Siman 348

**[The prohibition of theft, from what point one becomes liable, and the laws of double payment; containing 17 sections]: (These laws apply in places where our brethren the children of Israel conduct themselves in matters of monetary law and capital law according to the law of the Torah; not so in our lands where the fundamental law applies: the law of the kingdom is the law]** It is forbidden to steal even the slightest amount by Torah law. And even though for less than the value of a perutah one does not transgress the negative commandment of "thou shalt not steal," as it is not considered monetary value, nevertheless it is forbidden by the Torah, for a partial measure is forbidden by the Torah as with all prohibitions. Furthermore, even less than the value of a perutah is robbery, except that an Israelite waives his right to less than the value of a perutah [Sanhedrin 57a], but regarding a gentile, one transgresses a negative commandment even for less than the value of a perutah [ibid. 59a, and see Lechem Mishneh, chapter 1 of Gezeilah]:

And anyone who steals even only the value of a perutah transgresses the negative commandment of "do not steal" and is obligated to pay. One does not receive lashes for this negative commandment because it is a negative commandment linked to a positive commandment of restitution, and one does not receive lashes for a negative commandment linked to a positive commandment. There is no distinction in the prohibition of stealing whether one steals from an Israelite or whether one steals from a gentile, or from consecrated property or from charity, and whether one steals from an adult or from a minor. Regarding the error of the ancient, oppressive star-worshippers, such as misleading him in calculation or evading his loan, there was no prohibition in the matter provided that it would not become known to him so that there should not be a desecration of the Name. And some say that it is forbidden to mislead him, and only if he erred on his own is it permitted, such as if he made a calculation and erred, the Israelite should say to him: "See that I am relying on your calculation." And in a case of desecration of the Name, it is forbidden by the Torah. The great ones wrote that they saw with their own eyes that those people who profited from their errors did not succeed, and their assets went to ruin and they did not leave a blessing behind them. And many who sanctified the Name of Heaven and returned errors in significant matters grew, became wealthy, succeeded, and left their abundance to their children [Sefer Chasidim and Be'er HaGolah]. Behold, even deception of the mind was forbidden by the sages, as is written in siman 228. And in this time, in all these countries, any misleading or trickery is forbidden by the Torah, and there is no distinction between an Israelite and a non-Israelite. And there is one who wishes to say that there is no obligation of return regarding a gentile, but it does not appear so from the poskim [and see what I wrote in siman 340].

It is forbidden to steal even by way of a joke, and even on the condition to return it, and even if one wants to benefit him but knows that he will not accept and steals from him in order to pay him double, it is forbidden. And all the more so, one who steals in order to distress him for a time and return it to him afterwards, for it is forbidden so that he does not habituate himself to this. And regarding small children who are accustomed to stealing, the father is obligated to discipline them and strike them so that they do not habituate themselves to this. And similarly, it is forbidden to take even one's own from the thief when he takes them by way of stealing so that he does not appear as a thief; rather, he takes them in public, unless he cannot rescue them in any other manner. And in siman 4 it was explained how a person may take the law into his own hands. And in all these that were explained, he is not liable for accidents, but for theft and loss he is liable, for who will guard them? [See Ketzot HaChoshen]:

Who is a thief? One who takes a person's money in secret and the owners do not know; and even if they know of this, since the thief hides himself so that they will not see him, he is called a thief and not a robber. And so wrote the Rambam in the first chapter of Laws of Theft, that an armed bandit who stole is not a robber but a thief, even though the owners know at the time he stole, but they are afraid to go out because he is armed. However, if he took openly and publicly in the presence of the owners, this is not a thief but a robber. And the practical difference is that the thief pays double, and for slaughtering and selling he pays four and five, whereas the robber only pays the principal. And so our Sages, of blessed memory, said [Bava Kamma 79b]: Why was the Torah more stringent with a thief than with a robber? Because this one equated the honor of the servant to the honor of his Master, and this one did not equate them. And regarding them it is said: "Woe unto them that seek deep to hide their counsel from the Lord, and their works are in the dark." [And before the Ra'avad and the Maggid Mishneh there was a different version in the Rambam, see there].

From when does the thief acquire the stolen object to be liable for it? From the moment he performs meshikhah or lifts it. Lifting acquires in any location, even in the domain of the owners or in a public domain. However, meshikhah only acquires when he pulls it into his own domain, or to a side alley, or to a courtyard belonging to both of them, as has been explained in siman 197. Therefore, if he pulled it outside the domain of the owners to a side alley, or to his own domain, or to a domain of both of them, he acquires it immediately. But as long as it is in the domain of the owners or in a public domain, he is not liable until he lifts it. If he brought it into his domain, even to his roof, his courtyard, or his enclosure, if it is secured there, he is liable even though he did not perform meshikhah or lift it. And this requirement for it to be secured applies when he did not bring it in himself; but if he brought it in himself, he acquires it even if it is not secured, since he is standing beside it, as has been explained in siman 268. And even though his agent is also effective when standing beside it, nevertheless regarding theft it is not effective, for there is no agent for a sinful act, as will be explained. From that which the Rambam wrote in chapter 3 of Laws of Theft, and as will be explained in siman 351, it is implied that he holds that regarding the liability for accidents, one acquires through meshikhah even into a public domain. There are others of our teachers who hold accordingly [Tosafot Ketubot 31a and Bava Metzia 99a]. If it entered his domain on its own and he intended to steal it, he does not become a thief through thought alone until he performs an action, such as locking before it; but without this, no, even though regarding a lost object one acquires in such a case [Ktzot HaChoshen].

And what does the thief pay? Double, as it is written: "If the theft be certainly found in his hand... he shall pay double." And the payment of double applies to everything. And if he stole an ox or a sheep and slaughtered it or sold it, he pays for the sheep four sheep or their value, and for the ox five, as it is written: "If a man shall steal an ox or a sheep, and slaughter it or sell it, five oxen shall he pay for the ox, and four sheep for the sheep." And he is not liable for four and five for any living creature except for an ox and a sheep alone, since the Torah wrote "ox and sheep" two times, we learn from this: an ox and a sheep, yes; other things, no [Bava Kamma 67b, see there]. And he pays double for everything, as it is written: "For every matter of trespass... he shall pay double to his fellow."

The Rambam wrote in chapter 1: Both a man and a woman who stole are obligated to pay double payment and fourfold or fivefold payment. If she was a married woman who has nothing with which to pay, the double payment remains a debt upon her until she is divorced or her husband dies, and the beit din collects from her. A minor who stole is exempt from the double payment, and the stolen object is returned from him; if it was lost, he is not obligated to pay even the principal, even after he reaches adulthood. Thus far his words, for the action of a minor is of no consequence. He further wrote: A slave who stole is exempt from the double payment and his owners are exempt, for a person is not liable for the damages of his slaves even though they are his property, because they possess intellect and he cannot guard them, for if his master angers him, he may go and set fire to a stack of grain worth a thousand dinars, and similarly regarding other damages. If the slave was manumitted, he is obligated to pay the double payment. Thus far his words. And also when he damaged inadvertently, the master is exempt for the reason that will be explained in siman 389, section 5; see there.

He further wrote that it is proper for the beit din to strike minors according to their strength for theft so that they do not become accustomed to it, and likewise if they caused other damages. And likewise, they strike slaves who stole or caused damage with a great blow so that they do not become accustomed to causing damage. Thus far his words. And even though double payment is not practiced now, as we do not adjudicate laws of fines in this time as was written in siman 1, nevertheless there is a practical difference even in this time regarding seizure, as was written there. Therefore, the Tur wrote them. Furthermore, one who is concerned for his soul will fulfill all the fines that the Torah and our Sages, of blessed memory, penalized, for it is true that the beit din does not have the power to collect them, but by the laws of Heaven he is liable, as was written there.

The thief is not liable for the double payment or the fourfold and fivefold payments except based on the testimony of witnesses; for if witnesses came and testified that he stole, he pays the double payment, and if they came and testified that he stole an ox or a sheep and slaughtered or sold it, he pays the fourfold and fivefold payments. Even if two testified regarding the theft of the sheep and two others testified regarding its sale and slaughter, we join the witnesses to obligate him in the fourfold and fivefold payments, and this is not considered "half a matter," as was written in siman 30. However, a thief who confessed on his own that he stole is exempt from the double payment, and likewise if he confessed that he stole and slaughtered and sold, he is exempt from the fourfold and fivefold payments and only pays the principal, for one who confesses to a fine is exempt, as it is written regarding the double payment, "whom the judges shall condemn," and not one who condemns himself. And even if he confesses to a fine and afterwards witnesses came, he is exempt. This is specifically when he obligated himself in the principal through his confession, such as when he confessed that he stole and slaughtered or sold, whereby it is found that he obligated himself in the principal. But if he said, "I did not steal," and witnesses came that he stole, and he confessed that he slaughtered and sold, and afterwards witnesses came that he slaughtered and sold, he is liable for the fourfold and fivefold payments, for behold, he did not obligate himself in anything through his confession. For we do not say "one who confesses to a fine and witnesses came is exempt" except where there is principal and a fine, such that he obligated himself in money through his confession and intends to return the money, for if not so, this is nothing but mere deception [see Rashi, Bava Kamma 75a, s.v. "she-harei," and the Rambam, chapter 9 of Hilkhot Shevuot, halakha 4, and Mishneh LaMelekh, chapter 3 of Hilkhot Gneivah, halakha 8, and Yam Shel Shlomo, Perek Merubeh, siman 26, and Noda BiYehudah, Second Edition, Even HaEzer, siman 23; and according to what I have written, it is well-settled, and observe closely].

One who admits to a fine is not exempt unless he admitted before a semukhim beit din and in the place where the beit din sits, for we exclude this from "whom the judges (Elohim) shall condemn," and this refers to semukhim. And likewise, when they are not in the place where the judges sit, the status of a beit din is not upon them. Therefore, nowadays no admission is effective to be exempt from a fine [Tur]. And see what I wrote in siman 1, and furthermore the laws of double payment will be explained in siman 350, 351, and 352 with the help of Heaven.

And these payments, whether the principal, or the double payment, or the fourfold and fivefold payments—if he possesses movable property, they are collected from them. And even if he has coins, he cannot compel him to give him coins specifically. And if he has no movable property, only lands, they are collected from his superior quality land like damages, as it is written regarding them: "the best of his field and the best of his vineyard he shall pay." And all movable property is considered "best" because he can sell them elsewhere. And we have already explained in siman 291, section 17, that there are those who say that if he has coins or land, he cannot pay with movable property; see there. And if he has nothing with which to pay, by Torah law they sell him as a slave, as it is written: "and he shall be sold for his theft." And he is sold only for the principal, as we derive: "for his theft," and not for his double payment. And he is not sold for the theft of consecrated property or a gentile [the Rambam], rather it remains a debt upon him until he becomes wealthy [ibid. chapter 3]. And the reason, it seems to me, is because we exclude: "for his theft," and not for his double payment, and behold, regarding consecrated property and a gentile there is no double payment [and in the Gemara I did not find this law]. And a woman is not sold for her theft, and this matter is from the oral tradition: "for his theft," and not for her theft [end of chapter 3 of Sotah]. And the law of a Hebrew slave applies only when the Jubilee applies, and he goes free in the Jubilee. And in this time, this law does not exist, and it remains a debt upon him; and when he profits or inherits, he shall pay even after a time. And when he is concerned for his soul, he shall pay also the double payment and the fourfold and fivefold payments as I have written. And regarding if it increased in value or decreased in value, or if it improved or was damaged, how he shall pay will be explained with the help of Heaven in siman 354.

Reuven who saw how Shimon entered the house of Levi and stole items, and the items came into the hand of Reuven: if Reuven knows with certainty that he stole them, he is obligated to return them to Levi. And if he returned them to the thief, he is liable to pay Levi, for it is no less than a guardian of a lost object who is obligated to return it to the owners. And if Reuven lost them, Levi collects from whomever he wishes, according to the law of a stolen object where the owners have not despaired and another came and consumed it: if he wishes he collects from this one, and if he wishes he collects from that one, as written in siman 361. And this is specifically when it is clear to Reuven that Shimon stole them; but if it is a doubt in his hand, such as if Shimon said to him that it is owed to him from Levi even though he took them like a thief and in secret, nevertheless, if he returned them to Shimon, Levi cannot extract them from Reuven by law, but rather he shall stand in judgment with Shimon. For since according to the words of Shimon he has a claim against Levi, and if Reuven were to return them to Levi, Shimon would be constantly hostile toward him and would seize from Reuven's property against this, Reuven is not obligated to save Levi with his own money. And nevertheless, if it is within the power of Reuven to compel Shimon through this to stand in judgment with Levi, he is obligated to do so; and if he did not do so, he is liable by the laws of Heaven, for it is no less than causation of damages [it appears to me].

And specifically when he did not assist in the theft with assistance that has substance, as in the case that occurred with Reuven who sued Shimon, claiming that he entered his room, stole his books, and removed them from his domain. Shimon responded: It is true that I removed them, but this is how the incident occurred: your daughter-in-law, who is my relative, requested that I assist her in removing them because she could not carry them alone, and I did not know whose books they were, hers or yours; furthermore, I did not perform the lifting, rather she lifted each book and gave them to me. The Rosh, of blessed memory, ruled that Reuven may collect from whomever he wishes. And that which he said, that he did not know whose they were, there is no substance to his claim, for there is a presumption that everything found in a person's house is his, and it is as if he knew they belonged to Reuven. And even though she performed the kinyan of lifting, nevertheless, she was unable to remove them by herself, and they are considered as if both of them stole them. Therefore, Reuven may collect either from his daughter-in-law, since the books are currently in her possession, or from Shimon. And specifically when she could not remove them alone; but if it was within her power to remove them alone and he assisted her in removing them, even though he committed a prohibition by assisting the hands of transgressors, nevertheless, he is not liable to pay when the theft is not currently in his possession, for an assistant has no substance when the first party is able to act alone, and he did not intend to steal them—unless the theft is in his possession, for then he is obligated to return it to the owners, and if he did not do so, the owners collect from him when they wish, as I wrote in section 12. But if he also intended to steal and was a partner in the theft, he is liable even in such a case, for partners who stole are both liable. And see what I wrote in siman 352, section 13 [and so it appears from the wording of the Responsa of the Rosh in the Tur; and see Chatam Sofer siman 133].

One of the great authorities ruled that in the case of two who stole, one may claim the entire theft from one of them, for they have become responsible and guarantors for one another. And even if one of them fled, he may collect the entire theft from the second, for it is no worse than two who borrowed, as in siman 77. And even according to that opinion which will be explained at the end of siman 410 regarding two who caused damage, that one does not collect the entire damage from one, damages are different, for they did not act for their own benefit but rather caused damage to others, which is not the case regarding theft. And such is the primary ruling in law, not like the one who disagrees in this.

And so too, if the thief hid the stolen object and was forced to leave the city because he was unable to smuggle the stolen object out of the city himself, and he later sent a certain man to bring him the stolen object, the agent is liable to pay, for he is the primary thief since he knew it was stolen. So wrote our teacher, the Rema. And from this we have learned, and also from what he wrote in section 12, that those people who regularly receive stolen goods from the thief, their law is like the thief himself and the owners may collect from them, and their punishment is greater than can be borne, and they are the cause of the thefts, for "it is not the mouse that steals, but the hole that steals." And see what I wrote at the beginning of siman 358. And there is no difference between the theft of an Israelite and the theft of a gentile. And even if the thief had some claim against the owners, it is forbidden to receive the stolen object from him, and it is considered as if he stole it [Netivot HaMishpat].

One who sends his fellow to steal, the sender is not liable, for there is no agent for a sinful act. Similarly, one who shows his fellow a place to steal, such as if he showed him a breach, is also exempt for this same reason. And even in a case where the sender would be liable according to the manners explained in siman 182, he is exempt for showing a place to steal; for specifically when he sends him is he liable, but showing a place is nothing more than indirect causation of damages. It is not similar to the one who shows in siman 388 who is liable by the laws of garmi, for there the damage is certain, but here perhaps he will not steal [Shach].

Our teacher, the Rema, wrote: However, if the agent is not subject to obligation, some say the sender is liable. Thus far his words. From the source of the law it is explained that his intention is when the agent did not know it was stolen, and this is called "not subject to obligation," for since he does not know it is stolen, it is not relevant to say "the words of the Master and the words of the student—whose words should one hear?" We have already explained this in siman 182, section 10. And some say that the sender is never liable even when the agent does not know, and only in the case of a courtyard is the sender liable; even though it was included by way of agency, nevertheless, since it was placed there against his will, he is liable. We have already explained there that many disagree with this. And so wrote the Mordechai [Bava Metzia 81] that if Reuven said to Shimon, "Take a bull for me from the house of Levi, for the bull is mine," and it was found afterward that it was not his, and that he intended to steal it, Reuven is liable for all responsibility since Shimon did not know it was stolen. This is the primary ruling. And a woman who sold items and the husband says she stole them from him was explained in Even HaEzer siman 86.