Bava Kamma 086

1:
Chapter 8 returns us to the issue of theft, an issue which was interrupted by the previous chapter which dealt with personal injuries.

2:
Our present chapter is concerned with how to calculate the amount of recompense that a thief is required to make when, during the period of time that elapses between the theft itself and the requirement to make repayment, the value of what was stolen has increased.

3:
Our present mishnah (and most of the subsequent mishnahs) refers to a robber rather than to a thief. However, since the halakhic issues are identical in both cases it makes not difference whether the theft was made openly (robbery) or with stealth (theft).

4:
David steals some wood from Sara's shed. By the time Sara discovers the theft the crafty David has already created from the loot a beautiful table. The value of the wood is estimated at 100 dinars; the table, however, could be sold for 150 dinars. Sara sues David and the court finds against David. David must now recompense Sara by paying the value of what he stole with an additional "fine" of 100%. Does David have to pay Sara 200 dinars or 300 dinars?

5:
Sam steals from Leah her prize ewe, ripe for shearing. By the time Leah discovers the theft wily Sam has sheared the animal's fleece, has prepared it, turned it into wool and made from it a fine winter cloak. The value of the ewe is estimated at 50 dinars; the cloak, however, could be sold for 150 dinars. Leah sues Sam and the court finds against him. Sam must now recompense Leah by paying the value of what he stole with an additional "fine" of 400%. (Remember a sheep must be repaid fourfold.) Does Sam have to pay Leah 200 dinars or 600 dinars?

6:
Our present mishnah presents what is, to us, a rather startling general rule: all repayments are to be calculated not at the present value of the article stolen but at its value at the time of the theft. In other words, any increment in the value of the article stolen is to the benefit of the thief!

7:
The reason for this strange ruling is explained as deriving from the fact that the thief has altered what was stolen so that it no longer is what it was. Rabbi Ovadya of Bertinoro in his commentary on our mishnah says:

8:
It seems to me that the reasoning is that the thief must make recompense for what he stole, not for any profit he makes from what he stole. (Remember, theft according to halakhic jurisprudence is not a crime but a tort. The thief is not punished for what he did but must make good what he stole – with an added 'fine' to dissuade him from doing it again.)

In BK 084 we learned how a person who shamed a woman publicly was required to recompense her with a payment of 400 dinars. Avraham Hasson writes:

The value of her shame is 400 dinars whereas the value of a woman's ketubbah is 200 dinars. Is the shame of a woman in the market place worth more than her financial security in the event of divorce?

I respond:

This is a complicated question, which I shall try to address as briefly as possible. Firstly, the woman's ketubbah is not only for her financial security in the case of divorce but also in the case of her husband pre-deceasing her.

Secondly, the value of the ketubbah was usually arrived at by negotiation between the groom (or his father) and the bride's father: it also included an extra payment from the groom's family and a dowery from the bride's family. The 200 dinars was the absolute minimum required for all women entering a first marriage. Thus the value of the ketubbah varied according to the financial status of the family from which she came and the one into which she was marrying.

Thirdly, there were other provisions in the ketubbah for her protection. These were not usually written because they were deemed so essential that they were almost natural rights, as it were, that would be enforced by the courts regardless of the wedding contract. These included the right of continued residence in her late husband's abode, the right to be sustained from his estate unless she remarried and so forth.

These last provisions did not apply, of course, in the case of divorce. But we must remember that divorce was considered to be a 'last resort' and most women would prefer to live in marital misery rather than in penurious celibacy. As far as the husband was concerned the total sum of the ketubbah was usually enough of a deterrent to prevent wanton divorce. Our sources have many examples of men (including sages!) who just could not afford to divorce their wives.

I hope this helps towards an answer to Avraham's question.