Q&A: Acquiring Through Change in the Case of a Robber
Acquiring Through Change in the Case of a Robber
Question
With God's help,
Hello Rabbi,
In the laws of robbery, there is the well-known rule that a robber acquires the object through a physical change, so that if someone stole an item and made a change to it, the item becomes his and he is no longer obligated to return “the robbery that he robbed.”
I have to say that intuitively I really do not understand this rule. Take, for example, a person who has an expensive silver goblet that he inherited from his ancestors, and it has great sentimental value for him. Then a robber comes and steals it, makes a small change to it, and when he is caught he is no longer obligated to return the goblet itself, but only its monetary value. Of course the victim sees the goblet and is horrified that it is not being returned to him. Why not at least let the victim choose whether he wants the object itself or its value?
Likewise, there is what seems to me to be an almost absurd result that follows from this law. In chapter 9, mishnah 1 in Bava Kamma:
“If he robbed a pregnant cow and it gave birth, or a ewe laden with wool and he sheared it, he pays the value of a cow ready to give birth, and the value of a ewe ready to be shorn.” In Kehati (I did not look inside) it says, based on the medieval authorities there, that he must return the cow itself to the victim, since giving birth is not considered a physical change; but he acquires the calf for himself, because he acquired it through the change of birth, and he must add to the victim what it had been worth before the birth. And clearly the value of a cow about to give birth is less than the calf itself, so it comes out that the victim loses and the robber profits?!
As I said, it is very hard for me intuitively to understand this law, and I would be glad if the Rabbi could reconcile it with reason.
Answer
I’ll start from the end. If he pays him the value of a pregnant cow, the victim can now buy a pregnant cow and return to his original situation. Think about it: why is a pregnant cow worth less than a cow plus a fetus? Because a pregnant cow may die in childbirth, or the fetus may die in childbirth, or the birth requires work from the owner. So when he robs a pregnant cow, he really did rob something worth less, and he has to restore the previous state as it was, not give a cow plus a fetus.
As for the main question, you could ask the same thing about the whole law of robbery acquisitions in general. The Torah grants the object to the robber for various reasons, for example so that he will be liable even for unavoidable accidents. Why not make him liable for unavoidable accidents without giving him ownership? Because Jewish law works through fixed legal patterns, and liability for unavoidable accidents requires ownership.
By the way, more generally, the laws of the Torah have additional goals beyond those of ordinary legal systems, whose purpose is justice, fairness, and social order. This has already been noted by the Maharal and in the Derashot HaRan. Therefore, the fact that something seems just does not mean that this is how Jewish law must be. For example, returning a lost object after the owner has given up hope is just, and yet strictly speaking one is not obligated to do so. At the same time, the king’s law would operate in that way and fill the moral and social gaps that Jewish law creates. When there is a king, he can certainly rule that if the silver goblet still exists, the victim can choose it instead of the money.
See about this here:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%93%D7%99%D7%A0%D7%99-%D7%94%D7%A7%D7%A0%D7%99%D7%99%D7%9F-%D7%91%D7%94%D7%9C%D7%9B%D7%94-%D7%95%D7%91%D7%9E%D7%A9%D7%A4%D7%98/
You can also listen to recordings of a series of classes I gave in Petah Tikva over the past few weeks on the subject of migo and legal reasoning:
https://drive.google.com/drive/folders/0BwJAdMjYRm7IN2pGeGNFRGctNDQ
There I expand on this topic.
Discussion on Answer
On the contrary: that is why medieval and later authorities wrote that even a borrower has ownership. And regarding a renter, the Talmud says that rental is like a sale for its term, and as is known, the medieval authorities disputed whether he has ownership or does not have ownership. But regarding a borrower, some wrote that he has ownership even according to the views that say a renter does not—because of his liability for unavoidable accidents.
It is true, however, that acquisition in order to incur liability for unavoidable accidents is stated regarding a guardian who misappropriates the deposit, and it is not clear that this also applies to a robber. But there are medieval authorities from whom it sounds like this is the essence of robbery acquisitions, and that is why they wrote that even a borrower is an owner.
The question of what exactly the change accomplishes can be explained in several ways. For example, once the object has changed, if the robber returns it he does not fulfill his obligation of restitution, because he has to return it in the same form as he robbed it. Therefore the Torah obligates him to return money. There is an attempt in the Talmud to explain this through the enactment for penitents—when you have done something with the stolen item, they do not require you to return it. But it seems that this is rejected.
By the way, when the change is small, according to Maimonides the victim really can choose whether he wants the object or money. But with a major change, it is a different object, and so now it is no longer the object that belonged to the victim.
See several possibilities, for example, here:
https://www.ypt.co.il/beit-hamidrash/view.asp?id=4644
As for the additional purposes, I usually do not understand them, but it is clear to me that they exist precisely because of questions like yours. See the sources I referred you to.
More power to you.
Nice to see that your hand is abundantly skilled in pilpul directed toward practical Jewish law as well..
With the blessing: “May He magnify and glorify the Torah of truth!”
Yosef, about that our rabbis said (there, there): there are compliments that come close to an insult. 🙂
This is what I spend most of my days doing. Contrary to what might be implied by my better-known books, which deal with philosophy—that’s the readers’ fault; I wrote others too—in many other articles and books there is engagement with topics of Talmudic analysis and Jewish law. And of course in my daily classes. On my principled view of Talmudic analysis as opposed to public commentary, see the note and discussion in the talkbacks on the previous post about “one who renders himself wicked,” and afterward witnesses came.
Thanks for the quick response..
I didn’t understand why liability for unavoidable accidents requires ownership. After all, a borrower is liable for unavoidable accidents even though he is not the owner of the borrowed object. More generally, a robber is defined as the owner of the object only after he made a change to it and not beforehand, and yet he is liable for unavoidable accidents even before he acquired it through a physical change.
I’d be glad if you could elaborate on, or refer me to, the point you raised about the additional purposes of the Torah’s laws.