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Bava Kama, 100


QUESTION: The Mishnah teaches that when someone gives wool to a dyer to dye for him and the dyer uses an inferior dye, both Rebbi Yehudah and Rebbi Meir agree that the dyer is not Koneh the wool and therefore he must return the wool to its owner, and he receives in return the lesser of the Shevach (increase in value of the wool) or Yetzi'ah (his expenses).

The Gemara earlier (98b) teaches that when a craftsman works on an item, he acquires the item by causing it to appreciate in value. This implies that just like a Ganav can acquire a stolen item through a Shinuy (making a change in the item), so, too, when a craftsman changes an item -- causing it to appreciate in value -- he acquires the item, and he merely owes the owner an amount of money corresponding to the original value of the item. Consequently, when the craftsman returns the object to its original owner and receives his wages, it is viewed as a sale (see Background to Bava Kama 98:35).

Accordingly, every craftsman should be able to tell the owner of the item that he has decided to keep the object for himself and not "sell" it back to its owner!

The obvious answer would seem to be that the craftsman cannot refuse to return the object he worked on if he is being paid the full wages that were stipulated, since there is an implicit agreement between the owner and the craftsman that the craftsman will return the finished item upon receiving his wages.

However, this will not suffice to explain the Halachah of our Mishnah. Why must the craftsman return the wool to its owner when he dyes it with an inferior dye? He should be able to keep it for himself and pay for the value of the wool that was given to him (just like Rebbi Meir says in the last case of the Mishnah), since he is not being paid the full wages that were stipulated! (see TOSFOS RID 98b)


(a) The RASHBA explains that a craftsman has ownership of the Shevach, the amount that the item appreciated, only when the item becomes ruined before he returns it. The reason for this is because no craftsman wants to work on the item only to cause himself to pay the owner, as compensation, the amount that the object appreciated. We therefore assume an implicit stipulation that the craftsman will be considered the owner of the object in the event that it breaks after he starts to work on it but before he returns it to the owner. If the object did not break, the craftsman owns only an amount corresponding to the wages that he deserves for the work (since that was his implicit stipulation when he accepted the work, so that he should be able to hold onto the object in lieu of his wages).

According to the Rashba, the craftsman must return the wool to the owner in the case of our Mishnah, because he *is* receiving the wages he deserves for his labor. That is, when he dyed the wool in an inferior way, the craftsman owns only a part of the item that corresponds to the lesser value, the Shevach or the Yetzi'ah, because that is his deserved wage in this case. (See following Insight, 2:c.)

(b) The RA'AVAD writes that it is possible that the craftsman acquires the entire amount of appreciation that he caused, even if the item did not become ruined. This also seems to be the opinion of the TOSFOS RID.

Nevertheless, the Tosfos Rid writes that even though the craftsman owns part of the item, he is not able to be Koneh the entire item with a Shinuy, since he is not a Gazlan (and only a Gazlan is Koneh the entire object with a Shinuy). Therefore, he must return the original object to its owner along with all of the improvements that were made to it. Afterwards, in return for his labor he receives either the Shevach or the Yetzi'ah, as our Mishnah states.

The Tosfos Rid and Ra'avad also seem to be learning that the Kinyan of a craftsman is related to implicit agreements in the hiring of a craftsman, rather than a Kinyan b'Shinuy, like that of a thief.

(c) RABEINU YEHONASAN in the Shitah Mekubetzes implies that a craftsman acquires the item that he works on through making a Shinuy to it, just like a Gazlan acquires what he steals, through making a Shinuy to the item. Accordingly, the craftsman should be able to withhold the item in a case where the craftsman dyes it in an inferior way, as we asked!

Perhaps Rashi here is addressing this question. Rashi (DH Tzav'o Ka'ur, see also Nimukei Yosef) writes that when the craftsman dyes the wool in an inferior way, he is a Mazik b'Kavanah, an intentional Mazik. That is why Rebbi Meir agrees that he must return the wool to the owner. The RASHASH asks, why does Rashi have to give this explanation for why Rebbi Meir agrees that the craftsman cannot keep the wool in this case? Rashi himself writes later (DH v'Im ha'Shevach) that dyeing the wool in an inferior manner is not called a Shinuy, and *that* is the reason why the craftsman must return the wool to its owner!

Perhaps Rashi means to explain that even if the craftsman cannot be Koneh through Shinuy (the Shinuy being that he did not follow the instructions of the owner), he should be Koneh because of the Shevach Kli (for following the instructions of the owner)! Rashi answers that if he dyed it in an inferior manner, although he followed the words of the owner and it is not considered a Shinuy that makes him a Gazlan, nevertheless he did not follow the *intention* of the owner, and therefore he cannot acquire the item through Shevach Kli. Rather, he is a Mazik b'Kavanah, who is neither like a Gazlan nor like a craftsman.

OPINIONS: The Mishnah teaches that when the craftsman does not do what the owner of the item instructed him to do, in certain cases the ruling is that the owner can pay either the Shevach or the Yetzi'ah, whichever is less. How do we define the "Yetzi'ah" and how do we define the "Shevach?"
(a) RASHI and RABEINU YEHONASAN MI'LUNIL (in the Shitah Mekubetzes) explain, in the literal sense, that the Shevach refers to the amount that the item increased in value from the time that it was given to the craftsman. The Yetzi'ah means the amount of money that the craftsman had to put into the item in order to cause the Shevach, the increase in value.

(b) The RI in Tosfos and the ROSH offer a different explanation based on the Yerushalmi here. The Ri explains that the Yetzi'ah refers to the original wages that the owner promised to give to the craftsman for doing his job properly. The Shevach does not refer to the entire amount that the item increased in value, but rather we first determine how much of a profit the owner had intended to make by hiring the craftsman to do this job. For example, if the wool and dye were worth 10 Zuz together, and the craftsman charges 10 Zuz to dye it, and afterwards the finished product will be worth 25 Zuz, then the owner had intended to increase the value of his holdings by a net increase of 5 Zuz. The first 5 Zuz that the wool increases in value are therefore ignored because the craftsman accepted upon himself the responsibility to see to it that the wool would offer a five-Zuz profit for the owner. Whatever increase in value remains besides those 5 Zuz are referred to as the Shevach, and the owner now has the choice to give either that Shevach to the craftsman, or to give the original wages that were stipulated, whichever is less.

(c) TOSFOS alludes to the fact that RABEINU ELCHANAN interprets the Yerushalmi in a different manner. Rabeinu Elchanan's explanation is cited by the HAGAHOS ASHIRI and by the TOSFOS SHANTZ in the Shitah Mekubetzes. Rabeinu Elchanan explains that "Yetzi'ah" refers not to the amount that was originally promised to the craftsman, nor to the amount that the craftsman actually spent on dyeing the wool, but rather to the amount expended by the craftsman, including labor. That is, we measure the amount of time and effort that the craftsman put into dyeing the wool based on the market rate of hired labor at the time, and that is considered the Yetzi'ah. (This is also the opinion of TOSFOS RABEINU PERETZ.) If this amount (the Yetzi'ah) is less than the increase in value of the wool, then the owner has to give to the craftsman only the Shevach, the amount corresponding to the increase in value.

Rabeinu Elchanan agrees with the Ri who says that an amount corresponding to the intended profit of the owner is not taken into account when calculating the value of the Shevach.

However, Rabeinu Elchanan adds that if there is a large increase in the value of the wool, such that the increase is greater than the Yetzi'ah, then it might not suffice to give the craftsman the amount of money corresponding to the Yetzi'ah, which is the wages of a Sechir Yom, a hired laborer. The reason for this is because the craftsman acquires in the wool an amount corresponding to the effort that he put into it. Therefore, if the value of the wool increased *more* than that amount, then part of the increase can be attributed to *his* portion of the wool. For example, the wool (plus the intended profit of the owner, as the Ri discusses) is worth 10 Zuz, and the craftsman put in 5 Zuz worth of effort, and now it is worth 30 Zuz, making a total increase of 20 Zuz. Five Zuz of the increase belong to the craftsman. The other 15 Zuz can be divided into three parts, of which we say that the craftsman's portion, which is a third of the wool, increased one part, and the owners portion (two-thirds of the wool) increased two parts. Therefore, the owner cannot give the craftsman any less than 10 Zuz of the total (rather than simply the 5 Zuz of effort that the craftsman expended).

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