Versions of Theft, All Prohibited

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by R. Gidon Rothstein

Once in a while, change is good. Parshat Noah has no mitzvot of its own, but the Torah attributes the Flood to hamas, a form of theft. Rambam has eight mitzvot related to taking money improperly, so just seeing those, with Sefer Ha-Hinuch, will take up the time we have this week. With apologies to Minhat Hinuch and Aruch Ha-Shulhan.

Paying Wages on Time

Let’s start with what might not seem theft at all. Rambam’s Aseh 200 records the Torah’s command to pay a hired laborer that day (Devarim 24;15); the Gemara explains that if the job was all day, the employer has the following night to pay, if it ends at night, the employer has the next day.

This is a matter of the employee’s expectation; Sefer Ha-Hinuch 588 tells us the employee can be hired for longer, paid more infrequently, depending on the agreement.

Rambam’s Prohibition 238 adds an important caveat, the violation occurs if the employer has the money, because Vayikra 19;13 speaks of allowing the employee’s wages to be left overnight with you. Hiring people without the money to pay is a problem, but not this problem.

The obligation encompasses all employees, regardless of nationality or religion, Rambam adds; the prohibition, however, covers only Jews, adding a layer of severity.

Stealing Secretly

The more classic financial misappropriation is theft, which the Torah divides into two forms. Prohibition 244 in Rambam’s list speaks of genevat mammon, taking money from someone else; the thief must repay the money, plus a fine of that value if s/he is caught by witnesses in court, a total of four or five times the item’s price if the thief stole a sheep or ox (this is all for movable property; we will get to “stealing” land in a second).

Rambam chooses to include a comment of Sifra, the Torah discusses theft more than necessary, to rule out stealing just to anger or upset the victim (meaning: the thief has no intention of keeping the item, takes it to cause the victim those painful emotions) nor may a Jew steal an item as a pretext to pay the fine and put some extra money in the victim’s hands (if s/he is poor but will not accept alms, e.g.).

[I threw in the aspect of witnesses and verdict for having to pay the double or four or five; it’s a general principle, modeh bi-knas patur, someone who admits a crime before verdict does not pay fines. It exemplifies how Torah law’s choice to minimize law means a just society will need more than Torah law. By Torah law, thieves can steal what they want, keep it if they’re not caught, admit it as soon as they are, and have no downside.]

That’s stealing.

Just Taking It

The next prohibition, 245, is against gezelah, translated as robbery. Rambam defines it as taking what is not ours coercively, an idea Baba Kamma 79b found in II Shemuel 23;21, where the verse proves Benayahu b. Yehoyada’s martial prowess with the story of his having been gozel a spear from an Egyptian and killing him with it.

Sefer Ha-Hinuch 229 adds be-pirsum, openly, I think intending us to understand the gazlan does not care who knows what s/he did. [In my experience, people speak of gezelah as armed robbery, except most armed robbers today do their best to hide their identities. I think that makes them ganavim, not gazlanim. Gangsters who walk into stores and take what they want are gazlanim.]

This prohibition (not the one on genevah) is paired with Obligation 194, to return the gezelah, the item taken by force, if it still exists. Sefer Ha-Hinuch Mitzvah 131 stresses the gazlan must return the item itself, cannot repay it and keep the item.

Sefer Ha-Hinuch teaches us irreversible changes count as the item no longer existing, a way the gazlan would keep it. Someone who stole wood and burned it, chopped it into smaller pieces, dug holes in it; stole wool and colored it or wove it into a piece of clothing, will not need to return the wood or wool, will pay its value, I believe because the original wood or wool no longer exists.

Easily reversible changes do not count. If the gazlan stole the parts to a chest of drawers and built it, the original item is still there, easily enough to require the gazlan to return it.

For reasons we do not have the space to discuss—Sefer Ha-Hinuch 130 also said there were many laws to the issue—the combination of ye’ush and shinui reshut also mean the item itself will not go back to the original owner. Ye’ush refers to where the owner has despaired of recovery, and shinui reshut means the thief has given/sold it to someone else. Rather than take it from whoever has it now, the thief pays the value.

(Sefer Ha-Hinuch Mitsvah 124 offers an interesting limitation on the immunity of the buyer. While we do not usually require a purchaser to give up the item, even if offered compensation, for takkanat ha-shuk, to allow markets to function, that will not be true if the buyer bought it from a known thief. There, the original owner has the right to give the purchaser whatever s/he paid, take the item, then pursue financial recovery from the thief.)

Paying the Value, and an Oath

If the item does not exist, the malfeasant pays the value; should s/he have falsely sworn s/he did not steal it, there is a fine of a quarter of its worth [the Torah and Gemara always say homesh, a fifth, but they calculate it based on the eventual total. We call that a quarter, because we focus on the amount in front of us; why the Torah and Gemara do so is worth pondering, but not here], plus a sacrifice to atone for the false oath.

The requirement to return the item makes gezelah lav ha-nitak le-aseh, a prohibition with an attached obligation to rectify it, and such prohibitions do not incur lashes. Were the item to be changed or destroyed, so there can no longer be a hashavah, a return, Rambam says is still a lav ha-nitan le-tashlumin, a prohibition with possibility of payment, so therefore no lashes.

[Seeing genevah and gezelah together raises questions neither Rambam nor Sefer Ha-Hinuch address; I raise two for your consideration: 1) Why does the Torah distinguish them? 2) Why is there only an aseh for gezelah, and a much smaller fine?]

Easing the Way to Repentance

Sefer Ha-Hinuch points out an unusual aspect of value in halachah, Jews do not treat less than a perutah as a meaningful amount of money, so the requirement to return stolen goods only comes into effect if they are worth more than a perutah at the time of the theft. Tradition assumed Jews forego lesser amounts.

Hazal added two other ways of smoothing the path to relinquishing a life of crime. Legally, the thief must bring the item to wherever the victim is, regardless of distance; Hazal allowed him to instead leave it with a local court, for them to hold it until the victim claims it.

And, if return of the stolen goods is onerous—the classic example is having built a beam of wood into a house—Hazal permitted paying the value rather than having to take apart the house to recover the beam.

Stealing Land

Yet another prohibition covers a type of theft” of land, 246, encroaching on the borders between one Jew’s ancestral land and another’s. Isn’t this an example of gezelah, taking by force what does not belong to a person? Rambam quotes Sifrei, this verse adds a prohibition (indicating severity, this one action violates two or more prohibitions).

Rambam adds it only applies in Israel; outside, this version of theft would be gezelah.

[I think it is gezelah because the other party knows who did it, yet cannot do anything about it. The Torah’s limiting it to Israel says to me this is about more than theft, it is also about muddying the waters around the apportionment of Israel done way back in the generation of Jews who arrived there. The Torah values maintaining that original setup, and this robber is both robbing the other and blurring where the ancestral portions were.

If I am right, it is more than “just” an additional prohibition, it adds to our understanding of this kind of stealing. A robber who moves the borders to gain a thousand dollars worth of land has done so in a way with more ramifications than some other way to steal the same amount of money. Not all cons are the same.]

Withholding Others’ Property, Denying Debts

A more subtle form of stealing comes when the perpetrator already has possession of someone else’s property and refuses to return it. In Prohibition 247, Rambam defines all three: genevah is taking secretly, with some sort of trick, gezelah is taking with force, coercion, and fighting. Oshek, our current concern, covers refusing to return what belongs to someone else, that came into our possession legally.

The prime example from Sifra is not paying a worker’s wages. I could have imagined including a false claim not to have an item entrusted by someone else, a pikdadon, but the Torah has a separate  prohibition, kihush, denial, Rambam’s 248. A more obvious form of kihush is a debt, where someone lent a Jew money, and the recipient denies it.

There, the loan does not physically exist, a reason to differentiate it from the previous prohibition. When we include in this the idea of denying a pikadon, an item left for watching, I think we are saying the denial is the more salient part of the transgression, where with a worker’s wages, the withholding is.

We could obviously go on, but I am stopping here, wanting most to notice the detail the Torah chose to devote to these issues. What could have been covered by one prohibition instead has six, with two conjoined obligations.

Not to Foster Theft

In Mitzvah 124, Sefer Ha-Hinuch raises the role of the secondary market. Baba Kamma 118b prohibited buying from a known thief, because it supports the crime, as does buying anything generally known to be stolen. The Gemara included buying wool, milk, or goats from shepherds (who, as a group, were known to take home pencils from the office), or wood or fruit from people paid to watch trees. In general, if the seller wants to keep the sale secret, Sefer Ha-Hinuch thinks the buyer should reconsider.

Chapter five of Avot opens with the question of why God used ten terms to create the world when one could have sufficed, and says it was to express God’s investment in the world, as it were, to increase the reward of the righteous who support the world’s continued functioning, and the punishment of evildoers, who damage it. We can say the same here, the Torah put in multiple mitzvot about property to increase reward and awareness of the care to take with others’ possessions.

Or, in more colloquial terms, if Eskimos/Inuit/Aleuts have multiple terms for snow, Jews have multiple mitzvot about property rights.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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