Siman 349

It has already been explained that there is no difference between a man and a woman regarding the payments for theft, and even though it is written "If a man shall steal," the Scripture equated a woman to a man for all punishments and for all laws in the Torah [Bava Kamma 15a]. And that which is written "man" is to exclude a deaf-mute, an imbecile, and a minor, for they are not legally competent and are exempt from payment, even when the minor grows up, the deaf-mute gains hearing, and the imbecile becomes sane. However, if the stolen object is intact, or if they exchanged the stolen object for something else or sold it and the money is intact, they return the principal to the owners. And if it is not possible to obtain the stolen object itself from the one who exchanged it or to whom they sold it, they return the money or the exchange.

But a woman is liable for payments like a man, only if she is a married woman she has nothing with which to pay, for what a woman acquires her husband acquires, unless she has properties where the husband does not consume the usufruct and they stipulated thus before the marriage that he shall not consume the usufruct nor the usufruct of the usufruct, and that if she dies he shall not inherit from her, as is written in Even HaEzer siman 92; or that another gave to her as a gift on the condition that her husband has no authority over them and that she shall pay the debt. But without this, the principal and the double payment remain a debt upon her until she is widowed or divorced and takes her ketubah and pays, and the victim of the theft takes now a judgment that such and such is owed to him. And it is obvious that if the principal or its replacement is extant, she pays the principal immediately. And in siman 424 it will be explained that a woman who has nikhei melog or tzon barzel, which is the dowry she brought in to him, or if the husband wrote for her a supplement to the Torah-mandated ketubah, there is a strategy to collect from her now: that she sell them to another based on the uncertainty that if she dies first her husband will inherit from her, and if he dies first the buyer will take them, and he buys them for a small amount, and she pays that amount now for the theft. But the ketubah she shall not sell in this manner for a reason that will be explained there. And there are those who disagree regarding nikhsei tzon barzel and the supplement to the ketubah, for the concern of the ketubah applies to them as well, as the primary concern is because she will certainly waive the ketubah to her husband, and we hold in siman 66 that one who sells a debt contract to his fellow and then waives it, it is waived, and this same concern applies to them as well [Shiltei HaGibborim, Perek HaChovel].

Also regarding a slave, the law is like a woman: he is liable for payments but has nothing with which to pay, and it remains a debt upon him until he is emancipated. If the principal or its substitute is extant, it is extracted from him now. If someone gave the slave a gift on the condition that his master has no authority over it and that he pay the principal and the double payment, he shall pay now. It has already been explained in siman 348 that it is proper for a beit din to strike minors and slaves for thefts, robberies, and damages so that they do not become accustomed to this; see there.

An incident occurred regarding the wife of Reuven who lent silver vessels and gold vessels to the wife of Shimon, and a rumor spread in the city that the items were stolen from the wife of Shimon. When the wife of Reuven demanded her items, the wife of Shimon said, "What can I do, for I have nothing with which to pay, as everything belongs to my husband." And the husband says, "I am not required to pay for what my wife did without my knowledge." The Rosh ruled that it is certainly so, that the husband is not required to pay. However, in this incident, they suspected in the city that the husband knows about the items and what was done with them, and perhaps there is some deception in this. Therefore, the husband shall swear that they are not in his possession now, and he does not know where they are, and that he did not misappropriate them—for if he misappropriated them more than the permission of the lender allows, he is liable even for accidents—and that he was not negligent in their being stolen. And she shall swear that they are not in her possession, but regarding that she was not negligent she shall not swear, for she is liable even for accidents. And they shall write a judgment against her that she owes such and such for when she becomes widowed or divorced. And his oaths are only heset, for he is not a bailee to be obligated in the oath of the bailees. And even though according to this we should not have made him swear on a claim of doubt, nevertheless, since there is a basis for the matter, we make him swear even on a claim of doubt. And it further implies from the responsum of the Rosh that even if they did not suspect the husband in the city that he knows about the items, nevertheless they would make him swear; for since he admitted that the items came into his possession and now he does not know where they are and it is not in his power to clarify the theft, there is reason to suspect him of deception, and we make him swear heset. For the Rosh in his responsum did not mention that they suspect him in the city, and it likewise implies from the words of our teacher, the Beit Yosef, in section 2, who did not mention the suspicion.

And know that our teacher, the Beit Yosef, did not write that he should swear except that they are not in his possession and that he did not misappropriately use them, but he did not write an oath that he did not neglect, for the husband is not a shomer that he should be liable for negligence. And there is one who wishes to say that he is like a shomer even though he did not accept the guardianship upon himself, and there is no reason at all to obligate him as a shomer. And it appears to me that the Rosh was precise in his words when he wrote that he should swear that he did not neglect in that they were stolen, and his intention was not guardianship against negligence through which they were stolen, for he is certainly exempt in such a case, but rather his intention was that perhaps he neglected intentionally so that they would be stolen in order to take a portion from the thief, and the like.