דף צ"ה
The גמרא qualifies רבי's enactment for a victim of theft to refuse payment
On דף צ"ד ע"ב the גמרא mentioned the תקנה enacted in the days of רבי for the victims to refuse payment from thieves and those lending with interest to encourage them to repent. The גמרא qualifies this תקנה to where the stolen object is no longer extant. Where it is extant the thief has to return it. The exception to this law is a beam built into a building since it would require demolishing the building. However he must pay the value of the beam to the victim.
The גמרא quotes a ברייתא that discusses three opinions concerning one who steal as ewe and shears it or one who steals a pregnant cow and it gives birth
1. רבי מאיר – He pays the victim all appreciation, shearings and the offspring. The גמרא suggests two possible interpretations. Either he holds a thief does not acquire by way of a change in the object or the חכמים imposed a fine to prevent him from profiting. רבי מאיר holds that in the case where a dyer dyes wool the wrong color he is a kind of robber who only pays the value of the wool unlike a thief who pays for the appreciation. The גמרא concludes the thief acquires the appreciation and returns it as a קנס.
2. An alternative conclusion from the fact that he returns the value of the wool and not the appreciation is that the חכמים did not fine the thief in the case of inadvertent theft but there is no question where the theft was intentional.
רבי יהודה אומר גזלה חוזרת בעיניה.
רבי שמעון אומר רואין אותה כאילו היא שומא אצלו בכסף
According to רבי יהודה the stolen animal is returned as is. The thief keeps the rest. According to רבי שמעון, we appraise its cash value. There are two opinions in the גמרא to explain this argument.
1. רב זביד – The argument concerns a case where the improvements are still on the animal. רבי
יהודה when he says that the animal is "returned as is" means that if the animal after being stolen grew wool or became pregnant, the thief must return even the improvement since it is still on the animal it is not considered a שינוי. רבי שמעון refers to the cash value at the time of theft. Any change even those still attached to the animal are considered a שינוי that the thief acquires.
2. רב פפא – When רבי יהודה says "return as is he means at the time of the theft. Anything new even attached is his. רבי שמעון holds that a cash appraisal means that the thief gets paid only for caring for the animals, shearing and birthing them until he returns it for a fee paid in that locale. It makes no difference whether it is attached to the animal or not. שמואל explains that according to רבי שמעון the compensation to the thief can be cash. It does not have to be a percentage of wool or meat.
