Siman 357

The Rambam, of blessed memory, wrote in the fifth chapter of Laws of Theft: A homeowner who is not prone to sell his vessels, and a rumor of theft went out in the city, and he recognized his vessels and his books in the possession of others; or if he was prone to sell, but these vessels that he recognized were of the type of vessels made to be lent or rented; if witnesses came that this is the vessel of this person, the one who has them in his possession shall swear with a sacred object regarding how much he paid, and he shall take it from the homeowner and return his vessels to him. If the homeowner was prone to sell his vessels and they were not of the items made to be lent or rented, even though a rumor of theft went out in the city and his vessels were recognized, he does not return them from the possession of the purchasers, for perhaps he sold them to others. But if people came and lodged inside his house, and he stood and cried out in the night, "My vessels and my books were stolen," and people came and found a breach tunneled through, and the people who lodged inside his house were leaving with bundles of vessels on their shoulders, and everyone says, "These are the vessels and books of so-and-so," he is believed; and the one who has the vessels in his possession shall swear with a sacred object how much he spent, and he shall take it from the owner of the theft and return his vessels to him. Thus far his words. And our teacher, the Beit Yosef, similarly transcribed it in the Shulchan Aruch.

It is clear from his words that when there are no witnesses to the theft of these vessels, a person is not believed to say that they were stolen from him, and we say that he sold them; and even if he is a householder who is not prone to selling his vessels, and even if these vessels are of the type of things made to be lent or rented, and even if they now saw the object in the hand of another, and if he were to claim "it is purchased" he would not be believed, as is written in siman 133, nevertheless, when the householder claims "they are stolen," he is not believed, for we say perhaps he needed money and sold them, and this person took them from the buyer. And the reason is that we do not presume people to be thieves, and it is not similar to the claim "they are lent in your hand." Therefore, one who claims "vessels were stolen from me" requires two signs regarding the theft: the first, that a rumor of theft went out in the city, and the second, that he is not prone to selling his vessels. And if he is prone to selling his vessels, the vessels must be of those made to be lent or rented. And if he is prone to selling and they are not of those made to be lent or rented, he requires a clear sign regarding the report of the theft, such as that people slept in his house and he cried out in the night, and things similar to this. And there are those who wished to interpret his words that regarding things made to be lent or rented, we do not require at all that a rumor of theft go out in the city, and he is believed with a migo of "they are lent in your hand," but it is not so, for the Rambam does not hold of this migo for the reason that we do not presume people to be thieves. And thus interpreted the Maggid Mishneh and our teacher, the Beit Yosef.

And this is the opinion of the Tur as well, except that he interprets the words of the Rambam to mean that regarding items made to be lent or rented, it is not necessary for a rumor of theft to have spread, and he challenged him. And our teacher, the Rema, holds similarly regarding the opinion of the Rambam, and therefore he wrote that there are those who say that since he claims they were stolen, the chazaka of items made to be lent or rented is weakened, for he himself does not claim such, and therefore we are concerned that perhaps he sold them. Thus far his words. And the explanation of his words is that the migo of "they were stolen" is not a migo for the reason that has been explained, and therefore according to what I wrote regarding the opinion of the Rambam, there is no dispute here in the halacha.

The Ra'avad, of blessed memory, [there] truly holds accordingly, that regarding items made to be lent or rented, it is not necessary for a reputation of theft to have emerged, and he is believed with a migo that they are borrowed. Even though we do not presume people to be thieves, this is when he says "you stole from me," but when he claims "they were stolen from me and you took them from the thief," it is a good migo, for there are many thieves in the world. And there is one who says that the Rambam also holds accordingly, but rather he is dealing with a case where witnesses did not see the objects in his possession, for he would not have been believed even with a claim of "borrowed," and there is no migo, as is written in siman 133, for he could say "I returned them to you." But if they saw them in his possession, he is believed by reason of migo [Shach]. However, this is not implied by the words of the Rambam [the Gra]. The primary view is according to the explanation of the Maggid Mishneh and the Beit Yosef, and for the halacha, the Rosh, the Tur, and the Rema agreed to this.

And regarding that which is not effective, it is called a "rumor of theft" alone, because we are concerned that perhaps he acted with artifice in this to spread a rumor that they were stolen from him in order to retrieve the vessels. Therefore, we require for this that he not be one who is prone to selling his vessels, or that they are vessels made to be lent or rented, or that there is a clear sign regarding the rumor of the theft, such as a breach that has been explained and the like. And the explanation of "made to be lent or rented" according to the opinion of the Rambam refers to vessels made from the beginning only to be lent or rented, as he wrote in siman 72 and 133. And this is a simple matter, that the homeowner must provide signs for these vessels that he claims were stolen from him [Taz]. And all this deals with a case where it is known that they did not despair, but in an ordinary case, we have already explained that an ordinary theft constitutes despair of the owners, and the buyer acquires it through despair and a change of domain.

Sometimes there is even if a reputation for theft has not emerged in the city, and even if he claims that he himself stole them, he is believed; for example, if they saw Reuven enter the house of Shimon and hide vessels under his wings and exit, as has been written in siman 90, see there. And know that if it was only clarified to the beit din that these items were stolen from Reuven and they were subsequently found, they judge this as a certain theft even though we did not see a tunnel, for the primary principle is to establish the clarification of the theft; and likewise if witnesses testified regarding the theft.

Reuven, whose vessels were stolen, or lost, or taken by bandits, and they came into the hand of a gentile and another Israelite purchased them for less than their value, and the owners came and claimed them from the hand of this one who purchased them: if he purchased before despair, he must return them to the owners; and if he purchased after despair, he acquires them through despair and change of domain. However, our teacher, the Rema, wrote in siman 368 that nowadays it is the custom to return every stolen item even after despair and change of domain, and one must not deviate from the custom, see there. And it seems that even now they conduct themselves accordingly.