Bava Kamma 190

he will do so for the principal even on [real] property that has been sold, but for the Amelioration only on assets which are free [in the hands of the vendor]. [But this is certain,] that the owner of the field is entitled to come and take away the field together with the increment. Now, do we not deal here with a purchaser who was ignorant of the law and did not know whether real property is subject to the law of robbery or is not subject to the law of robbery?<span class="x" onmousemove="('comment',' V. p. 552. n. 1. ');">¹</span>

And even in such a case the owner of the field will be entitled to come and take away the land together with the increment. Does not this show that even in the case of inadvertent misappropriation,<span class="x" onmousemove="('comment',' Such as was the case here with the purchaser. ');">²</span>

[R. Meir] would impose the fine? — It may however be said that this is not so, [as we are dealing here] with a purchaser who is a scholar and knows very well<span class="x" onmousemove="('comment',' Also that the field has been misappropriated by the vendor (cf. Shittah Mekubezeth a.l.) and as such is guilty of wilful misappropriation. ');">³</span>

[that real property is not subject to the law of robbery].<span class="x" onmousemove="('comment',' V. p. 552. n. 1. ');">¹</span>

Come and hear: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner of the wool] for the value of the wool.<span class="x" onmousemove="('comment',' V. Mishnah infra 100b. ');">⁴</span>

[It thus appears that he has to pay] only for the original value of the wool but not for the combined value of the wool and the improvement [on account of the colour]. Now, if you assume that R. Meir would impose the fine even in the case of inadvertent misappropriation why should he not have to pay for the combined value of the wool and the improvement? Does this not prove that it is only in the case of wilful misappropriation that the fine is imposed but in the case of inadvertent misappropriation the fine would not be imposed? — This could indeed be proved from it.

'R. Judah says that the misappropriated [animal] will be restored intact. R. Simeon says that the animal be considered as if it had been insured with the robber for its value [at the time of the robbery].' What is the practical difference between them?<span class="x" onmousemove="('comment',' I.e., R. Judah and R. Simeon. ');">⁵</span>

— Said R. Zebid: They differ regarding the increased value [still] attaching to the misappropriated article. R. Judah maintained that this would belong to the plaintiff<span class="x" onmousemove="('comment',' Since the article has to be restored intact. ');">⁶</span>

whereas R. Simeon was of the opinion that this would belong to the robber.<span class="x" onmousemove="('comment',' [Since the payment is made according to the value at the time of the robbery.] ');">⁷</span>

R. papa, however, said that both might agree that an increased value [still] attaching to the misappropriated article should not solely belong to the plaintiff,<span class="x" onmousemove="('comment',' Lit., 'should belong to the robber', but which means that it will not solely belong to the plaintiff, as will soon become evident in the text. ');">⁸</span>

but where they differed was as to whether the robber should be entitled to retain a half or a third or a fourth<span class="x" onmousemove="('comment',' I.e., in accordance with the definite percentage in the profits fixed in a given province to be shared by a contractor for his care and attendance to the welfare of the article in question; cf. B.M. V, 4-5. ');">⁹</span>

for [his attending to the welfare of the article]. R. Judah maintaining that an increased value [still] attaching to the misappropriated article would belong solely to the robber,<span class="x" onmousemove="('comment',' As the expression 'intact' means intact as it was at the time of the robbery. ');">¹⁰</span>

whereas R. Simeon maintained that the robber would be paid only to the extent of a half, a third or a fourth.

We have learnt: 'BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY.' That is so only if the cow has already given birth, but if the cow has not given birth yet it would be returned as it is. This accords well with the view of R. Zebid who said that an increased value still attaching to the misappropriated article would according to R. Judah belong to the plaintiff; I [the Mishnah] would then be in accordance with R. Judah. But on the view of R. papa who said that it would belong to the robber,<span class="x" onmousemove="('comment',' As the expression 'intact' means intact as it was at the time of the robbery. ');">¹⁰</span>

it would be in accordance neither with R. Judah nor with R. Simeon? — R. Papa might say to you that the ruling [stated in the text] would apply even where the cow has not yet given birth, as even then he would have to pay in accordance with [the value at] the time of the robbery. For as for the mention of 'giving birth', the reason is that since the earlier clause contains the words 'giving birth', the later clause similarly mentions 'giving birth'. It was taught in accordance with R. papa: 'R. Simeon says that [the animal] is to be considered as if its pecuniary value had been insured with the robber, [who will however be paid] to the extent of a half, a third or a fourth [of the increase In value].'<span class="x" onmousemove="('comment',' V. p. 555. n. 4. ');">¹¹</span>

R. Ashi said: When we were at the School of R. Kahana, a question was raised with regard to the statement of R. Simeon that the robber will be paid to the extent of a half, a third or a fourth [of the increase in value] whether at the time of his parting with the misappropriated article he can be paid in specie, or is he perhaps entitled to receive his portion out of the body of the misappropriated animal. The answer was found in the statement made by R. Nahman in the name of Samuel: 'There are three cases where increased value will be appraised and paid in money. They are as follow's: [In the settlement of accounts] between a firstborn and a plain son,<span class="x" onmousemove="('comment',' As the firstborn son has two portions in the estate as it was left at the time of the death of the father, but only one portion in the increased value due to amelioration after the father's death, so that by taking two portions in the estate the firstborn would have to pay back the other sons their appropriate portions in the increased value of the additional portion taken by him; cf. B.B. 124a. ');">¹²</span> between a creditor and a purchaser.<span class="x" onmousemove="('comment',' I.e., a creditor distraining on a field that originally belonged to his debtor but which was subsequently disposed of or inherited by heirs and the purchaser or heirs increased its value by amelioration. ');">¹³</span> and between a creditor<span class="x" onmousemove="('comment',' I.e., a creditor distraining on a field that originally belonged to his debtor but which was subsequently disposed of or inherited by heirs and the purchaser or heirs increased its value by amelioration. ');">¹³</span> and heirs.'<span class="x" onmousemove="('comment',' V. B.M. 110b. ');">¹⁴</span> Said Rabina to R. Ashi: Did Samuel really say that a creditor will have to pay the purchaser for increased value? Did Samuel not state<span class="x" onmousemove="('comment',' B.M. ibid. and 14b; Bk. 42a. ');">¹⁵</span> that a creditor distrains even on the increment?<span class="x" onmousemove="('comment',' Without paying for it, v. B.M. ibid. ');">¹⁶</span> — He replied: There is no difficulty, as the former ruling applies to an increment which could reach the shoulders to be carried away.<span class="x" onmousemove="('comment',' As where the produce is quite ripe and could be separated from the ground in which case it is the property of the purchaser. V. B.B. (Sonc. ed.) p. 183. n. 3. ');">¹⁷</span> whereas the latter ruling deals with an increment which could not reach the shoulders to be carried away.<span class="x" onmousemove="('comment',' I.e., which is inseparable from the ground and which is distrained on together with the field by the creditor. ');">¹⁸</span> He rejoined:<span class="x" onmousemove="('comment',' I.e., Rabina to R. Ashi. ');">¹⁹</span> Do not cases happen every day where Samuel distrains even on an increment which could reach the shoulders to be carried away? — He replied: There is still no difficulty,