Rambam - 1 Chapter a Day

Sefer Me’irat Einayim 362:19 explains that since the article obtained by robbery is considered to belong to its original owner at all times, the financial ramifications of the robbery are considered to have taken effect at the time of the article’s destruction or its being transferred to another person.

We have altered the literal translation of the Rambam’s words, which is “when it departed from the world,” for they appear to refer only to an instance when the jug was broken or its contents drunk.
Bava Kama 65a uses the expression “its value at the time of judgment.” The Rambam changes the wording of his source to indicate that even if it increased in value more between the time it left the robber’s possession and the time the case was brought to court, the robber is not obligated to pay the latter increase.

And the original owner would have received the benefit of the increase, as stated in the final halachah of the previous chapter.

Sefer Me’irat Einayim 362:20 states that this refers to loss due to other causes than from the robber’s negligence. If it is lost because of his negligence, he must pay its worth at the time of its loss.

For a robber is obligated to pay the value of the article at the time of the robbery (Bava Kama 93b).

In the previous halachah, when the robber destroyed the article himself, the price was calculated from the time the article was destroyed. That, however, represented a stringency for the robber. Making such a calculation in the situation described in this halachah would bring about a leniency, and our intent is not that the sinner should benefit (Sefer Me’irat Einayim 362:21).

Our translation is based on the Rambam’s Commentary on the Mishnah (Keilim 16:5).

The commentaries cite Hilchot Nizkei Mammon 4:14 as a parallel.

For more stringent laws always apply with regard to consecrated property.

The Tur and the Ramah (Choshen Mishpat 363:1) differ with the Rambam (and the Shulchan Aruch, which quotes his ruling) and maintain that even if a coin has been disqualified, a thief can fulfill his obligation by returning it intact to its owner, as in the following halachah.

Sefer Me’irat Einayim 363:1 states that the intent is half or more.

The difference between servants and the animals mentioned in the first clause is that according to Scriptural Law, the laws governing servants are equated with those governing land. With regard to land, we follow the maxim: “Land can never be stolen.” For the land always remains the legal property of its rightful owner. Therefore, all that is necessary is to return it. These same principles are applied to servants (Bava Kama 96b).
The Tur (Choshen Mishpat 363) differs with the Rambam’s ruling and maintains that servants are considered to be movable property and are governed by the laws mentioned in the previous halachah. The Tur further states that, according to the version of the Mishneh Torah he possessed, the Rambam shares his view.

Less than half (Sefer Me’irat Einayim, loc. cit.).

Once terumah becomes impure, it is forbidden to be eaten. The only benefit that may be derived from it is to use it for kindling.

At which time it is necessary to destroy all leaven. Even after the festival, leaven that had existed on Passover must be destroyed.

E. g., it was sodomized and thus disqualified for use as an offering.

Because of a blemish.

For killing a man, or because a man was to be executed for sodomizing it.

In all these instances, the article itself appears unchanged. Therefore, although its value has depreciated, and in certain instances it has become totally worthless, that is not apparent in the physical form of the article obtained by robbery. Therefore, it is not of consequence in court.

For then, the original owner will have received his article intact. Despite its loss of value, the robber has kept to the letter of the law.

Leviticus 5:20-26 states that if a person takes a false oath to deny a robbery, he must pay the principal plus an additional fifth (actually one fifth of the new total - e.g., five shekels if he stole an article worth four), and bring a guilt offering in atonement.
In this instance, although the article obtained by robbery itself has already become valueless, since there are instances when the robber will be held liable for its original value, he is held liable if he denies the robbery under oath.
The Ra’avad differs with the Rambam on this point and maintains that as long as the robber possesses the article and can return it, he is not liable for any additional payment, even though he denied possession of the article under oath.

Sefer Me’irat Einayim 363:7 states that this applies even though the owner of the animal needed his beast at that time and was prevented from working with it because it had been taken by the robber. See the following halachah and notes.

Fines - payments of more or less than the principal - are not imposed in the diaspora (Sanhedrin 31b). Thus, one might think that a penalty of this nature would also not be imposed. But there is a fundamental difference in this instance. This penalty is not an obligation of the law, but rather a pragmatic injunction applied by the Sages to prevent the perpetuation of injustice. Therefore, it is enforced even in the diaspora.
Sefer Me’irat Einayim 363:9 states that the judges who impose such penalties must have been given authority by the leaders of the community or the Torah leaders of the generation.

For if they become used to remaining idle, it will be more difficult to have them work later. Therefore, it is considered as though the owner of the servants consented to their use (Bava Kama 97a).

The commentaries explain the difference between a servant and an animal (as in the previous halachah) as follows. An animal is considered to be movable property, and therefore the benefit gained from movable property can be taken by the robber. A servant is governed by the same laws that govern land (see Halachah 4 and notes) and thus is always considered to be in the possession of his master. Therefore, his master is entitled to the wages that he earns.
(This explanation does present a difficulty. For the Rambam maintains that until an owner despairs of the return of his article, he is entitled to the benefit derived from it. Why then in the previous halachah does the Rambam not differentiate between whether the owner despaired of the animal’s return or not? One can, however, distinguish between the increase in value of the article itself and the benefit resulting from its work. See the Ma’aseh Rokeach.)

The person who seizes the boat is considered to be a robber.

Regardless of whether this amount is greater or less than what one would receive for hiring out the boat. For a robber must return the article or its value at the time of the robbery.

I.e., the owner has the choice of collecting whichever amount is greater. Had he hired the boat out voluntarily, he would not have been able to collect more than the fee agreed upon. Since this is not the case, he has this option.

And the fee at which the boat is hired is of no concern.

I.e., situations in which a utensil that is often hired is taken without its owner’s consent.

The Tur and the Shulchan Aruch (Choshen Mishpat 363:6) preface their treatment of this halachah with the following introduction: When do the laws the Rambam mentions apply? When the owner of the dwelling did not approach the dweller and order him to leave. If, however, he approached him and ordered him to leave, and the dweller refused, the dweller is obligated to pay him rent for the dwelling.

The Maggid Mishneh states that if the person who dwells within causes the value of the property to decline - e.g., he caused the walls to blacken - since he is required to pay for the damages, he is also required to pay for the entire rental. The Shulchan Aruch (Choshen Mishpat 363:7) quotes this with the preface, “There are those who say,” a phrase that usually indicates that this ruling is based on only one source.

Our Sages refer to the approach of preventing a person from benefiting when one does not suffer a loss as “the attribute of Sodom.” In this instance, however, that term cannot be applied exactly, for in this instance the owner has the legitimate right to derive benefit from his home. Therefore, although we ordinarily follow the principle that “we force a person [not to practice] the attribute of Sodom,” no homeowner is forced to allow a homeless person to live in a vacant property belonging to the homeowner.

For as long as this person is dwelling there, the owner cannot rent it out to anyone else. The Ramah (loc. cit.) adds that in the present time, we assume that a vacant dwelling will be rented out, even though the owner had never rented it out previously.
Tosafot (Bava Kama 20a) differs and maintains that the dweller is not liable to pay in that instance. Since he did not derive any benefit - for he does not usually pay rent for a dwelling - and he did not damage the owner’s property - but merely prevented him from gaining a profit - he is not obligated. The Beit Yosef (Choshen Mishpat 363) differs and explains that since the dweller received benefit (albeit not financial benefit), and the owner was prevented from deriving a profit, the dweller is held liable.

The Rambam maintains that the person who dyed the wool without the owner’s knowledge must pay the difference between the value of white wool, and that of the wool of the color that resulted. He need not reimburse the owner for the dye that the owner used, because that dye is on the wool - the fact that it has been covered up by the second dye is of no consequence.
The Ra’avad differs with the Rambam regarding the proper choice of wording, but not with regard to the content of his ruling.

This point is the subject of an unresolved difference of opinion among our Sages (Bava Kama 101a). Therefore, the sum is not awarded to the plaintiff. But if he seizes it from the defendant outside the court, it is not expropriated from him. See Hilchot Nizkei Mammon 1:11.

This definition of the term sh’lichut yad, literally “lay a hand on,” is evident from the examples given by the Rambam and is reflected in the wording of the Tur and the Shulchan Aruch (Choshen Mishpat 292:1).

He is considered a gazlan (robber) and not a ganav, for he is not acting in stealth.

We ordinarily follow the principle that “there is no concept of agency with regard to the commission of a sin.” Bava Metzia 44a explains by Biblical exegesis that this instance is an exception.

Exodus 22:7 states that an unpaid watchman who claims that an article entrusted to him for safekeeping was destroyed by forces beyond his control must take an oath that he did not “lay a hand on” the article. Implied is that if he did take the article for his private purposes, he is liable in such a situation.

All the rules stated in this and the previous chapter regarding to whom the increase in the article’s value belongs are applicable.

I.e., in the event that it is destroyed by forces beyond his control.

This ruling applies even when the watchman makes a statement to this effect in the presence of witnesses.

As clarified by Tosafot (Bava Metzia 41a) and the Shulchan Aruch (loc. cit.), sh’lichut yad must ultimately involve taking something from the entrusted article. If the watchman takes an article for his personal use, but returns the article intact, he is not considered as having been shole’ach yad, but is instead considered to be a sho’el shelo mida’at, “a borrower without consent.” (See Halachah 15.)
The Rambam’s ruling here means that if the watchman ultimately intends to take the article - or a portion of it - as his own, he is liable immediately when he lifts the article up, even though as yet he has not taken any portion of it as his own.

A small serving of wine equivalent to 86.4 cubic centimeters according to Shiurei Torah and 150 cubic centimeters according to the Chazon Ish.

I.e., for the entire jug. Bava Metzia 44a explains that even when the watchman desires only to take such a small amount, he is held liable for the entire jug, because when the jug is full, the taste of the wine is preserved. Therefore, the entire jug is considered to be serving the small amount the watchman desires.

This illustrates the principle stated in the previous halachah.

Because if more money is kept in a wallet, it will be guarded with a greater degree of care than otherwise.

For in fact, this is all that he took.
Therefore, the watchman is held liable only for the dinar. If, however, the owner seizes the value of the entire amount, it is not expropriated from him.

For the watchman did nothing to acquire it as his own.

He is liable, not as a robber, but as one who has damaged his colleague’s property.

And thus did not acquire it as his own, in contrast to the instance mentioned in the previous halachah.

For we assume that his taking the revi’it from the jug caused air to enter it, and that caused all the wine to sour.

The denial itself - even before he takes an oath to free himself of responsibility - is sufficient to have him classified as a robber (Sefer Me’irat Einayim 294:2).

If, however, he made the denial outside the court, he is not considered to be a robber. We assume that he temporarily misplaced it and made the denial to forestall being asked to return it immediately.

Although the watchman did not pick up the article or perform any other kinyan, his denial is sufficient to have him considered to be a robber.
He also is disqualified as a witness, and his oath is not acceptable because of this denial [Shulchan Aruch (Choshen Mishpat 294:1)].

I.e., witnesses testify that they saw the article in his possession at the time he made his denial in court. If, however, the article was discovered in his possession afterwards, he is not held liable. We assume again that the article was in another place at the time he was called to court, and he was trying to forestall being pressed to pay for it.

I.e., he is liable for the article in the event it is destroyed by forces beyond his control. In this instance, the person does not intend to take the article as his own or even to diminish its value at all. He merely seeks to use it for his own purposes and then return it intact. Nevertheless, since he takes it without the owner’s consent, he is considered to be a robber.
In addition to the example offered by the Rambam, this law applies to a watchman who makes use of an entrusted article without causing its value to diminish, and then returns it to the place where it was kept [Shulchan Aruch (Choshen Mishpat 292:1)].

In contrast to an ordinary borrower, who is liable from the moment he borrows the object, a borrower who takes an object without the owner’s consent is not liable until he makes use of the article.

He returns it himself, as the Rambam continues to illustrate.

For this is not considered to be a halachically significant return of the article that was borrowed. See Hilchot Sh’luchin 2:2.

As the Rambam states (Hilchot Malveh V’Loveh 3:4): A person may not forcibly take collateral from a debtor. This prerogative is, however, given to an agent appointed by the court.

This is forbidden even to an agent of the court (ibid.).

The Ra’avad differs with the Rambam and maintains that as long as the debt is legitimate, the person is not considered a robber for taking the collateral by force. The Shulchan Aruch (Choshen Mishpat 359:6) follows the Rambam’s opinion.