POINT BY POINT OUTLINE
prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
1) WHEN DOES THE ENACTMENT APPLY?
(a) Question: The enactment was made due to a case in which a man didn't repent lest he need to return his belt!
(b) Answer: It meant, lest he need to return the value of his belt (the belt itself was not stolen).
(c) Question: Is it really true that the enactment does not apply if the stolen object is still here?
1. (Mishnah): There was an enactment to help penitents that if one built a stolen beam into a building, he returns only its value.
(d) Answer: That case is different. (Letter of the law, he must dissemble the building.) The loss is so great, that Chachamim consider it as if the beam is not here.
2) DOES SHINUY ACQUIRE A STOLEN OBJECT ACCORDING TO R. MEIR?
(a) (Mishnah): If he stole a pregnant cow and it gave birth...
(b) (Beraisa - R. Meir): If one stole a sheep and sheared it, or a cow and it gave birth, he pays for it and its shearings and children;
(c) R. Yehudah says, he returns the stolen animal itself;
(d) R. Shimon says, we view what the animal was worth at the time of the theft.
(e) Version #1 - Question: What is R. Meir's reason?
1. Does he hold that Shinuy does not acquire?
2. Or, does he hold that Shinuy Koneh, but here we fine the thief, lest he profit from his sin?
3. Question: What difference does it make which is his reason?
4. Answer: It determines what he pays for a stolen animal that changed and declined in value.
(f) Answer #1 (Mishnah): If a thief stole an animal or slaves and they grew old, he pays like the time of the theft;
1. R. Meir says, regarding slaves he says 'here are your slaves.'
2. Inference: Regarding animals, R. Meir agrees that he pays like the time of the theft;
i. If he held that Ein Shinuy Koneh, also regarding animals he should allow saying 'here are your animals'!
ii. Rather, he must hold that Shinuy Koneh. When the stolen object rises in value, we fine the thief so he will not profit.
(g) Rejection: No. R. Meir addresses Chachamim's opinion;
1. I hold that Ein Shinuy Koneh. Even regarding animals, he can say 'here is your animal';
2. You hold that Shinuy Koneh. You should agree about slaves, for they are equated to land and cannot be stolen!
3. Chachamim disagree. They hold that slaves are not like land.
(h) Answer #2 (Mishnah - R. Meir): Reuven gave wool to Shimon to dye red, and he dyed it black, or vice-versa - Shimon pays him the value of the wool he received.
1. Inference: He only pays the value of the wool, not the added value of dyed wool.
i. If he held that Ein Shinuy Koneh, he should pay for dyed wool!
ii. He must hold that Shinuy Koneh (and in the Beraisa, we fine the thief).)
(i) Version #2: Surely, R. Meir holds that Shinuy Koneh, for Rav switched the opinions in the Mishnah;
1. (Rav's version of the Mishnah - R. Meir): If a thief stole an animal or slaves and they grew old, he pays like the time of the theft;
2. Chachamim say, regarding slaves he says 'here are your slaves.'
i. In our Beraisa, R. Meir fines the thief so he will not profit.
3) FINING THE THIEF
(a) Question: Does R. Meir fine only a Mezid thief, or even one who b'Shogeg took another's animal (e.g. he bought it from the thief)?
(b) Answer #1 (Beraisa): Five kinds of payments are collected only from Bnei Chorin (i.e. but not from property bought from the one who owes):
1. Peros (this is explained below);
2. Improvements (this is explained below);
3. One who accepted to feed his wife's child (from a previous husband);
4. A loan document that does not put a lien on land;
5. A Kesuvah that does not put a lien on land.
6. Question: Who is the Tana of this Beraisa, who holds that a document does not automatically put a lien on land?
7. Answer: It is R. Meir.
8. Question: The Beraisa lists Peros and improvements. What is the case?
9. Answer: Reuven stole Shimon's land and sold it to Levi, who improved it. When Shimon takes back the land, Levi can collect what he paid from Reuven's Meshu'abadim (property that he sold), and the value of his improvements from Reuven's Bnei Chorin.
10. Suggestion: Levi is an ignoramus, who does not know whether or not land is (legally considered) stolen, and still Shimon collects the land and its improvements.
i. This teaches that R. Meir fines even if the thief was Shogeg!
(c) Rejection: No, Levi is a Chacham (he knows that land is not stolen).
(d) Answer #2 (Mishnah - R. Meir): If Reuven gave wool to Shimon to dye red, and he dyed it black, or vice-versa, Shimon pays to him the value of the wool that he received.
1. Inference: He only pays the value of the wool, not the added value of dyed wool.
i. If R. Meir fines even for Shogeg, Shimon should pay for dyed wool!
2. Conclusion: R. Meir fines only one who stole b'Mezid.
4) IMPROVEMENTS ON THE STOLEN OBJECT
(a) (Beraisa - R. Yehudah): He returns the stolen animal itself;
(b) R. Shimon says, we view the thief like a Shomer guarding an animal whose value was assessed (at the time of the theft).
(c) Question: What do they argue about?
(d) Answer #1 (Rav Zvid): They argue about improvements to the stolen object.
1. R. Yehudah holds that the owner keeps the improvements, and R. Shimon holds that the thief gets them.
(e) Answer #2 (Rav Papa): All agree that the thief receives improvements on the stolen object;
1. R. Yehudah holds that the thief keeps all the improvements. R. Shimon holds that the thief keeps a half, third or quarter (like people who raise others' animals normally receive).
(f) (Mishnah): If he stole a cow and it became pregnant and gave birth, or a sheep and it became laden with wool and he sheared it, he pays the value at the time he stole it.
(g) Inference: Had it not given birth, he would return the cow itself.
(h) Question: Granted, according to Rav Zvid, the Mishnah is like R. Yehudah, who says that the owner gets all improvements on the stolen object;
1. However, Rav Papa holds that all agree that the thief gets (at least part of) the improvements. The Mishnah is not as either Tana!
(i) Answer: Rav Papa explains that even had it not given birth, he pays the value at the time he stole it (the Mishnah is like R. Yehudah, who says that the thief gets all improvements);
1. The Mishnah said that it gave birth for parallel structure to the previous case.
(j) Support (for Rav Papa - Beraisa - R. Shimon): We view the animal as if its value was assessed (at the time of the theft) for one who raises another's animal to keep a half, third or quarter of the improvement.
(k) Question (Rav Ashi): R. Shimon says that the thief gets a half, third or quarter of the improvement. Does he get money, or can he demand some of the meat of the animal?
(l) Answer (Rav Ashi): We learn from Shmuel.
1. (Shmuel): In three cases, we evaluate the improvements and they are paid with money:
i. A firstborn who gets an extra share of property that all the brothers improved after the father died (he pays their share of the improvements);
ii. A creditor who takes land that people bought from the borrower (the creditor pays for the improvements that they made);
iii. A creditor who takes land from the orphans of the borrower.
2. (R. Chananel, brought in Rashba - in all other cases, the improvements are collected from the matter itself; Tosfos - a thief receives money, just like these cases.)
(m) Question (Ravina): Did Shmuel really say that a creditor pays for improvements made by one who bought from the borrower?!
1. Contradiction (Shmuel): A creditor collects (and keeps) the improvements (that the buyer made).
(n) Version #1 (Rashi) Answer (Rav Ashi): The creditor pays the buyer for produce that has grown fully and is ready to be harvested.
(o) Version #2 (Tosfos) Answer (Rav Ashi): He pays for improvements that can later be taken from the field (i.e. produce that is not fully ripe).
(p) Version #3 (R. Tam) Answer (Rav Ashi): He pays for improvements that came through toil.
(q) Question (Ravina): In many cases Shmuel ruled that the creditor gets such improvements without paying!
(r) Answer (Rav Ashi): He pays only when the value of the improved land is more than he was owed.
(s) Question (Ravina): Shmuel is only like the opinion that even if the buyer has money, he cannot pay the loan and keep the land;
1. According to the opinion that if the buyer has money, he can pay the loan and keep the land, the buyer should be able to say 'consider the money you must pay for the improvements as partial payment of the loan, and leave me that amount of land!'
(t) Answer (Rav Ashi): The case is, the borrower made the land an Aputiki, i.e. the debt will be collected only from the land (not from money).