Thievery Corporation

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In Chapter Nine of Tractate Bava Kamma, the rabbis continue their inquiry into different kinds of injury and damage. The previous chapter examined cases of deliberate personal injury: How should someone who inflicts a bodily injury be punished? (The answer, as we saw, is not “an eye for an eye,” as the Bible recommends, but the payment of monetary compensation.) In this week’s Daf Yomi, we read about a different kind of deliberate injury: theft. Here, too, there is an explicit biblical law, stated in the Book of Leviticus, which holds that a thief must return what he stole to its original owner, plus an additional one-fifth as a penalty.

In the Talmud, however, the rabbis raise a problem that the biblical law doesn’t seem to foresee. What if a thief steals an item, and while it is in his possession it either increases or decreases in value? Say the thief steals a cow, and it subsequently becomes pregnant and gives birth to a calf. Who owns the calf, the original owner or the thief? Or, contrariwise, what if the thief steals a coin and it breaks while in his possession, rendering it worthless? Does the thief return the broken pieces of the coin, or must he pay back the value of a whole coin? Who keeps the profit or suffers the loss, the thief or the original owner?

At the bottom of these questions lies the legal definition of possession. Does a thief enjoy legal possession of something he steals, or does the item always technically belong to its original owner, even if the thief has usurped it? The answer, according to the mishna in Bava Kamma 93b, is that it all depends on whether the stolen item undergoes a change. If a thief can return an item unchanged, he must do so; but if it undergoes a change while in his possession, then it becomes his property. As a result, he no longer has to give back the original item to its owner, as the Bible seems to envision. Instead, he pays money equivalent to the value of the item as it existed when it was stolen. “If one robbed another of a cow, and it became pregnant in his possession, and then it gave birth; or if one robbed another of a ewe, and it became laden with wool in his possession, and he sheared it, then the robber pays according to the value of the animal at the time of the robbery. This is the principle,” the rabbis sum up. “All robbers pay according to the value of the stolen at the time of the robbery.”

This ruling gives rise to a whole series of questions in the Gemara. First of all, what constitutes a meaningful change in the status of a stolen item? If a thief steals wood and uses it to build a bookshelf, this is clearly a change in status, and so the thief repays the value of the wood, not the higher value of the shelf. But what if a thief steals wooden planks and then sands them down? Is this a meaningful change in status, so that he can keep the planks, or is it trivial, so that he must return them? According to the Gemara, it is legally meaningful; any change, reversible or irreversible, grants possession to the thief who makes it.

Yet no sooner has the Gemara stated this principle than it records the dissenting opinions of several sages. According to Beit Shammai and other authorities, we learn that even a changed item “remains in its place”; that is, it has the legal status of its original condition. To prove the point, the Gemara finds an analogy from an apparently unrelated area of Jewish law. The Book of Deuteronomy says that goods or money received in exchange for something unclean is itself unclean and cannot be offered as a Temple sacrifice: “You shall not bring the hire of a harlot or the price of a dog into the House of the Lord your God.” And what if a prostitute is paid in wheat, and she grinds it and turns it into flour—can she use this flour as part of a Temple offering? The law says no; and for Beit Shammai, this is proof that a change in an item’s condition does not change its legal status. Just as the uncleanness of the wheat is not removed by turning it into flour, so the stolenness of a cow does not change when it gets pregnant.

All this assumes, of course, that it is possible for a thief to return the actual item he stole. But as the Gemara suggests, this is not usually the case. Most often, a thief will not hold on to the actual cow or ewe or wooden boards he took, but will exchange them for money. It follows that, were it required to return the original item, few thieves could ever achieve repentance. Rabbi Yochanan tells the story of a certain thief who, after a long career in crime, wanted to repent. But his wife pointed out that it would be impossible for him to retrieve all the things he had stolen over the years, so “he refrained and did not repent.”

In response to such dilemmas, the Sages instituted a counterintuitive rule: “With regard to robbers or usurers that returned the stolen item … one should not accept it from them. And with regard to one who does accept it from them, the Sages are displeased with them.” It is better to insist on repayment in money, which is easier for a repentant thief to manage, than to take the original item, which will often be an impossible barrier to repentance. In this way, the rabbis innovate on the Bible similar to what they did with “an eye for an eye, a tooth for a tooth”: Payment of money replaces the original Biblical remedy. This is a sign of a more advanced commercial civilization, used to thinking of objects in terms of their monetary value rather than as things in themselves.

Simple theft, however, is not the only way in which one person can deprive another of his property. In Bava Kamma 98b, the mishna mentions the case of a craftsman who damages items that were entrusted to him: “If one gave a chest, a box, or a cabinet to a carpenter to fix, and he damaged it, he is liable to pay.” The same goes for a slaughterer who improperly kills an animal in a way that renders it unkosher, and therefore uneatable. These craftsmen must pay compensation for the financial damage they caused the customer.

But say that, instead of giving a carpenter a vessel to repair, you gave him raw wood to make into a vessel; and then imagine that, after making a cabinet or chair out of the wood, he accidentally broke it. In this case, does the carpenter owe the customer damages? What this is really asking, the rabbis observe, is once again a question about abstract concepts of ownership. Does a craftsman personally own an object he makes on commission? Or does the object belong to the person who paid for it, even if it is temporarily in the craftsman’s possession?

A lot turns out to hinge on this distinction, even beyond matter of theft and damages. Say, for instance, that a craftsman offers to betroth a woman with his work. The Gemara quotes a baraita concerning a woman who gives a goldsmith gold to make into jewelry, and says, “I will be betrothed to you as payment for your work.” When he returns the items to her, is she in fact betrothed? The answer comes down to whether the goldsmith, in making the jewelry, is creating a new item that he possesses or simply performing labor for a wage. If the goldsmith legally owns the jewelry, he should have the option of either selling it to the customer in exchange for money or giving it to her as a bride-price.

As it turns out, however, the rabbis agree that this is not legal: A craftsman does not have ownership rights over an item given to him for repair or improvement. The payment he receives from a customer is not considered as a purchase of the improved item, but as payment for services rendered, But can a man betroth a woman with services of value, rather than with a material object of value? To answer this question, the rabbis must figure out a whole new conceptual distinction having to do with the payment of wages. If you hire someone to do a job over a period of time and you agree to pay him at the end of the period, when do the wages legally become his—when he starts work or when he finishes? If the former, then in a sense the money is being “loaned” by the employee, who legally owns it, to the employer, who is retaining possession until the end of the agreed-upon period. And it is forbidden to betroth a woman with a loan. So the chain of legal reasoning goes on, each new answer raising a new question, sometimes from a very distant area of Jewish law. The rabbis’ ability to make connections between those diverse areas is one of the most exciting things about reading the Talmud.

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