Siman 350

A thief who slaughtered or sold, whether before ye’ush or after ye’ush, is liable for four and five. And even though a sale that occurs before ye’ush is not effective, for the purchaser has not acquired it through this, as I wrote in siman 353, nevertheless, since it is written "and he slaughtered it or sold it," and regarding slaughtering there is no distinction, for he acquires it through shinui, so too there is no distinction regarding sale, even though his actions were not effective [Bava Kamma 68b].

A thief stole an ox belonging to two partners and slaughtered it or sold it, and he confessed to one of them, such that he is exempt from the fourfold and fivefold payment as written in siman 348, and to the second he denied, and afterwards witnesses came that he slaughtered or sold it, he pays to the second whom he denied five halves of cattle, for it is logical to pay according to what he stole and became liable for [Tosafot Bava Metzia 96a]. And even though a confession is only valid in a beit din, and automatically when he confessed to one that he stole and slaughtered it, he has confessed regarding the entire ox, nevertheless, since this one sued him in this beit din and the second sued him in another beit din and he denied and confessed, he is liable for his portion [Bach], for we must only follow the beit din that adjudicates the law. And the first beit din adjudicated regarding the portion of the one and exempted him because of his confession, and if the second had also sued him afterwards in this same beit din, he would certainly also be exempt from him, for in this beit din he cannot deny; but since he sued him in another beit din that does not know of his confession, and he denied and witnesses came, he is liable for his portion [Ketzot HaChoshen].

Just as the Torah obligated in the case of a sale, so too it obligated in the case of a gift, for since he removed it from his domain and delivered it to another, he is liable. Therefore, our sages, of blessed memory, said [Bava Kamma 78b]: If he stole and gave it to another, or if he paid a debt with it, or exchanged it for another object, or sold it on credit, or sent it as gifts to his father-in-law's house, and even if he paid with it for a mitzvah, he is liable. And if he sold it to someone so that it would not be acquired by him until after thirty days, and within the thirty days the owners identified it and took the stolen object, he pays only double, for the sale has not yet been established; and even if he said "from now and after thirty days," it is of no avail [it appears to me]. And so too, if he only sold it for thirty days for work, this is not a sale. And so too, if he reserved for himself even one part in a hundred of it, or if he sold it except for a hand or a foot, or if he reserved any part that is permitted with it through shechitah, he is exempt from four and five, for we require that he sell all of it. But if he reserved for himself its horn or its fleece, this is not a reservation and he is liable. And according to the opinion of the Rosh, even this is a reservation. But when it was lacking in its essence, such as if it was lame or blind or a tereifah, he is liable, for what he stole, he sold.

A partner who stole from his fellow and slaughtered or sold is exempt from the fourfold and fivefold payments, for we require that he slaughter it or sell it in its entirety and not half of it, and behold, half of it is his. Therefore, a son who stole an ox from his father and his father died, and afterwards he slaughtered or sold it, he does not pay the brothers the fourfold and fivefold payments since he now has a portion in it. But if he slaughtered and sold it and afterwards his father died, he is liable, and even if his father was ill or moribund at the time he slaughtered and sold it, since at the time of the act it was not his [it appears to me].

If one stole a whole animal and severed a limb from it and sold it, it remains in the Gemara there in doubt: do we say that since he did not sell what he stole, he is exempt from the fourfold and fivefold payments, or perhaps since he sold everything found in it now, he is liable? And likewise, it remains in doubt if he sold it effective immediately, but that for thirty days the thief shall perform work with it, whether its law is like one who sold it after thirty days and he is exempt when the stolen object is found within the thirty days, or perhaps since the sale is completed from now and this work he performs is nothing more than a mere condition and he is liable. And likewise, if he sold it effective immediately and stipulated with him that if he does not slaughter it immediately, the profit he gains from its work shall belong to the seller, or if he sold it except for its fetus, it is a doubt whether this is a reservation of rights or not. And the Rambam, of blessed memory, ruled in the second chapter that if he seized the payment, we do not remove it from his hand; and he follows his own reasoning that even in a doubt of the Gemara, seizure is effective. And there are those who disagree with this, as the Kesef Mishneh wrote.

Even though there is no agent for a matter of transgression, nevertheless, regarding slaughtering and selling, if one appointed an agent to sell it or slaughter it, the sender is liable in every case when his agent sold it or slaughtered it, for the Torah decreed so from that which is written, "and he slaughtered it or sold it." And selling is impossible by oneself, for there is a buyer; and since the Torah made him liable for this, it implies that also regarding slaughtering via another, or if the essence of the sale was via another, he is also liable. Therefore, partners who stole, if one of them slaughtered or sold with the knowledge of his fellow, they pay between the two of them. But if he acted without the knowledge of his fellow, he is exempt even for his own portion, for there is no "and he slaughtered it" entirely in liability. And that which we obligated in section 2 to pay five half-oxen, that is when he stole the animal of partners and slaughtered it and afterward confessed to one of them regarding his portion, for at the time of slaughtering it was entirely in liability, which is not the case here [Rashi ibid.].

A thief who stood in judgment with the owners, such as where he had some claim and lost in his claim, and the judge said to him, "Go out and give to him," and afterwards he slaughtered or sold, he is exempt from the fourfold and fivefold payments. But if he said to him, "You are liable to give to him," and afterwards he slaughtered or sold, he is liable, for "you are liable to give to him" is not a final judgment, as has been written in siman 79, and therefore the status of a thief is still upon him. However, with "go out and give to him," when he did not comply and slaughtered or sold, he is not a thief but a robber, and a robber is exempt from the fourfold and fivefold payments.

If the thief slaughtered it and it became a nevelah in his hand, or one who stabs it or uproots the simanim, he is exempt, for this is not a slaughtering at all. But one who slaughters for medicine or for dogs, or if it was found to be a tereifah, or one who slaughters kilayim, he is liable, as the name "slaughtering" applies to this. And even the slaughtering of a tereifah, which is not fit for eating, nevertheless we hold that a slaughtering that is not fit is called a slaughtering, because its slaughtering is effective to purify it from the impurity of nevelot, as the Rambam wrote in the second chapter of Hilkhot Avot HaTumot. And all the more so for medicine and for dogs, for behold, he is able to eat from it even though his intention was not to eat it. And so too kilayim, even though it is disqualified for an offering, as the Rambam wrote in the third chapter of Hilkhot Issurei Mizbe'ach, nevertheless for a commoner it is kosher.

If one stole within the owner's domain and slaughtered or sold outside of their domain, or if one stole outside of their domain and acquired it through meshikhah and slaughtered or sold within their domain, he is liable for fourfold or fivefold payments. However, if he stole and slaughtered or sold within their domain and did not lift the stolen object in his hand such that he would acquire it through hagbahah, he is exempt, because he did not acquire it prior to the slaughtering or selling, and it turns out that he slaughtered or sold that which is not his. And if the flock was in a forest, since he struck the animal with a staff or with a voice and hid it among the trees, he is liable for double payment even though he did not pull it, for this is its meshikhah. And even though they saw him at the time he did this, nevertheless, since he acted in concealment, he is not a gazlan but a thief, as I wrote in siman 348. And if he slaughtered or sold there, he is liable for fourfold or fivefold payments.

A thief who stole from a thief, even after the owners despaired, is not liable for the double payment nor for the fourfold or fivefold payment, neither to the owners nor to the previous thief. For from the owners he did not steal, and to the first he does not pay because he is obligated to return it and the previous thief did not acquire it. And if he stole and slaughtered, and another came and stole it from him after the slaughtering, the first pays the fourfold or fivefold payment to the owners, and the second pays the double payment to the first, for he acquired it through a physical change and he only needs to pay the value to the owners. And if he stole and sold it, and another came and stole from the buyer, the first thief pays the fourfold or fivefold payment, and the second, if he stole it after despair, pays the double payment to the buyer, for the buyer acquired it through despair and a change of domain. And the despair must be prior to the sale according to one opinion that will be explained in siman 353. And if he stole it before the owners despaired, he is exempt from the double payment, for it is returned to the owners.

One who steals slaves, documents, or lands is exempt from kefel, as they are excluded from the law of kefel like the law of shevuat hapikadon, as has been written in siman 95. Similarly, one who steals from the hekdesh or from a non-Jew is exempt from kefel, for he pays only the principal, as it is written regarding kefel "his fellow," and it is written "and it be stolen from the man's house" and not from the house of hekdesh. Consequently, he is also exempt from four and five, for the kefel is included in the calculation of four and five, and since there is no kefel, it would be necessary that there be payments of three and four, and the Torah said four and five and not three and four. And if he stole a firstborn donkey, even before it was redeemed he pays kefel; even though it is not currently his, it is fit to be his after he redeems it. And even though we hold that it is forbidden for benefit before redemption, as has been written in Yoreh Deah siman 321, nevertheless, since it is in his power to redeem it, it is not similar to hekdesh but rather to chullin, and it is called his regarding kefel [Bekhorot 11a], even though if he betrothed a woman with it, she is not betrothed [Kiddushin 56b].

The Rambam, of blessed memory, wrote [ibid.]: If one stole and slaughtered and sold and afterwards consecrated it, he pays fourfold and fivefold restitution. But if he stole and consecrated and afterwards slaughtered and sold, even though he consecrated it as minor-sanctity offerings, he pays double restitution and does not pay fourfold and fivefold restitution. In what case does this apply? When he consecrated it after despair; but if he consecrated it before despair, it is not holy, and if he slaughtered or sold, he pays fourfold and fivefold restitution. If the owners consecrated it while the theft was still in the hand of the thief, it is not holy because it is not in their possession, even though they did not despair. And if the thief slaughtered or sold, even after they consecrated it, he pays fourfold and fivefold restitution. Thus far his words. And some say that a thief who consecrated it for Temple maintenance pays fourfold and fivefold restitution, for it is like a sale; for what difference is there to me if he sold it to a commoner or if he sold it to Heaven? But if he consecrated it for a sacrifice, this is not like a departure from his possession, for he vowed it for his sacrifice [Ra'avad]. He further wrote that if one stole and slaughtered non-sacred animals in the Temple courtyard, he pays fourfold and fivefold restitution; and even though non-sacred animals slaughtered in the Temple courtyard are forbidden for benefit, since their prohibition is from the words of the sages, he is liable. Thus far his words.

The Rambam, of blessed memory, wrote [ibid.]: One who steals terumah from its Israelite owners who separated it does not pay double payments, for they have nothing in it but the benefit of discretion, and the benefit of discretion is not monetary property. Thus far his words. Many of our teachers disagree with him and hold that the benefit of discretion is monetary property, and the great later authorities agreed with the opinion of the Rambam. And it appears to me that, in any event, it is a legal doubt, for from the Gemara [Bekhorot 27] it is explicitly proven that it is monetary property, as it says there: An Israelite who separated terumah and another Israelite found him and said to him, "Here is a sela for you, and give it to the son of my daughter, a kohen," etc. Furthermore, we learned [Arakhin 28b]: We estimate how much a person is willing to give for it, etc. And the Rambam, of blessed memory, in chapter 12 of Terumot wrote regarding this that it is specifically when the owners want to give them to one of these two kohanim for free, and he said to him, "Here is a sela for you and give it to this one," but owners who said to a kohen, "Here is this portion for you in exchange for the benefit of discretion," this is forbidden. Thus far his words. And this is the approach of the Yerushalmi [Nedarim chapter 11, halacha 3], where they disagreed whether it is permitted to take money in exchange for the benefit of discretion, and our Gemara holds that they can take it [and so it appears from the Ramban at the beginning of chapter 4 of Bekhorot and in the Rosh; and on the contrary, from our Gemara it is explained that according to everyone they can take money, and nevertheless they disagreed whether the benefit of discretion is monetary property or not. And it appears to me that our teachers therefore ruled that it is monetary property because from the Yerushalmi it is explained that if they can take money, it is certainly monetary property, and our Gemara holds they can take it, and therefore even though in this there is a dispute whether it is monetary property or not, they ruled that it is monetary property. And it is more implied from Bava Metzia 11a that even though it is monetary property, nevertheless it is not so for every matter, such as to acquire through kinyan chalupin or kinyan agav. And from Nedarim 84b there is no proof that it is monetary property, for there it is because a concession is forbidden in a case of a vow against benefit, but in other matters it is not monetary property; and according to the Rambam, perforce one must say so; see the Shach, and examine carefully].