Siman 356

It is forbidden to purchase from a thief the item that he stole, and it is a great sin, for he strengthens the hands of transgressors, as people say: It is not the mouse that steals, but the hole that steals. Furthermore, he causes the thief to steal more, for if he could not find someone who would purchase them, he would not steal. And according to the opinion of the Tur, it is forbidden to purchase any item from him, as he wrote in siman 369. So too, it is a severe prohibition to assist a thief in any matter so that he may steal. Therefore, a craftsman who is asked to make an object and he understands that this object is for the business of theft, it is forbidden for him to make them; and if he did so, his punishment is very severe. And even if the matter is a doubt to him whether this is for theft, it is forbidden to assist [Taz]. And a woman who has a husband and requests to have keys made for her without the husband's knowledge, it is forbidden to make them for her, for certainly her intention is to steal [Sma]. And Rabbeinu Gershom Meor HaGolah enacted with a severe decree not to receive stolen goods from a gentile, as many setbacks occurred through this to other people who were clean of this. Therefore, they may compel one who does not listen with all types of compulsion. And it is forbidden to benefit from a stolen object if he knows that it is a theft, and even after despair it is forbidden, as he wrote in siman 369, section 4; see there.

One who buys an object from a thief, if he bought it after despair, he has acquired it through despair and change of domain from the domain of the thief to his domain, and specifically when the change of domain was after the despair. According to the Rambam, it is effective even before the despair, as I wrote in siman 353. And even if it is not clearly known to us that he despaired, we say that presumably he despaired, for regarding an ordinary theft, the owners have despaired. If the thief is a gentile, an ordinary case is not considered despair of the owners, and it will be explained in siman 361 and 368. If he bought it before despair, where it is known that the owners have not despaired, by Torah law the purchaser must return the object to the owners without payment, and he shall claim his money from the thief. However, the sages enacted that when he bought it not in private, in the manner that one buys from thieves, and the purchaser did not know that it was stolen, he returns the object to the owners and they shall pay the purchaser what he paid to the thief. They enacted this for the sake of the "market enactment," for if not so, every person would refrain from buying in the market and commerce would be nullified. Even if the thief was identified, the owners pay the purchaser, and the owners shall claim from the thief. If the owners suspect the purchaser that he knew of the theft, they may impose upon him an acceptance that he did not know of this, and if they claim a certain claim, they may impose upon him a shevuat hesset [it appears to me].

And specifically when it is known that this object was stolen from him, such as where there are witnesses to this or it is publicized in the city that this object was stolen from him, as I wrote in siman 357. But without this, he is not believed to say that it was stolen from him, and we say that he sold it, unless the thief admits it. And some say that we require that they now see the object in the hand of the buyer, for if not so, we claim on behalf of the buyer that the seller bought it afterward, with a migo of "I returned it," as in the case of heirs at the end of siman 361. But it does not appear so, for granted in the case of heirs it is relevant to say that they returned what their father robbed, for so they must do; but a buyer, why should he return what he bought permissibly? Since by the enactment of the sages he does not need to return it without payment, we are witnesses that he did not return it to him. And behold, even regarding heirs there are those who disagree on this, as I wrote there. Nevertheless, if there are no witnesses that he bought it from the thief and they did not see this object in his hand previously, we claim on his behalf that the thief bought it afterward, with a migo that if the thief wanted, he could have said that he returned it to him; and see what I wrote in siman 357, section 2. But when there are witnesses to the purchase, or they saw the object in the hand of the buyer even previously, there is no longer a migo here. And if the thief himself admits that he stole it and did not buy it from him afterward, he must return it in any case and shall receive his money [it appears to me].

If the buyer acquired it from the thief through a kinyan sudar and paid him the money, and the owners preceded him and seized it from the thief, the owners do not need to pay him the money that he gave to the thief, for the takkanat hashuk does not apply in this case since it is now in the hand of the owners [Shach]. However, when the object is in the hand of the buyer, it does not avail the owners to seize it from the buyer, since by the enactment of the sages he is obligated to pay him the money he gave [Netivot HaMishpat].

Regarding a gift, they did not institute the takkanat hashuk since he did not give money. And some say that even regarding a gift they instituted the takkanat hashuk, for a gift is like a sale, as if he did not have some benefit from him, he would not have given him a gift. Nevertheless, the first opinion appears primary [Shach]; and see what I wrote in siman 60. And regarding land, takkanat hashuk is not applicable. However, regarding slaves and animals, since they move them from place to place, their law is like movables and takkanat hashuk applies to them. And even though there is one who is uncertain about this, nevertheless, this is the primary ruling [Ketzot HaChoshen]:

If one purchased from a notorious thief, they did not apply the takkanat hashuk for him, even if he purchased it in public and did not know it was stolen; nevertheless, since he is a notorious thief, the buyer should have been concerned that it was certainly stolen, and he caused his own loss, and he returns the object to the owners without payment and sues the thief for his money. And specifically when he is notorious for thefts, but if he is not notorious for thefts, even if he is notorious for evil in other matters, his law is like a thief who is not notorious [Shach]. And some say that even with a notorious thief they applied the takkanat hashuk for him, unless the buyer knew that this object he purchased was stolen, for then even with one who is not notorious he must return it without payment, and the primary view is like the first opinion [ibid.]. And similarly, if he purchased from a Cuthean thief, they did not apply the takkanat hashuk for him, and some say there is no difference, and such is the primary law [ibid.], and it depends on the assessment of the beit din [and study].

When the buyer knew that the object was stolen and he must return it to the owners without money, our teacher, the Rema, wrote that even the thief does not need to return his money to him, for he certainly gave it to him as a gift since he knew it was not his and he purchased it. Thus far his words. And they challenged him, for we establish that regarding one who buys a field from a robber when he knew it was robbed, the robber returns his money to him and they are not a gift, as is written in siman 373, and so too here, certainly the thief must return his money to him [Shach and Taz]. And it appears to me like the words of our teacher, the Rema, for we establish regarding one who betroths his sister that the money is a gift because a person knows that betrothal does not take effect with his sister and he resolved and gave it as a gift, as is written in Even HaEzer siman 3 and in the Gemara [Bava Metzia 15b]. The dispute regarding one who betroths his sister is dependent on the dispute regarding one who purchased a robbed field and recognized that it was not his, and nevertheless regarding betrothal we establish that the money is a gift, while regarding a field the money returns. And there is one who says to distinguish between his sister and a stranger, that to his sister he gives a gift but not to another, but it is impossible to say so; for even though the Gemara makes a "tzrichuta" for this reason, this is nothing but a mere "tzrichuta" in the manner of the Talmud and not according to the truth. For if not so, we would have to say that when the robber sold the field to his brother the money is a gift, and regarding betrothal when he betrothed a forbidden relation who is not his relative the money returns, and we have not seen any of the poskim who would say so. And the Rambam in chapter 6 of Zechiyah wrote explicitly the wording "because a person knows that betrothal does not take effect with forbidden relations" and did not write "his sister." According to this, if he betrothed a married woman, the money is also a gift [and so wrote the Lechem Mishneh]. And there is further proof, for in Kiddushin [46b] the Talmud challenges the one who holds that the money is a gift from one who separates his challah as flour, where it returns to the owners and is not a gift; and if we say that only with his sister is the money a gift, it is not a difficulty at all. And so it is explicitly proven in Arachin [30a], see there. And even though the Rosh, of blessed memory, wrote as if doubting this reasoning, nevertheless it should not be said, and also from the Rosh himself it appears that he does not hold this reasoning, and in Kiddushin there the Rosh himself did not mention this reasoning at all. And to distinguish in this, it appears to me that anywhere a person knows clearly that there is nothing to his actions, the money is a gift according to the ruling of our teacher, the Rema. It is only in the case of one who purchased robbed land that the buyer imagines in his mind that until the victim of the robbery comes and removes it by law, he will work it and consume its fruit, and therefore he purchased it but did not intend it as a gift; and this reasoning is proven there in the Gemara, see there. And our teacher, the Rema, holds that certainly if he purchased it in private he did not intend it as a gift, for it could be that he imagined in his mind that the owners would not become aware of this. And so too even if he purchased it publicly but did not know that the owners had not despaired, he purchased it on the doubt that perhaps the owners despaired, and an ordinary theft is a despair of the owners and he would acquire it through despair and a change of domain, and he did not intend it as a gift. But when he knew that the owners had not despaired and were pursuing the stolen object, and he purchased it publicly so that the owners would immediately know, it is simple that he had no doubt that the owners would remove the object from him immediately, and this is exactly like one who betroths his sister. Nevertheless, it appears to me that this is only in a case where the buyer takes the object and afterward gives the money to the seller, for it is proven that he gave it to him as a gift, for if not so, why did he give him the money? But in a case where they give the money and afterward take the object, the buyer can say that his intention was to return the object to the owners and he was unable to act in any other way. And there is proof from what our teacher, the Rema, wrote, that if the buyer said "I intended it for the best" he is believed, and even the owners must return to him the money he gave even with a famous thief, and specifically that if he had not taken it, it would not have been possible for the owners to return it [Shach]. If so, granted that regarding the owners returning the money to him it requires complete clarification, but regarding the thief returning his money to him, if there is only some pretext for the buyer as to why he did so, the money is not a gift. And it is not similar to one who betroths his sister, and only a pretext that he intended to give it as a deposit is no pretext at all, as is explained in the Gemara. And see what I wrote in Even HaEzer siman 27, section 26.

It has already been explained that according to the Rambam, it is acquired even with ye'ush after shinui reshut, and most of the poskim disagree on this and hold that if he despaired after he sold it, the buyer has not acquired it, for the ye'ush must be beforehand. Our teacher, the Rema, ruled accordingly. And in siman 353, section 5, we explained the reasoning of the Rambam, of blessed memory, and those who disagree with him; see there.

Our teacher, the Beit Yosef, transcribed in section 3 the wording of the Rambam, that with ye'ush and shinui reshut, he does not return the stolen object itself to its owners, but rather gives them the value if he purchased from a notorious thief, or he gives nothing at all—neither the object nor the value—if this seller was not a notorious thief. Our teacher, the Rema, wrote: The explanation is that since the owners must give the purchaser the purchase price due to takkanat ha-shuk, therefore the surplus of the purchase price he must give to him according to this reasoning; however, there are those who disagree and hold that ye'ush and shinui reshut effects a total acquisition and he does not need to give him even the value. Thus far his words. We have already explained in siman 353, section 6, that the Rambam also holds like all the poskim, but from the perspective of the takkanah it appeared to him regarding a notorious thief that he should return the money, see there. Therefore, in practice, one should not obligate the purchaser for what he bought cheaply to give the surplus to the owners; and when the seller was not a notorious thief, even according to the opinion of the Rambam he is exempt, and all the more so according to those who disagree, he is exempt even with a notorious thief, see there in section 7.

When one purchases from a thief who is not well-known, such that the owners must pay the purchaser the money he gave, and there are no witnesses as to how much he gave to the thief, the Rambam, of blessed memory, wrote that the purchaser takes an oath with a sacred object as to how much he gave and takes it from the owners. And in a case where the purchaser must return it for free and he claims his money from the thief, saying "I purchased it from you for such and such," and the thief says that he purchased it for less than this, the purchaser takes an oath with a sacred object and takes it. However, the thief is not believed with an oath to be exempt, because he is suspected regarding an oath, as has been written in siman 92; see there.

One who purchases from a thief who is not well-known, whether he purchased from him the value of a maneh for two hundred or the value of two hundred for a maneh, he takes the money he gave from the owner and afterwards returns the stolen item. We do not say that since he purchased the value of a maneh for two hundred, he certainly gave a gift to the thief; and likewise, when he purchased the value of two hundred for a maneh, he presumably knew it was stolen. This is because sometimes when one needs the object, he pays dearly, and when the seller needs money, he sells cheaply. Nevertheless, it appears to me that if it is an item commonly purchased in the market at a fixed price, or an item commonly sold at a fixed price, they did not establish the market enactment for this, as it is evident that there is trickery involved. It depends upon the assessment of the dayanim according to the time, the place, and the nature of the buyer.

If he bought it from the thief for one hundred and sold it to another for one hundred and twenty, and the thief was identified, the owner gives this latter person one hundred and twenty and takes the object, and the owner then goes back and takes the twenty that the first person profited from him, for they did not establish the market ordinance for profiting from a theft; and he takes the one hundred from the thief. And the same applies if the second sold to a third, and the third to a fourth, even up to one hundred, the law is such: that he pays the last person everything he gave, and takes from each one what he profited, and the principal he takes from the thief. And all this is when it is known that he did not despair, for when he despaired, the buyer acquired it through despair and a change of domain, as has been explained.

And if one purchased from a notorious thief for one hundred and sold it to another for one hundred and twenty, the Tur wrote that the owner takes the object from the second without payment, and the second takes one hundred and twenty from the first, and the first takes one hundred from the thief. However, the Rambam, of blessed memory, holds that for the second they applied the market regulation since he did not purchase from the thief, and therefore the second takes one hundred and twenty from the owner, and the owner takes the one hundred and twenty from the first, and the first takes one hundred from the thief. And the reasoning of the Tur is that since they acted only for the sake of the market regulation, they did not institute it regarding a notorious thief even for the second. However, our teachers, the authors of the Shulchan Aruch, did not bring the opinion of the Tur at all, and likewise the later authorities ruled like the Rambam.

An Israelite who bought from a thief and sold it to another Israelite, and a gentile came and said that it was stolen from him and he removed the object from the second individual according to their laws: if the thief is a well-known thief, the first must return the money to the second, for he caused his own loss by purchasing from a well-known thief; and if he cannot extract it from the thief, he has lost his money. And if he is not well-known, he does not need to return the money to the second, for he can say that the gentile is lying. And if it was clarified that he is not lying, he is liable for its guarantee, as I wrote in siman 225. And if they made any condition regarding this, everything follows their condition, as I wrote there. And similarly, Reuven who bought from Shimon and the gentile removed it from Reuven with the claim that Shimon stole it from him, he is not believed, for we suspect that he is telling a lie; and see what I wrote in siman 176.

The sages did not institute that the owner of the object must pay the buyer except when he paid the thief, but if he took it on credit, he takes it from the buyer without payment, and the buyer shall not pay the thief unless he gave the thief a pledge or a document that he can collect from him in the courts, for then it is as if he paid him. And likewise, if the thief paid a debt he owed with the stolen object, or for what he took on credit in a shop, there is no market regulation in this; rather, the owners take the object without payment, and the debt remains upon the thief as before, and just as they trusted him previously, so shall they trust him now.

If the thief left the stolen item as a mashkon, the owners give the lender the money that he lent upon it, for in this as well the takanat hashuk applies, and they return and engage in litigation with the thief, provided he is not a notorious thief and [the lender] did not know it was stolen. There is no difference whether he took it as a mashkon for more than its value or whether he took it as a mashkon for less. We do not say that since it is not the way of the world to lend upon a mashkon more than its value, he presumably did not lend to him based on the security of the mashkon but rather trusted him based on his reliability and there is no takanat hashuk here; for sometimes a person lends upon a mashkon more than its value because he knows that [the owner] will not neglect to redeem it. Therefore, its law is like that of a sale as has been explained. However, some say that he need only give the lender according to the value of the object [Shach], but the primary view is like the first opinion [the Gra]. If he left it as a mashkon and pays interest, he need only pay him the principal and not the interest, for they did not establish the takanat hashuk regarding interest. Similarly, a craftsman who is given vessels to repair and sold them or left them as a mashkon, the owners must give him his money and not the interest that accrues upon it. However, this is only according to the one who holds that a craftsman does not acquire through the improvement of the vessel, as written in siman 306; but according to the one who holds a craftsman acquires through the improvement of the vessel, he has sold and left as a mashkon that which is his. In a place where they are accustomed to pay the interest as well, and similarly where they are accustomed to return every stolen item even after ye'ush and a change of domain, they shall do so, for in monetary matters custom is a significant thing, and all the more so when there is also in this the law of the kingdom [see Shach, subsection 10].

If the thief owed the purchaser one hundred dinars and brought him the stolen item and gave it to him, and he gave him another hundred dinars, we do not say that it is true that the first hundred he does not need to pay him because he paid his debt and there is no takanat hashuk regarding it, but the second hundred he must pay him because he trusted him with these funds on account of the object and there is takanat hashuk in this. Rather, they take the object without funds and say to him: go and sue the thief for the two hundred, for you did not trust him with the second hundred because of the object alone, for just as you trusted him with the first ones, so you trusted him with the second ones. And even though it is likely that he would not have trusted him without a pledge for more than one hundred and not two hundred, nevertheless, he paid him with the object for the first hundred and he must return it to him without funds according to the law of one who paid a debt, and the second hundred he trusted him without a pledge [Gemara ibid.]. And even though it could be said that the debt remains upon him as it was and the second hundred he lent upon the object, nevertheless, since the object certainly belongs to the owners and the doubt is regarding the money, he does not extract from the owners out of doubt. And even though in any case through this the object caused the lender to trust him for two hundred, and he is not trusted by him for two hundred, nevertheless, even if we judge this as gerama he is also exempt, and all the more so since the owners did not cause it for him [it appears to me]. And all this is when he gave him the object without specification, but when there are witnesses that he said to him, "Lend me a maneh on this object," certainly this is a pledge in which they made takanat hashuk. And if there are no witnesses and the lender claims so, the owners shall give him a kabbalah that such was the incident, but he cannot administer an oath to him, for he does not know with certainty that it was not so, and we do not administer an oath on a claim of doubt. And some say that since he comes to take, he must swear even on a doubt [Shach], as I wrote in section 10 [see the Gra subsection 21]. And know that regarding all objects and also regarding books, takanat hashuk applies.