferring the property to someone else is the clearest indication that he was not concerned with upholding his original sale.
The Tur and the Ramah (Choshen Mishpat 374:2) maintain that if the robber purchases the field from its rightful owner, it automatically becomes the property of the first purchaser. Afterwards, the robber cannot nullify that person’s claim to it by selling it to someone else. It is only when the robber sells it to another person before acquiring it, that the first purchaser’s claim is nullified.
In his Kessef Mishneh, Rav Yosef Karo justifies the Rambam’s decision, explaining that in general, the transfer of the property to the original purchaser is based on our assessment that the robber’s intent is to act in good faith. When, as in the instance described in this halachah, we see that his intent is not to act in good faith, we view the instance as an exception, and the above general principle is not applied. Based on this reasoning, Rav Yosef Karo quotes the Rambam’s view in his Shulchan Aruch (Choshen Mishpat 374:2).

When the robber endeavored to purchase the property he sold, we assume that he undertook these efforts in order to uphold his word. When, however, he inherits the property, he has done nothing personally to acquire it. Therefore, we cannot say that he acquired it with the intent of upholding his word. Accordingly, should he desire to retain possession of the property in question and pay the purchaser with other funds, he is entitled to do so.

For otherwise he could have collected different property.

Therefore, if he desires to retain possession of this property and pay the purchaser with other funds, he may.

I.e., a present is compared to a sale and not to an inheritance.

I.e., the Rambam (and Bava Metzia 16a, on which his ruling is based) maintain that a person will not give away his property without a reason. Unless the recipient did something that was worthy of his being granted a gift, the giver would not make that gesture.

The Rashba, the Tur and the Ramah (Choshen Mishpat 374:4) differ with the Rambam’s ruling and maintain that unless the purchaser can prove that the robber caused the present to be given because he wanted to maintain good faith, the present is likened to an inheritance. As such, the property is allowed to remain in the robber’s possession, and he can repay his debt to the purchaser with other funds.
In the Shulchan Aruch (Choshen Mishpat 374:4), Rav Yosef Karo quotes the Rambam’s ruling. In the Kessef Mishneh, he explains that since the purchaser is in actual possession of the land, he is allowed to maintain his possession as long as there is some legal basis for him to do so.

The person feared that the robber would harm him physically or inform on him to the gentile authorities, if he did not agree to the sale. Hence, his consent is considered to be having been given against his will, and the sale is nullified.

The Ramah (Choshen Mishpat 151:3) differs and maintains that if the owner included a clause in the deed of sale taking responsibility if the field is taken from the robber, the sale is binding.

He is not penalized by having his money withheld for taking the field by robbery.

Then we can be certain that the robber did in fact give money to the owner.

The Ra’avad, Rabbenu Asher, the Tur and the Ramah differ and maintain that if the witnesses saw the robber give the owner money and the owner does not protest, the sale is binding.
In his Kessef Mishneh (in his gloss on Hilchot Mechirah 10:5), Rav Yosef Karo explains the Rambam’s decision, stating that it depends on the distinction between a person who has already been established as having taken a field by robbery, and other instances.

The literal meaning of the Rambam’s words (taken from Bava Batra 47a) is “he hung him until he sold it.”

See Hilchot Mechirah 10:1-5, which explain that unless a protest is issued before the sale, such a sale is binding.

Before the sale.