Siman 360

Anyone who steals is obligated to return the stolen object itself, as it is said: "And he shall return the stolen object which he stole." If he wishes to pay the monetary value, he does not fulfill the obligation of returning it when the stolen object is in his possession if the victim does not consent to this. If the victim consents, he has fulfilled it; nevertheless, he violates "do not covet" unless the victim forgives him entirely, for then no return is necessary at all. And know that we have not found in the poskim a distinction in the commandment of returning between an Israelite and a gentile according to those poskim who hold that stealing from a gentile is prohibited by the Torah. And know that there are some of our teachers who hold that a star-worshiper who stole is not subject to returning [Rashi, Eruvin 62a]. The reason is that the commandment of returning is written in Leviticus regarding one who swears falsely and confesses, who is obligated in the principal, a fifth, and a guilt offering, and the gentile only brings a burnt offering, as the Rambam wrote in the third chapter of Maaseh HaKorbanot. However, in the Rambam, the Tur, and the Shulchan Aruch, we have not found this matter. Such is also the opinion of our teachers, the authors of the Tosafot [ibid. and in Avodah Zarah 71a, s.v. Ben], and that which the sages of blessed memory said regarding a descendant of Noah, that it was not given for returning, this refers to when he stole less than the value of a perutah. This is the primary ruling, for most of the poskim hold accordingly.

When the stolen object is lost, he pays its value, and similarly if it was changed, he acquires the body of the stolen object through the change and pays the value according to what it was worth at the time of the theft, as has been written in siman 353. There is no distinction in this matter between whether he confessed of his own accord or whether witnesses came and testified that he stole. Even though the fact that change acquires is derived from "that which he stole," and this verse was stated regarding a confession of his own accord, nevertheless, regarding the matter of change, there is no logic to distinguish. Furthermore, even regarding the matter of double payment and four-fold or five-fold payments, change is effective, as has been written there, and this applies only with witnesses [the Gra].

By Torah law, even if one stole a beam and built it into a large palace, since it has not changed in its essence, he must demolish the entire building and return the beam to its owners. However, the sages enacted for the sake of the "enactment of the penitent" that he should provide its value and not lose his building, for this one benefits and this one lacks nothing. And even if he stole a beam and used it for a sukkah, which is a temporary dwelling, and the owner of the beam came to claim it during the festival, he provides him its value, for all the days of the festival it is like a permanent dwelling. But if he claimed it after the festival, since it has not changed and he did not build it with mortar, and he suffers no loss if he dismantles the structure, he returns the beam itself. And see what I wrote in siman 366.

Regarding the theft of land, they did not institute the "enactment of the penitents," such that if one stole land and built large buildings upon it, he must demolish everything and return the land to the owners. The reason: there is one who says that since land cannot be stolen, as it exists forever, and it is common for men of violence to fall and ultimately the land will return to its owners, they did not institute an enactment in this matter [Taz]. For the essence of the enactment is for the sake of the "enactment of the penitents," because if we command him to demolish his palace and return the beam, he will not do so and the beam will rot; but regarding land this is not applicable, so they established it according to Torah law, and the thief should have known this and should not have built upon stolen land [Sma]. Furthermore, the essence of the "enactment of the penitents" is so that he will not hide the stolen object, and regarding land it is impossible to hide it [Levush]. And some say that if one stole a bit of land from his fellow through error, having encroached upon his border without intent and built a building upon it, he pays its value because of the "enactment of the penitents" [Mabit]. And it appears that the same applies if the thief sold the land and the buyer did not know it was stolen and built a building upon it, that he returns the value since he did not know it was stolen [and what is written in the Sma, subsection 6, that "he should not have purchased it," is a scribal error and it should say "built it"; and see Bava Kamma 21a, "he collected the palace from him"].

One who robs less than the value of a perutah, even though he has committed a transgression, nevertheless it is not subject to the law of restitution, as it is not considered monetary wealth and an Israelite waives his right to this. Nevertheless, if he robbed the value of a perutah and it depreciated, he must return it or its value. Furthermore, even if he robbed three bundles of vegetables worth three perutot and they depreciated until they were worth only two perutot, and he returned two to him, he is obligated to return the third, since at the beginning it was the value of a perutah. The reason is that since all robbers pay according to the time of the robbery, and at the time of the robbery it was the value of a perutah, he must fulfill the commandment of restitution. Therefore, even when he fulfilled the commandment of restitution with two, he is obligated to fulfill it also with the third perutah of the time of the robbery. And all the more so if he robbed two agurot worth a perutah and returned one; even though there is no robbery here, for the value of a perutah from the time of the robbery does not remain in his hand, nevertheless there is also no fulfillment of the commandment of restitution here, for he did not fulfill "and he shall return the robbery" since he did not return the value of a perutah. And even though the commandment of restitution is not an absolute requirement when there is no robbery here, nevertheless he did not fulfill the positive commandment of "and he shall return the robbery" which it was in his power to fulfill [Tosafot Bava Kamma 105a]. It is not similar to less than the value of a perutah that he robbed, where the commandment of restitution did not take effect upon him at all; whereas in this case, the commandment of restitution took effect upon him and he did not fulfill it. Therefore, some say that in truth we lash him until he fulfills the commandment of restitution, just as we compel regarding every positive commandment [Tur in the name of the Ramah]. All this is when he returned the one of his own accord, but when beit din forced him to return and he returned the one, they compel him to return the second as well [the Rosh], for a beit din that was required to attend to a robbery of the value of a perutah completes the matter even for less than the value of a perutah, as I wrote in siman 6.

It has already been explained in siman 353 that when a stolen object has undergone a physical change, even if the owners have not despaired, one need not return anything but the value of what it was worth at the time of the theft, and he acquires the body of the stolen object through the change. This is specifically provided that it is not a change that can return to its original state. How so? One who steals wood and joins them with nails and makes a chest from them, this is not a change, for it is possible to dismantle them and they return to being wood as they were. This is specifically when the wood itself did not change at all, such as if he stole planks fit to make a chest from them; but if he stole wood that was not prepared for a chest and he planed them, smoothed them, and cut them, this itself constitutes a change even if he did not make a chest at all. And certainly if he stole a thick piece of wood and carved a vessel in it, this constitutes a change. And any physical change, even if the change is not for the better but for the worse—such as if he stole a large piece of wood and made it into boards, and the wood is more expensive than the boards—nevertheless he acquires it. For so it is implied from all the poskekim who did not mention a change for improvement, and so it is proven from what will be explained that a brick made into dust constitutes a change [and so wrote the Yam Shel Shlomo, Bava Kamma, chapter 1, section 29].

If one robbed soil and made it into a brick, he has not acquired it, for it is a reversible change, as if he crushes the brick it will return to being soil as it was. And some say that this is only if he dried them in the sun, but if he fired them in a kiln, it is impossible to crush them into fine soil as at first [Rashba, Bava Kamma 96b]. And similarly, if he robbed a piece of metal and made it into a coin, he has not acquired it, for if he melts the coin, the piece will return to what it was. And similarly, if he made it into a vessel, he has not acquired it for this reason [Shach]. But if he robbed a brick and made it into soil, or stones and hewed them, or coins and vessels and melted them or broke them, this is a change in his hand and he has acquired it. And we do not say that this too is a reversible change because he could make this brick or these coins and these vessels, for behold, if he does so, a new face will come, as it is impossible to be exact so that the form is exactly as it was at first, for the appearance will certainly change slightly [Shitah Mekubetzet]. And it is also impossible to be exact so that it is equal in length or in width as at first [Rashi]. And even if he makes it in a mold set exactly as at first, nevertheless the appearance will change slightly, and so too anything similar to this [as mentioned above also according to the explanation of Rashi].

8. One who steals old coins and polishes them and makes them new has not acquired them, for they will age and return to how they were. But if he stole new coins and aged them, he has acquired them, for if he makes them new again, they are a "new face" as has been written. And if he stole a palm tree attached to the ground and cut it down, he has not acquired it, even if he cut it into segments, for the name "palm tree" is still upon it. And even if he made a bridge from them, he has not acquired it, for it is a reversible change [Bava Kamma 113b]. And if he made them into beams, he has acquired them, for from now on the name has changed to the name "beam." But if he stole large beams and made them small, he has not acquired them, for the name "beams" is still upon them. And if he cut them into boards until their name changed, he has acquired them. And if he stole a lulav and separated the leaves from the spine, he has acquired the leaves, for their name has changed, as now the leaves are called "hotzin." And likewise, if he stole leaves and made them into a "chufya," which is when he ties them together like a broom to sweep the house with it, he has acquired it, for its name has changed to the name "chufya." And this is specifically when he split each leaf into two, for if not so, it is a reversible change [Rashi ibid.]. But if he stole a "chufya" and made it into a "sharshira," which is like a rope, he has not acquired it because he is able to dismantle it and return it to its original state [Gemara]. And likewise, any change of name, even if there is no change in its essence—such as a lamb that became a ram, or a calf that became an ox—he has acquired it, as has been written in siman 353.

If one stole wool and dyed it, or combed it and bleached it, or made it into felt, he has acquired it. This is specifically when he dyed it or bleached it in a manner that it cannot return to its original state [and this is the intention of our teacher, the Rema, in section 7; and see the Gra].

Our teacher, the Rema, wrote in section 6 that it is not called a change unless the name of the stolen object changed by virtue of the change. Thus far his words. And his intention is not that every change of action also requires a change of name, for if so, why do I need the change of action? Behold, even a change of name alone constitutes a change. Furthermore, behold wool and whitening it—there is no change of name in this, yet he acquires it if it does not return to its original state. Rather, this rule is merely a general indicator regarding most changes to explain the reasoning. For example, regarding wood, when he cut them into small pieces, this is not a change, but when he planed them, it constitutes a change because the small pieces still have the name "wood" upon them, but when he planed them, it changed to another name. And so wrote the Tur, and so wrote the Tosafot [at the beginning of the ninth chapter of Bava Kamma]. And similarly, regarding a brick and he made it into dust, it constitutes a change; but if he breaks the brick into many shards, certainly it does not constitute a change, for the name "brick" is still upon them. But when he made it fine like dust, its name changed. And the summary of the matters is this: if the change dominates the entire object, such as with wool and he whitened it or dyed it, or new and old coins, stones and he hewed them, and similar to this, it constitutes a complete change even though there is no change of name in this; since the change is recognizable in the entire object, it constitutes a change. But a change of action where he made that thing smaller, such as large beams and he made them small, nevertheless this is not a change, for behold the small pieces that remain have no change in them from before, as that same form is upon them. And it does not constitute a change except when their name changed, such as when he made them into planks, for then the change is recognizable in everything and there is indeed also a change of name, but it is impossible to be in any other manner [as mentioned above, and see the Hagahot HaGra subsection 10 and the Ketzot HaChoshen].