Tough on crime or encouraging repentance? Baba Kamma 96

Before we see an amazing disagreement between Rabbi Meir and Rabbi Shimon and Rabbi Yehuda, let’s review some important laws about stolen objects. First of all, stealing is wrong. For a thief to repent, he must return the stolen object. If the stolen object no longer exists, he pays what the stolen object was worth at the time of the theft. Last of all, if the thief makes a change in the stolen object, the thief acquires the stolen object (שנוי קונה) and pays the victim the cost of the stolen object at the time of the theft. The Mishna back on daf TB Baba Kamma 93b provides several examples. Here is one example. “In the case of one who robs another of wood and fashions it into vessels, or one who robs another of wool and fashions it into garments, he pays the robbery victim according to the value of the goods at the time of the robbery, but he need not return the vessels or garments. He has acquired the stolen items because they had undergone a change.” (Sefaria.org translation)

What do you do when the stolen object appreciates in the thief’s domain? It has undergone a change. Does the thief get to keep the appreciation even though he has to return the original valuation of the stolen object?

Rabbi Meir says that both the principle and the appreciation are returned to the original owner as a fine. “…according to the opinion of Rabbi Meir, one acquires an item due to a change in the item, which is why the robber pays according to what its value had been at the time of the robbery. But here, in the case of the cow that gave birth or the ewe that was shorn, the payment of offspring or wool is a penalty with which he penalizes the robber.” (Sefaria.org translation)

Both Rabbi Shimon and Rabbi Yehuda agree that the appreciation belongs to the thief. “The Gemara continues its discussion of the baraita. Rabbi Yehuda says: A stolen item is returned as is. Rabbi Shimon says: The stolen item is viewed as though it had been monetarily appraised at the time of the robbery. The Gemara asks: What is the difference between them, since ostensibly they agree that the robber does not return the value of the enhancement to the robbery victim?” (Sefaria.org translation) Rav Pappa explains the practical difference between these two seemingly similar views. “Rabbi Shimon can be explained differently: Everyone agrees that the enhancement that is still upon the stolen item belongs to the robber, and here they disagree with regard to whether the robber can keep one-half, or one-third, or one-fourth of the value of the enhancement, and the remainder is kept by the owner of the animal. Rabbi Yehuda holds that the enhancement that is still upon the stolen item belongs entirely to the robber, and Rabbi Shimon holds that the robber takes one-half, or one-third, or one-fourth of the value of the enhancement. In other words, he is treated as a shepherd or rancher and receives the share of the enhancement that local custom dictates be paid to that type of laborer.”(Sefaria.org translation)

We understand that Rabbi Meir is tough on crime, but what is the underlying logic of Rabbi Shimon and Rabbi Yehuda’s position? Both these rabbis wanted to incentivize the thief to repent based upon the rabbinic takanat shavim (תקנת שבים). If the thief had to return as well his sweat equity which improved the object he stole, he would be less likely to repent at all. Daf TB Baba Kama 94b provides an example why this takana was instituted by the rabbis. “There was an incident with regard to one man who desired to repent after having been a thief for many years. His wife said to him: Empty one [reika], if you repent you will have to return all the stolen items to their rightful owners, and even the belt that you are wearing is not yours, and he refrained and did not repent.” (Sefaria.org translation)