Siman 358

Any item for which there is a presumption that the one selling it is selling a stolen item, it is forbidden to take it. And likewise, even if the buyer does not sense now that he is selling him a stolen item, but it is known that the majority of such items are under a presumption of theft—such as tailors who sell remnants of fabric and the like—it is forbidden to take them. Therefore, every person who buys an object in a place that is not open, such as in a shop, must know and sense whether the seller is selling him a stolen item or not:

Our sages, of blessed memory, said [at the end of Bava Kamma] that for this reason one may not purchase wool, milk, or kids from shepherds. However, one may purchase milk and cheese from them in the wilderness, but not in a settled area, for in the wilderness it is likely that the owners commanded them to sell because it is a great burden to bring them to a settled area. But wool and kids are brought to a settled area, and one may not purchase them in the wilderness, for their intention is certainly to steal from the owners. It is permitted to purchase from shepherds four sheep from a small flock or five from a large flock, for the presumption is not that it is stolen, since the owners would notice such a number and he cannot steal them. Similarly, regarding shearings of wool, it is permitted to purchase the shearings of four sheep from a small flock and five from a large flock for this reason. The general rule of the matter: anything the shepherd sells, if the owner of the flock would notice its absence when he sells it, it is permitted to purchase it, for it is not within his power to steal it; and if not, it is forbidden, even though one does not know for certain that the shepherd's intention is to steal, for ordinary shepherds are suspected of this. Even if the shepherd also has sheep of his own, one should not buy from him that which is suspected of being stolen. This is not similar to what was written in siman 369, that it is permitted to benefit from a gazlan from his own property when he has a small amount that is not stolen; that applies to benefiting from his property, but not to purchasing the item [the Maggid Mishneh, chapter 5 of Gezelah, halacha 8]. This follows the version in the Gemara [Bava Kamma 119a]: "From when is it permitted to benefit from a gazlan?" and this is the version of the Rambam and the Rosh. And even according to the version of the Rif, "to collect from him," one could say this. However, before us the version is "to purchase from him," and it is impossible to make such a distinction; one must say that it deals with a case where the shepherd has no sheep of his own at all. There are those who wish to distinguish between a ganav and a gazlan, but it does not appear so [as per what the Sma wrote, and what the Tur and Shulchan Aruch wrote, "if the majority of that thing," its meaning is not regarding this individual but regarding the general category of the thing, and so it appears from the Kesef Mishneh at the beginning of chapter 6 of Geneivah, see there].

One may not purchase wood from watchmen of wood or fruit from watchmen of fruit except at a time when they are sitting and selling openly and the scale or the measure is before them, for the matter is open and has a voice, and presumably they act with the permission of the owners. And specifically when it is at the entrance of the garden, but when they sell to him from the side, it is forbidden to purchase from him. And so too regarding all things, if he said to the buyer "hide the item," it is forbidden to take from them, as it is evident that his intent is to steal.

It is permitted to purchase from an aris, for he has a portion in the fruits and in the wood. And some say specifically after they have divided, for presumably he is selling his own; but before the division it is forbidden, for we fear that he will not give to the owner corresponding to what he took. And this is specifically when it is known that they have not divided, but in an ordinary case we hang it on the assumption that they have already divided [Tur]. And similarly, when he brings from his house, we hang it on the assumption that they have already divided [Bach].

If Reuven comes to Shimon's house and Levi takes some food belonging to Shimon and honors Reuven with it, Reuven should not eat, even though he knows that Shimon will be pleased when he finds out; nevertheless, for the time being he does not know, and it is like despair without knowledge [Tosafot Bava Metzia 22b]. This applies when Levi is not close to Shimon's household, but when he is in his house or comes occasionally to his house and has permission from Shimon for such things, it is permitted to benefit. For if not so, when the master of the house is not in his house, his wife, children, and members of the household would not be able to bring in guests or give bread and the like; rather, it is certain that they are like the agents of the master of the house [it appears to me]. And a beit din has the power to give even if he is not here, as is written in Even HaEzer siman 70; see there.

Our Sages, of blessed memory, said [ibid.] that one may not purchase from women, slaves, or minors when there is reason to fear that perhaps they are selling without the knowledge of the owners. However, one may purchase from them items that are presumed to be theirs with the knowledge of the owners, who authorized them to sell, such as women who sold linen garments in the Galilee or calves in the Sharon, for they were very common there, and it was the way of the householder not to be particular with their wives, and they would buy and sell with their permission. Likewise, when the wife transacts in her husband's business affairs and sells without concealment, it is permitted to purchase from her. And one may purchase eggs and chickens in any place from any person because in their days they were inexpensive and they were not particular about this. Nevertheless, if they told the buyer to conceal them, it is forbidden, for it is a sign that they are stolen.

One may purchase from the badadim—those who produce oil in the olive press—olives by measure and oil by measure, but not a small amount of olives or a small amount of oil, for the presumption is that they are stolen. And so too regarding anything similar to this, and everything is according to the matter as the buyer understands, as has been written. And the beit din has the authority to punish those who take hold of stolen goods and of things that are not theirs. And there was an incident involving a certain woman who took hold of property belonging to orphans, and they decreed that no man should marry her, so as not to strengthen the hands of transgressors.

It is the way of wool that when it is laundered, waste falls from it during the laundering, and those fibers that the launderer removes belong to him. However, what the comber removes during his combing belongs to the homeowner. The principle depends on this: anything about which the homeowner is fastidious must be given to the homeowner. And such was their way in the weaving of a garment, that they would weave three threads at the edge of the garment, and at the time of soaking in water they would remove them; and the sages, of blessed memory, said that those three threads belong to the launderer. If they left more than three threads, everything belongs to the homeowner. And if the garment is white and the threads are black, he takes everything, because they disfigure the garment and the homeowner is not fastidious about them.

A tailor who sews with the owner's threads, and there remains of the thread enough for a needle's pull—that is, the length of the needle and a needle's length beyond the needle—and similarly if there remains from the fabric a cloth of three fingerbreadths by three fingerbreadths, he is obligated to return it to the owner. Less than these measurements, these belong to him. And the sawdust that the craftsman produces with an adze when he divides a beam into boards, and very thin shavings fall from it and there is a burden for the owner to bring them to his house, they are his. But pieces of wood that fall from a plane or an ax belong to the owner. And if they work at the owner's place, even the sawdust belongs to the owner. And so too in other crafts: anything that the owner typically insists upon, he returns it to the owner, and anything he does not insist upon belongs to the worker. And in all these matters and the like, one follows the local custom, and if there is no custom there, they shall conduct themselves as we have written according to the law of the Gemara.

Any artisan who sold something from the items that are not his, it is forbidden to purchase from him. But if he sold items that are his, one may purchase from him, and we are not concerned that perhaps the owners stipulated with him that even this should belong to the owners. However, if the artisan says to the buyer, "hide it," it is forbidden, as it is evident that it is stolen, for presumably he stipulated with him that he should not take them for himself. And if it was changed in his hand, even if it is a change that can return to its original state, one is permitted to purchase from him, for this is not certain theft but rather a doubt; therefore, they permitted purchasing from him with any change whatsoever. Therefore, one may purchase from him a pillow full of stuffing, as its name has changed from "stuffing" to "pillow," and even though it is possible to remove the stuffing and they would return to their original state, nevertheless, in a case of doubt they permitted it in such a manner. And so too anything similar to this. And any matter where a person is in doubt whether to purchase or not, he should go to the beit din and ask.

The Rambam wrote in the ninth chapter of Laws of Theft: Anyone who steals a soul from Israel violates a negative commandment, as it is said, "You shall not steal." This verse mentioned in the Ten Commandments is the prohibition against stealing souls. Thus far his words. And the verse "You shall not steal" in Parshat Kedoshim refers to stealing money, and we learn each one from its context, for in Kedoshim it deals with matters of money, and the verses of the Ten Commandments refer to souls, as "You shall not murder" is written next to it. Similarly, one who sells him violates a negative commandment, as this is included in "They shall not be sold as a slave." And one does not receive lashes for these negative commandments because they were given as a warning for a death penalty by beit din, as it is said, "And he treats him as a slave and sells him, and that thief shall die," and his death is by strangulation, for every death mentioned in the Torah without specification is strangulation. And any negative commandment that was given as a warning for a death penalty by beit din, one does not receive lashes for it, for it was stated for death and not for a negative commandment. Therefore, even if they did not warn him for death then, or if according to his action there is no death in this, nevertheless one does not receive lashes [see Tosafot Shabbat 154b].

The thief is not liable for strangulation until he steals him, brings him into his domain, makes use of him, and sells him to others, as it is said: "and treats him as a slave and sells him," and "treating as a slave" is a term for usage. Even if he only used him for less than the value of a perutah, such as if he leaned on him or supported himself with him, and even if the stolen person was sleeping, this is considered usage. If he stole him, used him, and sold him, but the stolen person was still in his own domain because the thief did not bring him into his domain, he is exempt. If he stole him and brought him into his domain and used him but did not sell him, or sold him before he used him, or used him and sold him to one of the relatives of the stolen person, such as if he sold him to his father or his brother, he is exempt, as it is said: "steals a person from his brothers," until he separates him from his brothers and his relatives through this sale. Similarly, if he stole him while he was sleeping, used him while he was sleeping, and sold him while he was still sleeping, he is exempt, since in all these matters he was sleeping; and in the Gemara [Sanhedrin 86a] this is an unresolved inquiry, and in a case of doubt regarding capital laws we rule leniently. Similarly, if he stole a woman and sold her only for her fetus, such as if he stipulated with the buyer that you have rights only to the offspring, he is exempt, and this too is a legal doubt and we follow the lenient path, as I have written.

One who steals his son or his younger brother, and similarly a guardian who stole the orphan who is supported by him, and a homeowner who stole one of the members of his household who are supported at his table, and a teacher of children who stole one of his students—even though they made use of them and sold them, they are exempt from death, as it is said, "and he be found in his hand," which excludes these who are commonly found in their hand.

Whether one steals an adult or one steals a minor, even if he is one day old, provided only that his months of gestation were complete, whether male or female, and whether the thief was a man or a woman, behold these are executed, as it is said, "one who steals a soul" in any case, and even one day old is called a "soul" when his months were complete. And whether one steals an Israelite or a convert [in ancient times] or a liberated slave, as it is said, "a soul from his brothers," and these are included in "his brothers" regarding the Torah and the mitzvot. But one who steals a slave, or one who is half-slave and half-freeman, is exempt.

And all these matters must be with witnesses and a warning and during the time when the Beit HaMikdash was standing, and if two testified regarding the theft and two regarding the use and two regarding the sale, they join together, and when the witnesses were proven to be conspiring witnesses they are executed, and it has been explained in siman 38.

One who breaks in, whether by day or by night, has no bloodguilt, for if the homeowner killed him or even if another person killed him, they are exempt, because he comes with intent against lives, and every person has permission to kill him, whether on a weekday or on Shabbat, with any death they are able to kill him, as the reason will be explained. And it is the same for one who breaks in or a thief found upon a person's roof, or within his courtyard, or within his enclosure, whether by day or by night. And why was "breaking in" stated? Because it is the way of most thieves to come by breaking in at night [Rambam ibid.]. And the Tur in siman 425 disagrees on this, and it is the opinion of the Ra'avad that by day there is no law of breaking in, and there it will be explained with the help of Heaven.

And for what reason did the Torah permit the blood of a thief, even though he comes only for monetary matters? Because it is his presumption that if the homeowner stands before him and prevents him, he will kill him; thus, this one who enters the house of his fellow to steal is like one pursuing his fellow to kill him. Therefore, the Torah permitted killing him, whether he was an adult or a minor, whether male or female. And if the matter was clear to the homeowner that this thief coming upon him will not kill him, for he comes only for monetary matters, it is forbidden to kill him; and if he killed him, behold, he is a murderer of a soul, as it is said: "If the sun has shone upon him," and its explanation is: if the matter is clear to you like the sun that he is at peace with you, do not kill him. Therefore, a father who comes in a tunnel against the son is not killed, for certainly he did not come for matters of life; but a son who comes in a tunnel against his father is killed by default, unless he knows clearly that the son did not come for matters of life when he will not let him take money. And therefore, it is the opinion of the Ra'avad that during the day it is forbidden to kill him, for for the most part, a thief does not come during the day for matters of life, but snatches and flees immediately.

The thief, as long as he is in the tunnel, one is permitted to kill him. If he exited from his tunnel to the outside, it is forbidden to kill him. Therefore, a thief who stole and exited, or who did not steal and they found him exiting from the tunnel, since he turned his back and is not pursuing, and certainly when he is fleeing, it is forbidden to kill him, and he has blood-redemption if they killed him. And so too, if people or designated witnesses surrounded him while he was in the tunnel, he is not killed even though he has not yet exited from his tunnel, for now it is impossible for him to kill the homeowner, as those watching will not let him, and he will also be terrified upon seeing people around him. And it goes without saying that after he exited from his tunnel and came to beit din that he is not killed, for he has already exited from his tunnel [as appears to be the intention of the Rambam and the Targum, see there and examine carefully]. And so too, one who comes via a tunnel into the garden of his fellow, or into his field, or into the pen or the fold, it is forbidden to kill him, and he has blood-redemption when one killed him, because the presumption is that he came for the money alone, since the owners are not usually found in these places. And any thief who has blood-redemption, if a heap of stones fell upon him on Shabbat, one supervises the rescue for him; but if he does not have blood-redemption, one does not supervise the rescue for him. And one who has blood-redemption and broke vessels during his entry into the tunnel is liable for payment, but one who does not have blood-redemption who broke vessels during his entry is exempt, for we apply to him "establish for him the greater [punishment]," and even in this time he is exempt, for those liable for death penalties unintentionally are exempt from payment, and this has already been explained in siman 351. And if the beit din saw fit to institute enactments so that thieves do not multiply, they may do so to discipline them in every way possible so that they return from the evil path to the good path.