We are starting the ninth chapter of tractate Bava Kamma, chapter "Hagozel", which deals with the laws of robbery. A person who takes something that is not his can do so in one of two ways, and both are forbidden by the Torah as two separate prohibitions:
Taking by force - Against the owner's will. This is robbery, and its prohibition from the Torah is: "You shall not rob".
Taking in secret - Stealthily and cunningly, without the owner's knowledge. This is theft, and its prohibition from the Torah is: "You shall not steal".
The difference between theft and robbery regarding payments:
In the seventh chapter we learned about the fines of double payment and fourfold or fivefold payment: One who secretly steals his friend's cow, goat or sheep, and subsequently sells or slaughters them, pays four or five times the value. All of these apply only to theft. For robbery, there is no obligation of double payment at all, and the Torah settles for one requirement: "Veheishiv es hagezeilah asher gazal" - The robber must return the object he robbed, and this is the Torah's full requirement.
It seems this is no different from other places in the Torah, where a person who acts with complete abandon and disregards the law and its consequences is not offered a wide opening to achieve atonement. He is obligated to return what he took, and the rest is left in the hands of Heaven. We find this regarding misappropriating consecrated property, and similarly with one who intentionally commits a sin for which one is obligated to bring a chatas offering - he is not permitted to bring a chatas. Here too, the robber blatantly disregards the law, and therefore the requirement of him is to return what he robbed; the rest of the account he must settle with the person he harmed and with Heaven, as his own separate reckoning.
There are no lashes from the Torah for robbery, because it is a negative commandment linked to a positive one - a prohibition that has a rectification through a positive commandment, which is the mitzvah to return the robbed item. These are all the consequences imposed on the robber: to return what he robbed, and anything beyond that is handed over to Heaven.
We therefore find that our Mishnah deals with the obligation to return an item that does not belong to the one who took it, and this obligation applies equally to theft and robbery. The double payments and fourfold or fivefold payments learned in the seventh chapter are specific to theft alone, but the obligation to return and all its details that will be explained in this chapter apply to both equally.
"Asher gazal" - As long as the robbed item exists:
The primary focus of our Mishnah and the following Mishnayos is on the exact wording of the verse: "Veheishiv es hagezeilah asher gazal". The words "asher gazal" seem superfluous, so what do they come to add? From here they derived: as long as the robbed item exists as it was at the time of the robbery, there is an obligation to return the item itself. But if it no longer exists - whether it ceased to exist entirely or was changed until it became something else - there is no longer an obligation to return the item itself or what was made from it, but rather to pay its value at the time of the robbery. Our Mishnah will also discuss cases where the item's value increased or decreased in the meantime.
The two conditions for a change:
We will get to the details of the laws later, but the fundamental principle is that the change in the robbed item must meet two conditions:
A change that cannot revert to its original state - When the change is made by the robber, it must be a one-way change with no possibility of returning it to its previous state.
A change in name - A change significant enough that the item carries a new name, and people refer to it as something else.
When both conditions are met, the object is no longer considered "that which he robbed," but rather a different item. Therefore, there is no obligation to return the object itself, but rather to pay its value.
Three examples for illustration:
Sanded wood: If one robs pieces of wood and works on sanding them until no splinters remain - even though there is much work involved, and to a certain extent it is irreversible, this is not a significant change that exempts him from returning the wood. People still refer to them as wood, just sanded. In the Holy Tongue, which is the primary factor for this matter, they were called "wood" before and "wood" after. Therefore, the wood returns to its owner.
Wood that became a chair: Here there is a physical change - the robber invested work into the wood itself - as well as a change in name, since it is no longer called wood or a log of wood, but rather a chair. Therefore, the robber is permitted to keep the chair in his possession and pay the value of the logs of wood as they were at the time of the robbery.
Beams that became a raft: If one robs beams and ties them together until they become a floating device - there is a physical action here, as well as a change in name: previously they were called beams and now a raft. However, since the knots can be untied and the beams will revert to being beams, this is a change that returns to its original state. Therefore, the robber must untie the raft and return the beams that he robbed.
The enactment for penitents:
Even though this is not the direct subject of our Mishnah, it is appropriate to mention here a familiar Rabbinic law: If a person robbed and no change was made in the object that technically nullifies the obligation to return it, but returning the object itself will cause him a significant financial loss - the Sages permitted, in order to encourage penitents, that he not return the robbed object itself, but rather its value. For example, one who robs a beam and builds it into his house, where if he were to take it out in order to return it, the house would be ruined or fall. Even though the beam remained a beam and kept its name, since returning it itself would cause the robber a great loss, the Sages said that due to the enactment for penitents, it is sufficient for him to return its value.
"Hagozeil eitzim ve'asan keilim, tzemer ve'asan begadim - meshalem keshe'as hagezeilah" - if one robs pieces of wood and makes them into vessels, or wool and makes it into garments, he pays according to the time of the robbery:
If one robs pieces of wood and turns them into vessels, for example, he makes bowls from a log of wood, or if he robs raw wool, spins it, and makes garments from it - this is a physical change that does not return to its original state, as the bowl cannot be returned to a log of wood, nor the sweater to raw wool. There is also a change in name here, as the object is now called a sweater or a bowl. Therefore, the robber is exempt from the obligation of "and he shall return the robbed item," since it is no longer "that which he robbed" in the same condition as when he robbed it, and it is sufficient for him to pay the value that the object had at the time of the robbery - even though its value is now greater. The increase in value, such as the difference between the raw wool and the sweater, the robber keeps for himself.
"Gezal parah me'uberes veyaldah, rachel te'unah vegazazah - meshalem dmei parah ha'omedes leiled ud'mei rachel ha'omedes ligazez" - if one robs a pregnant cow and it gives birth, or a laden ewe and he shears it, he pays the value of a cow about to give birth and the value of a ewe about to be sheared:
This refers to one who robs a cow that was pregnant at the time of the robbery and it gave birth to a calf, or one who robs a ewe (a female sheep) that was laden with wool and he sheared it, and he now has the wool and the sheep separately. In both cases, he pays according to the value of a cow that is about to give birth or a ewe that is about to be sheared. Even though the wording of the Mishnah sounds as if the payment is determined according to the time it was about to give birth, the truth is that the law is that one pays according to the value of the animal at the time of the robbery.
The Rishonim disagree regarding the explanation of the Mishnah:
Rashi, and similarly the Bartenura: The birth of the calf and the shearing of the fleece are not considered a change in the animal, and therefore the animal itself returns to its owner. However, the cow as it is now is worth less than a pregnant cow, and the financial difference between its value now and its value at the time of the robbery is made up by the robber with money.
The Rosh and others: The Mishnah should be read simply - a cow that changed from pregnant to not pregnant, and a ewe that changed from laden to not laden, are considered to have changed sufficiently, and the animal itself is no longer returned; rather, only its value at the time of the robbery is returned to the victim.
"Gezal parah venis'abrah etzlo veyaldah, rachel venit'anah etzlo vegazazah - meshalem keshe'as hagezeilah" - if one robs a cow and it becomes pregnant in his possession and gives birth, or a ewe and it becomes laden in his possession and he shears it, he pays according to the time of the robbery:
Here he robbed a cow that was not pregnant, and he kept it in his possession until it became pregnant and gave birth; or he robbed a sheep that was not laden with wool, and while in his possession it became laden with wool and he sheared it. In this case, he pays according to the time of the robbery - the value of the cow or the sheep as they were at the time he took them, whereas the calf or the wool remains in his possession.
According to Rashi, and as is also implied by the Bartenura, here too the pregnancy and birth or the growing of the wool and its shearing are not considered a fundamental change in the animal itself, and therefore the cow or the sheep themselves return to their original owners, but the robber is legally permitted to keep the calf that was born and the wool that was sheared. This is the Torah law.
It is worth noting that the Gemara cites an incident with Rav Nachman, and this is how Rabbeinu and others rule, that if this was a habitual thief who regularly goes out and steals - the Sages intervene and penalize him and say to him: You must also return the profit you generated. You stole a cow and used it for plowing - it is not enough to return the cow, rather you must also return the value of the plowing, and the same law applies to the wool you produced from the sheep and the like. However, this is only a rabbinic law; by Torah law it is sufficient to return the object as it was at the time of the theft.
"Zeh hakelal: kol hagazlanim meshalmin kishe'as hagezeilah" - this is the rule: all robbers pay according to the time of the robbery:
At the end, the Mishnah generalizes that all robbers and thieves return according to the value of the item at the time they took it. The Gemara asks, as is its way: What does "this is the rule" come to include? - whenever it says "this is the rule," the Gemara seeks to know what the rule comes to add. And the reason for this: generally every sentence in the Mishnah is a rule in itself, as the Mishnah does not give laws for one-off cases but rather general principles that apply to many cases. And since all its teachings are principles, why would it add a summarizing rule that repeats what has already been said? There must necessarily be an additional point to learn here.
And the Gemara answers that the rule comes to include even a minor change, or a change that occurs on its own without any action on the part of the thief, and this too is considered a change that allows him to keep what he took and pay only its value. How so? One who steals a lamb and keeps it in his possession until it reaches the age of one year, one month and one day (thirteen months) - it is no longer called a lamb in halachah but a ram, and a ram has different laws than those of a lamb or a kid. This is a fundamental change accompanied by a change of name, and therefore, even though the thief did nothing but wait, he has acquired the ram that grew in his possession.
And again, like all the laws of the chapter, this applies to both theft and robbery alike. It turns out that one who steals a lamb, who would be obligated in double payment according to the law of a thief that we learned in the seventh chapter, if he waited until the lamb grew and became a ram - he has become the owner of the ram and is not obligated to return it. And therefore if he sold the ram afterward, or slaughtered it after it grew, this is not considered as if he slaughtered or sold the lamb that he stole. And even though he practically slaughtered or sold the animal that he stole, he does not pay a fourfold payment, since what he slaughtered or sold was already his from the time it became a ram. And this is the practical halachah.
In summary: In this chapter we learned that the obligation of return is the same for theft and robbery, whereas the double payment and the fourfold and fivefold payments are specific to theft alone. We discussed the derivation from "asher gazal" - that which he robbed - that as long as the stolen object remains intact there is an obligation to return the object itself, and the two conditions of change that nullify this obligation: a change that cannot revert to its original state and a change of name. We brought the enactment of Takanas Hashavim, the laws of one who robs wood and wool, a pregnant cow and a laden sheep according to the two approaches of the Rishonim, and the inclusion derived from "this is the rule" - that even a change that comes on its own, like a lamb that became a ram, gives the thief acquisition of the object and obligates him only for its value.