Bava Kamma 96

An experienced robber.

Over the last short while, we’ve explored the ins and outs of the rule that robbers have to return a stolen item or pay according to its value at the time of the robbery. Today, the Gemara puts a button on the conversation by telling a story:

There was a certain man who robbed another of a pair of oxen. He then went and plowed his field with them, sowed seeds with them and eventually returned them to their owner. The robbery victim came before Rav Nahman to claim payment from the robber. 

Rav Nahman said to the robbery victim and the robber: Go estimate the amount by which the value of the land was enhanced during the time that the pair of oxen was in the possession of the robber.

Instead of evaluating the impact of the labor on the value of the oxen, Rav Nahman orders the parties to evaluate how the oxen’s labor increased the value of the robber’s field. Given what we have been reading this is surprising — we would expect the robber to pay according to what the victim lost, not according to what the robber gained. Rava is surprised as well, and he proffers two challenges, starting with this one:

Did the oxen alone enhance the value of the land? Did the land not become enhanced in and of itself? Perhaps not all of the enhanced value of the land was due to the labor performed by the oxen. 

A logical challenge and Rav Nahman has a reply:

Did I say that they should estimate and give him all of the enhanced value? I said only half. 

While Rav Nahman asked the parties to assess the total value of the increase, he intended the robber to turn over only a portion of the increase — that which could be attributed to the work performed by the stolen oxen — and not the full amount.

Fair enough, but Rava has another objection:

Ultimately, it is a stolen item and is returned as it was at the time of the robbery, as we learned in a mishnah: “All robbers pay according to the value of the stolen item at the time of the robbery.” Why should the robber also pay the owner half the value of the enhancement?

The robber, argues Rava, has fulfilled his obligation by returning the oxen, so how can Rav Nahman charge him for even a portion of the increased value of the land? Here too, Rav Nahman has a reply, one that he delivers a bit more sternly:

Didn’t I tell you that when I am sitting in judgment, do not say anything to me?! As our friend Huna has said about me, that King Shapur and I are brothers with regard to monetary laws (i.e. just like the rulings of the great Persian king, my rulings should go unchallenged). This man is an experienced robber, and I wish to penalize him.

Rav Nahman’s response is threefold. He rebukes Rava for challenging him at all but in particular for the timing of his challenge. And while acknowledging that Rava is technically correct, he points to extenuating circumstances that justify his harsher penalty. 

The Talmud has been meticulous in examining a seemingly endless number of permutations of cases involving stolen property that has changed in essence or in value. All of these cases are rooted in the principle that a robber owes their victim the assessed value of an item at the time that it was stolen. Accordingly, the law does not support Rav Nahman’s decision to force the guilty party to turn over the increase in property value that is attributed to the work that the stolen oxen performed on the land.

By giving him the last word, however, the Gemara gives Rav Nahman a nod of approval. In doing so, it suggests that judges are not meant to be guided solely by the rules as they appear on the books, but to use their independent judgment to act in the interests of the society at large. While some might fault Rav Nahman for his judicial overreach, the Talmud showcases his decision, even though it falls outside established legal parameters, and applauds his effort to encourage a repeat offender to change his ways.

Read all of Bava Kamma 96 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 6th, 2024. If you are interested in receiving the newsletter, sign up here.

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