1) AN ENACTMENT MADE TO ENCOURAGE TESHUVAH, ACCORDING TO REBBI SHIMON
QUESTION: In the Beraisa (95a), Rebbi Yehudah rules that one who steals a sheep and then shears its wool, or steals a cow which then gives birth, must return only the animal in its present state, without the wool or the calf (RASHI DH Gezeilah). Although the thief does not pay for the increase in value of the wool or embryo from the time of the theft, he must pay for the value of the wool or embryo at the time of the theft. After all, he certainly must pay the full value of the item that he stole.

The Beraisa quotes Rebbi Shimon who rules that the amount which the thief must pay back is assessed according to the value of the animal at the time of the theft. RASHI (DH Ro'in) explains that Beis Din estimates the animal's value at the time of the theft and the thief pays according to the estimated value.

The Gemara asks the obvious question. What is the difference between the opinions of Rebbi Shimon and Rebbi Yehudah? Rav Zevid explains that Rebbi Yehudah and Rebbi Shimon disagree about the supplementary object (such as the wool) which was on the stolen animal when the thief was caught. Rebbi Yehudah maintains that it must be returned to the owner, and Rebbi Shimon maintains that it belongs to the thief.

Rav Papa asserts that Rebbi Yehudah and Rebbi Shimon agree that the supplementary object still on the animal belongs to the thief. However, Rebbi Yehudah maintains that it belongs entirely to the thief, and Rebbi Shimon maintains that the thief receives a half, third, or quarter of the profits.

RASHI (DH l'Mechtzah) writes that according to Rebbi Shimon, the percentage which the thief receives from the profits is assessed according to how much is given, according to the local custom, to a farmer who tends animals for the same length of time that the animal was with the thief. The ROSH explains that the actual profits on the animal do not belong to the thief according to Rebbi Shimon. These objects must be returned to the owner. However, the owner must pay the thief for his labor, which means that the thief indeed has a share in the profits.

Rebbi Yehudah rules that the thief keeps all the profits because of Takanas ha'Shavim, the enactment the Rabanan made to encourage thieves to repent and return the property they stole. What, though, is the reasoning of Rebbi Shimon?

ANSWER: The CHAZON ISH (Bava Kama 17:14) explains that according to Rebbi Shimon, there are grounds not to apply the Takanas ha'Shavim in one particular type of case. If the owner usually does not tend his animals himself but rather hands them over to a shepherd to tend, the thief deserves to receive a half, third, or quarter based on the normal fee charged by a shepherd. The thief is considered like one who enters his friend's field and plants there without permission. Such a person is entitled to receive payment for his efforts (see Bava Metzia 101a-101b, where the Gemara discusses how much he receives, and when he does not receive payment). In this case, Rebbi Yehudah maintains that the thief receives all of the profits because of Takanas ha'Shavim, and Rebbi Shimon maintains that no Takanah was made in this case.

However, if the owner of the stolen animal usually tends his animals himself, one who tends his animals without permission is not entitled to receive any payment since he did not give the owner any benefit. (See REMA CM 375:4 and Chazon Ish 17:13.) Since Rebbi Shimon says that the thief receives a percentage in all cases, it is clear that Rebbi Shimon agrees that there is a Takanas ha'Shavim that the thief does not have to give up all of the profits on the animal. (D. Bloom)