Siman 353

It is written, "and he shall return the stolen object which he stole," and it is superfluous, for it is obvious that he returns that which he stole and not something else. From this, our sages, of blessed memory, derived that specifically in the state in which he stole he shall return the stolen object itself, but if it was changed, he does not return the stolen object itself, for he acquired it through change; rather, he returns its value according to its worth at the time of the theft. And so too regarding a thief the law is thus, and regarding the double payment and the fourfold and fivefold payments, the payments are likewise in this manner.

There are three types of changes: a physical change, a change of name, and a change of domain. A physical change is, for example, if one stole wood and made them into vessels; he acquires it through this alone, and specifically with a change that cannot return to its original state, such as if he planed the wood and cut them. However, with a change that can return, such as if he joined them with nails where it is possible to remove the nails and the wood will return to its former state, this is not a change at all; the details of the laws will be explained in siman 360 with the help of Heaven. A change of name is, for example, if one stole a lamb and it became a ram. A change of domain is, for example, if he sold it or gave it to another; and this change does not acquire except with ye'ush, as will be explained.

Therefore, if the name of the stolen object changed in the hand of the thief, such as if he stole a lamb and it became a ram, or a calf and it became an ox, he has acquired it through the change of name, and he only has to return the value it was worth at the time of the theft; and also the double payment and the fourfold or fivefold payment he pays according to this change. And so too regarding a physical change that cannot return to its original state. However, a change that can return does not effect acquisition even by rabbinic law. And there is one who says that regarding a change of name alone, such as a lamb that became a ram and a calf that became an ox—for in the first year they are called lamb and calf, and once they enter the second year their names change—nevertheless, since in the language of the Torah even a day-old ox is called an ox, as it is written, "When an ox or a sheep or a goat is born," it is not called a change unless they become large so that the change is recognizable in their appearance [Yam Shel Shlomo]. And some say that we follow the common language of people in this, and in the common language of people one does not call a day-old ox an ox [Shach]. And according to this, they do not disagree at all, for it is certain that in the common language of people their names do not change from the moment they enter the second year, but rather from when they become large so that it is visible to the eye that they have left the category of lamb and calf. And know that in any place where one acquires through a change, he acquires even when he knew that it was stolen or robbed [Sma, beginning of siman 261].

If the owners despaired of the stolen object, he does not acquire it and must return it as is. Thus the halacha was ruled, that yeush does not effect acquisition, except that some say that a reversible change together with yeush effects acquisition, and he need only return the value, whether it is a change of name or a change of action. For even in a change of name there is that which is reversible, such as one who stole a beam and placed it on the roof, for originally it had the name "beam" and afterward it has the name "roof." The reason is that together their power is strong and it is not "as he robbed." So too, a reversible change of action with a reversible change of name, such as one who robbed a hadas and bound it with the lulav and the like, he has acquired it [Tosafot Sukka 30b]. And some say that even yeush alone effects acquisition rabbinically [ibid. s.v. shinui], and regarding Torah law one must be concerned for this, such as for the betrothal of a woman and the like. The Tur wrote likewise, see there.

A change of domain does not effect acquisition except with despair, and it is inferior to a change of form or a change of name. The reason is that it has not changed in essence at all, nor even in its name, but only that it changed from this domain to another domain. With despair, it effects acquisition, for the reason that despair does not effect acquisition in cases of theft or robbery—even though in the case of a lost object despair effects acquisition—is because a lost object comes into his hand permissibly, but theft comes into his hand through a prohibition. Therefore, in a change of domain with despair, it is similar to a lost object, for to the other person it came permissibly, as he did not steal it nor did he rob it. The opinion of the Rambam is that there is no difference whether the despair was before the change of domain, such that the owners despaired first and afterwards the thief sold it, or whether they despaired after he sold it. And there are some of our teachers who hold that it only effects acquisition when the despair preceded the change of domain; but if the thief sold it and afterwards the owners despaired, the buyer has not acquired it. The reason can be explained that even regarding a lost object, if he found it before despair he does not acquire it, for we establish that despair without knowledge is not considered despair. Therefore, this case where the stolen object came into his domain before the despair of the owners is similar to a lost object that he found before despair. Our teacher, the Rema, ruled according to this opinion. According to this, if the owner does not know that it was stolen from him, he does not acquire it even if he finds out afterwards, because the change of domain preceded the despair [Shach].

Change of domain and despair is not similar to change of name and change of action, for in those cases the acquisition is only for the body of the stolen object and one must pay the value, but in despair and change of domain, this purchaser does not even need to pay the value. For when the stolen object is in the hand of the thief, even though he acquired it against his will, he is obligated to pay for the theft; however, as for the other person who purchased it from the thief, why should he pay? Rather, the thief pays the owners. The Rambam, in chapter 5 of Laws of Theft, wrote that through despair and change of domain the buyer acquires it and does not return the stolen object itself to its owners, but rather gives them the value if he purchased from a notorious thief, or gives nothing at all—neither the object nor the value—if he purchased from a thief who is not notorious. Thus far his words. This is the version that was before the commentators of the Rambam, but before us the version is that the fact that he does not give the value is due to the market enactment and not by law. Our teacher, the Beit Yosef, wrote in section 3 also that the reason is due to the market enactment, and our teacher, the Rema, wrote on this that there are those who say that one does not need to give the value when purchasing from a notorious thief, for he acquired it completely. It is implied from his words that the opinion of the Rambam is that one does not acquire through despair and change of domain by law, and only in the case of a thief who is not notorious is one not required to return the value due to the market enactment; so it is also implied from what he wrote in siman 356. And there are those who say that all the poskim agree with the Rambam that in a case of purchasing from a notorious thief it is not a complete change of domain, for it came into his hand through a prohibition, and therefore he returns the value [Shach]. But they disagreed with him, for certainly all the poskim disagree with the Rambam, and he holds that despair and change of domain does not acquire completely, only that he does not need to return the body of the object but must pay the value, while all the poskim hold that it is a complete acquisition, and therefore even in a case of purchasing from a notorious thief, since it is after despair, he acquires it completely [the Gra]. And it appears to me that the Rambam also holds like all the poskim that it is a complete acquisition, for so it is proven in the Gemara [Bava Kamma 115a], but rather he holds by logic that just as the sages enacted in a case of purchasing from a thief who is not notorious before despair that the owners must return the value to the buyer due to the market enactment, so too in a case of purchasing after despair from a notorious thief, it is appropriate to enact that he should return the value to the owners due to the enactment for the owners, for he should not have purchased from a notorious thief. And the version in his words is not like the version before us. The poskim disagree with him because we do not find this enactment in the Gemara [and what the Shach wrote from Tosafot in Merubeh 67a requires great study, for they only wrote regarding despair that prohibited change of domain].

Some say that even in a case of one who purchased from a thief who is not well-known after despair, according to the Rambam, if he purchased from him at a low price, he must complete the payment up to their value to the owners [Sma]. And some disagree, and the proof for this is from what is written in siman 37, that regarding a robber who sold a garment to another, the victim of the robbery may testify for him because he is not an interested party, as he does not return it when he purchased it after despair. And if we were to say that he must complete the payment to the owners when he purchased at a low price, behold, it is possible that he is an interested party and his desire is to establish it in the hand of the buyer in order to take the remainder of its value [Shach]. And furthermore, according to what I wrote in section 6, even the Rambam holds that it is a complete acquisition and he does not return anything to him.

A change of domain is only called such when one sold or gave it, but if he died and his sons inherited it, it is not a change of domain, for the domain of an heir is not like the domain of a buyer. And it will be explained in siman 361, and it will further be explained there what is called a change of domain; see there.

Some say that even though despair and a change of domain effect acquisition, nevertheless, if the change of domain is for the sake of a mitzvah and the change is effected through the mitzvah—for example, if one stole an animal and the owners despaired, and the thief consecrated it, which constitutes despair and a change of domain to the hekdesh—it is disqualified for a sacrifice because it is a mitzvah that comes through a transgression, since the transgression was effected through the mitzvah. But if the acquisition occurred before the change, he may bring it as a sacrifice; for example, if he stole wheat and ground it, acquiring it through a change of form, and then consecrated it for meal-offerings, he may bring a meal-offering from them because he acquired them before he consecrated them. However, regarding a berakhah, even in such a case he should not recite a berakhah over them, for it is not fitting to mention the name of the Holy One, Blessed be He, over a matter that was stolen. And so our sages, of blessed memory, said: If one stole a se'ah of wheat, ground it, and baked it, and recited a berakhah over it, he is not reciting a berakhah but is a blasphemer, and regarding this it is said, "The robber blesses and blasphemes the Lord" [Bava Kamma 94a]. But from the words of the Rambam in the seventh chapter of Hametz, he disagrees on this, and it must be said that he holds that whoever says this holds that a change does not effect acquisition [and that Rava's statement is a mere rejection, see there]. But there are some of our teachers who rule accordingly [Tosafot Sukkah 30a and Bava Kamma 67a, starting with "Amar Ulla"]; and see Orach Chaim siman 196 and 649 [and see Lechem Mishneh, first chapter of Berakhot].