Siman 361

In siman 353 it was explained that ye'ush alone does not effect acquisition, but only with ye'ush and afterwards shinui reshut; and if the shinui reshut preceded the ye'ush, it does not effect acquisition. According to the Rambam, there is no distinction in this. Ye'ush with shinui hashem or a minor shinui ma'aseh that can return to its original state, some say that this also effects acquisition, and one need only return the monetary value. And even if he knew that it was stolen, nevertheless, it is acquired through ye'ush and shinui reshut.

And in siman 356 it was explained that ordinary theft constitutes despair of the owners, and if the thief is a gentile, it does not ordinarily constitute despair unless we heard that they despaired. And ordinary robbery, even by an Israelite, does not constitute despair of the owners unless we heard that they despaired, and this is an explicit Mishnah in tractate Kelim [chapter 26] and was brought in the Gemara [Bava Kamma 114a]. This is the opinion of many of our teachers. And that which they said in the Gemara there, and it will be explained in siman 368, that one who rescues from the hand of an Israelite bandit, it belongs to him because the owners ordinarily despaired, this is not the term bandit as used in common parlance, which refers to a robber, but rather a thief [Yam Shel Shelomo, Shach, and the Gra there, and Chelkat Mechokek and Beit Shmuel at the beginning of siman 28, and so wrote the Me'or there]. The proof for this is that the Gemara there also explained it so, and this is the opinion of the "some explainers" written by the Tur in siman 368, section 4, see there [and that which the Gemara answers there regarding an armed bandit who is a robber, that is according to Rava, but according to Ulla, whom the halacha follows, some say as before].

But the Tur himself wrote there in the name of the Rosh, of blessed memory, that regarding a Jewish gazlan, even presumably it is considered ye'ush, and regarding a Cuthean gazlan it is not considered ye'ush; and regarding a thief, even a Cuthean, it is considered ye'ush. The great authorities rejected his words. His primary reasoning was that he found difficult that which they said there in the Gemara, that regarding a Jewish bandit one despairs and regarding a Cuthean one does not despair, and he thought that a bandit is a gazlan; but it is not so, for that is a thief, as I have written.

And there is one who says that the law follows the Tur, for from the wording of the Rambam in chapter 6 of Gezeilah it is proven that a listim is a gazlan, for on the law of one who rescues from a listim he concludes with the term gazlan, see there. Therefore, he resolves the contradictions from the Mishnah in Kelim to that which they distinguished in the Gemara between an Israelite listim and a Kutite, and that regarding an Israelite he despairs, for this is the reason: because there is a change of domain, as he rescues it from the hand of the listim. And just as it is effective with ye'ush along with a deficient change of name, so too it is effective with a change of domain even with a deficient ye'ush, and we hang it on the assumption that he despaired. And even though in this siman it will be explained that it is not called a change of domain except when the gazlan gives it to him willingly and not when he takes it against his will, in truth we shall explain that he rescues it from the listim by way of conciliation [Taz]. But this does not seem correct, for how could a doubtful ye'ush be effective? For even certain ye'ush, when it occurs after the change of domain, does not effect a purchase according to most poskim; certainly so in a case of doubtful ye'ush even before the change of domain. Furthermore, "rescues from a listim" does not imply that the listim gives it to him willingly, just like "rescues from a fire" or "from a river."

And in my humble opinion, it appears that the law is with the Tur, and also the Rambam holds like him, and it is possible that all the poskim would also agree with him. For behold, in the words of the Rambam, of blessed memory, there are many contradictions regarding this matter. For in the fifth chapter of Ishut he wrote: One who betroths a woman with stolen property, or with theft, or with robbery—if the owners have despaired and it is known that he acquired that object through despair, she is betrothed; and if not, she is not betrothed. Thus far his words. Behold, it is clear from his words that in an ordinary case of theft and robbery, we must know that they despaired, and in an ordinary case it is not despair. And he wrote similarly in the fifth chapter of Issurei Mizbe'ach: One who steals or robs and offers the sacrifice, it is invalid; and if the owners despaired, the sacrifice is valid. Thus far his words. But in the fourth chapter of Terumot he wrote: The thief, and the robber, and the extortionist—their terumah is terumah; and if the owners are pursuing them, their terumah is not terumah. Thus far his words. Behold, it is clear that in an ordinary case it is considered despair. And in the twenty-fourth chapter of Kelim he wrote: A thief who stole a hide and intended it for lying upon, his intention is effective for it and it becomes impure through midras; but regarding the robber, his intention is not effective unless the owners have despaired. Thus far his words. Behold, he distinguished between a thief and a robber according to the opinion of all the poskim.

And in the sixth chapter of Hilkhot Gezeilah he wrote: One who rescues from the hand of an Israelite listim, these belong to him, because the default assumption is that the owners have despaired etc. But one who rescues from the hand of a Cuthean listim is obligated to return it, for the default assumption is that the owners have not despaired etc. And for what reason is the default for an Israelite listim that they have despaired, while the default for a Cuthean is that they have not despaired? Because the owners know that the Cutheans return it even though there are no witnesses that he robbed, but rather through evidence. Thus far his words. And if so, he interprets listim as a gazlan. And he wrote likewise in the fifth chapter: People whose presumption is that they are gazlanim, such as tax collectors and listim etc. Thus far his words. Furthermore, one should be precise that we have not found in the Rambam in all the laws of theft and robbery that he clarifies this law of whether default theft and robbery constitutes yei'ush or not.

Therefore, it appears to me that behold, the reason that an ordinary theft is considered despair and an ordinary robbery is not considered despair is because in a theft, he does not know who stole them and does not know whom to seize, whereas this is not so in a robbery [the Rash and the Rosh in Kelim there]. According to this, when he knows who stole them, such as when people saw him exiting the house of Reuven with vessels under his wings, he does not despair even in the case of a thief. And similarly regarding robbery, there is no set rule in this; for if he robbed him in the presence of people, he does not despair, as he reasons that he will have him seized in beit din. But if he robbed him when it was just between them, he despairs, for a Jewish beit din will not attend to him in the absence of witnesses, and regarding Cutheans he does not despair, as has been written.

And according to this, there is no fixed law in this matter, for sometimes even with a thief there is no ye'ush, and sometimes even with a robber there is ye'ush. And according to this, one who rescues from bandits, and this rescuer does not know the manner of his robbery, it would not occur to him that the robbery occurred in the presence of witnesses, for sometimes even a robber guards himself so that only the victim alone is present, because he fears many people; therefore we say that it is his, for the owners have despaired. But one who buys from a thief or a robber who does not quarrel with the buyer, and presumably it is known to the buyer how the event occurred, therefore the Rambam did not write regarding this whether there is presumably ye'ush or not, for the main point of the distinction is to know if there is ye'ush and shinui reshu, and it is upon the buyer to know and to ask how the event occurred. And sometimes there is ye'ush even with a robber, and sometimes even with a thief there is no ye'ush. But one who rescues from bandits, who takes it from him against his will and does not know how he robbed, we hang it more on the assumption that he despaired, as I have written. And if the buyer did not know at all that it was stolen or robbed, certainly there is no practical difference in this law, for either way: if it was not made known at all, behold he does not know; and if it was made known to him that it is stolen or robbed from Reuven, behold it is in his power to ask and investigate how the theft or robbery occurred, and he will know if there is ye'ush in this or not. But one who rescues from bandits knows that he is a bandit, but he does not know from whom he robbed or in what manner he robbed.

And so too regarding laws pertaining to the thief and the robber himself, such as if he separated terumah, offered a sacrifice, or betrothed a woman, it is also not relevant to explain this, for behold, he knows how he stole or robbed. Therefore, the Rambam only clarified the law that before ye'ush it is not effective and after ye'ush it is effective, and it is upon him to know if according to the matter there was ye'ush or not. And regarding terumah, he only wrote that the terumah is effective so that we should not say that he is one who separates terumah without permission and his terumah is not terumah; rather, if it was after ye'ush, his terumah is terumah. And this is what he wrote, "and if the owners were pursuing him," meaning that if he knows that the owners will pursue him, such that they have not despaired, his terumah is not terumah even for the owners because he separated terumah without permission. And only regarding the law of tumah and taharah, where it is upon the one affected to know if it became tamei or not, and the one affected does not know how he stole or robbed, he ruled that ordinary theft is ye'ush because ordinarily they steal in secret, and ordinary robbery is not ye'ush because most robberies are in public. And do not let it be a difficulty for you why we said regarding one who rescues from bandits that it is his and we hang it on the possibility that he robbed him privately, because in matters of money it is not possible to extract it from him without a clear claim, for behold, we do not follow the majority in matters of money. And in truth, if the owners bring witnesses that he robbed him before witnesses, he must return it to him. [And as for the fact that in the Gemara they raised difficulties from all of these, it is because the primary difficulty there was for Rabbah, that ye'ush is not effective at all, see there and examine carefully].

And according to this, the words of the Tur in siman 368 also align properly, for his intention is not regarding all matters, but rather regarding one who rescues from bandits, which is the subject there. And the proof is that in this siman the Tur himself ruled that ordinary gezelah is not considered ye'ush. And he also explains that which the Gemara distinguished between an Israelite and Cutheans, this is regarding gezelah, for a bandit is a gazlan. And according to this, regarding a thief, even with Cutheans he presumably despaired; since the distinction is regarding a gazlan, and regarding a thief this distinction was not mentioned in the Gemara, therefore it can be said that regarding theft, even with a Cuthean it is ye'ush, for he steals in private and one does not know after whom to search. And according to this, the words of our teacher, the Rema, there are well-settled, as he wrote that ordinary theft is ye'ush even with a Cuthean [and all that the Lechem Mishneh and the Chelkat Mechokek questioned on the Rambam, and the Yam Shel Shelomo and the Shach and the Gra on the Tur and the Rema, is well-settled].

The Tur and the Shulchan Aruch wrote that a change of domain does not occur unless he sold it or gave it to another of his own will; but if one came and took it from the house of the gazlan against his will, this is not a change of domain and it is as if he took it from the house of the owners. And if the nigzal wishes, he may collect from the first or from the second, or half from this one and half from that one. And if this second one paid the gazlan, or if the gazlan forgave him, it is nothing, for the legal standing of the second is only with the nigzal. And there is no distinction in this whether the second knew it was stolen in the hand of the gazlan or did not know; for even if he did not know, since it does not belong to the gazlan, he pays the nigzal, since he did not acquire it by law. And so too the reverse: when the gazlan sold or gave it to him of his own will after ye'ush, even if the recipient knew it was stolen, he has acquired it [Sma]. And when the nigzal is able to collect from whomever he wishes, if he forgave one, it is not considered forgiveness regarding the second, and he may collect from him [Shitah Mekubetzet, beginning of the tenth chapter of Bava Kamma in the name of the Ramah].

And there are those who disagree with this law and hold that there is no distinction regarding a change of domain between whether it changed by the will of the robber or not by his will [ibid. in the name of Rabbeinu Chananel and the Ramah]. And according to the first opinion, it is difficult from what was written in siman 368, that one who rescues from the hand of bandits, it belongs to him when the owners have despaired, for it is despair and a change of domain, even though they took it not by his will; and it is an explicit Mishnah there. And there is one who answered that regarding despair where the owners despaired after it came into the hand of the robber, certainly it is required that the change of domain be by his will. But if the despair was before it came into the hand of the robber, such as if he saw a robber coming toward him and out of his fear he despaired of his objects and the robber took them, despair such as this is similar to the despair of a lost object, and whoever takes it acquires it; for what difference is it to me if he despaired because a river swept it away or he despairs from fear of bandits? And therefore, even if he took it afterward by force from the robber, he acquires it [Netivot HaMishpat], because he acquired it through despair alone as with a lost object. And according to this, we would need to say that it is dealing there with a case where the rescuer knows that the owners despaired before he robbed. However, it is impossible to say so, for if so, even with a gentile the law would be so, and why do we distinguish there between a gentile robber and an Israelite robber? And if we say that regarding an ordinary bandit, when one sees him he despairs, if so, how did the poskim write that an ordinary robber is not considered despair?

Therefore, it appears to me that the reason it is not effective according to the first opinion when it was taken against the will of the gazlan is because just as it is not called a change of domain regarding the gazlan himself because it came into his hand through a prohibition, so too it is not effective for one who took it from the gazlan when it came into his hand through a prohibition—that is, before ye'ush. For this reason, a change of domain that occurs before ye'ush is not effective according to most poskim, as I wrote in siman 353. According to this, if another took it from the gazlan against the will of the gazlan and did not know it was stolen, or even if he knew but took it to keep for himself in any manner, even if the owners had not despaired, his law is also like a gazlan and he has not acquired it even if it was truly after ye'ush, for it came into his hand through a prohibition since his intent was to rob. It is with such a case that the Tur and the Shulchan Aruch [and the Rashba and the Ra'avad at the beginning of chapter 10 there] deal. However, in siman 368, where he comes to rescue from the bandits and his intent is to act according to the law—that if it is still before ye'ush he will return it to the owners, for this is the language of "rescue"—therefore, if the owners despaired, it is certainly ye'ush and a change of domain, for it came into his hand permissibly since his intent was to act according to the law. A proof for this is that in the Mishnah there, it also lists one who rescues from a river, and in that case certainly his intent is to rescue from the river and return it to the owners if it is before ye'ush; so too here when he rescues it from the bandits.

Our teacher, the Rema, wrote that there are those who say that the same law applies if the gazlan sold it with responsibility, or gave it in error, or against his will, it is not called a change of domain. Thus far his words. And the reason is that since he accepted responsibility, it is still as if it were in the domain of the gazlan; and similarly, giving in error is not called giving; and when he gave it to him against his will—meaning that the gazlan forced the recipient to accept it—certainly there is no logic that we should consider this a change of domain [for this reason the Shas there, regarding one whose donkey was taken and he was given another donkey, calls it "yeiush alone," because it was against his will, as the Tosafot wrote in Bava Kamma 67b; see there].

And nevertheless, regarding giving against one's will, even though this is not a change of domain, nonetheless, if he stole his garment from him and gave him another garment, the other garment is his, as will be explained in siman 369. And the reason is explained there because this is like a sale, and this person does not know with certainty that what they gave him is definitely stolen. And the Rambam wrote this reason in the fifth chapter of Laws of Gezelah [and he does not hold like Rashi on the Mishnah there that the beginning contradicts the end, for the Rambam would interpret what is written there "if they despaired" that "unspecified" is not as it appears plainly nor as Rashi explained; and examine this carefully]:

Reuven who stole a food item from Shimon, and Levi came and ate it: if Shimon had not despaired, he may collect from whichever one he desires. Even if the thief fed it to him with his own hands and he did not take it himself, nevertheless Shimon may collect from him [Nimukei Yosef and the Maggid Mishneh], for before despair it remains in the domain of the victim. But if he despaired and Levi came and ate it, he is exempt, even if he took it against the will of the thief. And even though it was explained in section 11 that a change of domain that is against the will of the thief is not considered a change of domain, that is when the stolen object is intact, in which case he is obligated to return it; but since he ate it and destroyed it, he is exempt. And the reason is from that which is written, "and he shall return the stolen object which he stole," which implies that specifically when it is intact he returns it, but when it is not intact he is exempt. And regarding the thief himself, it is obvious that it is impossible to say so, for he is certainly obligated to pay, and consequently it is interpreted as referring to the one who takes it from the thief [Sma]. Furthermore, logically it is so, for since the owners despaired and this person who took it ate it, there is no logic to say that he should have the power after despair to claim money from this one who ate it; rather, he must claim from the thief [Tosafot at the beginning of the chapter there]. Nevertheless, if the thief has nothing with which to pay, he may collect from the one who ate it by way of the rule of Rabbi Nathan if he took it himself from the thief, for he must pay the thief [Mordechai ibid.].

We hold that the domain of an heir is not like the domain of a purchaser, for the heir comes by power of the bequeather and it is as a single domain. Therefore, if the gazlan died, even after ye'ush, and bequeathed it to his sons or to other heirs, it does not constitute a shinui reshut; rather, it is as if their bequeather were still alive. If the gazela is intact and has not been changed, they must return it even if the owners have despaired. If it has undergone a shinui haguf or a shinui hashem, they pay its value just like the gazlan himself. However, if they consumed it, whether during the lifetime of the father or after his death: if they consumed it before ye'ush, they are obligated to pay from their own pocket even if their father left nothing; and if they consumed it after ye'ush, they are exempt from paying, just like any other person who consumed it, as has been explained.

And specifically when their father did not leave assets, but when he left lands or movable property in this time—when we collect even from the movable property of orphans—even if they consumed it after despair, they are obligated to pay. For even if their father sold it or gave it to another, they are obligated to pay even if he lost the proceeds of the sale, as his assets were liened to the victim of the robbery from the time of the robbery. And there is no distinction between adult orphans and minors. And even though we do not attend to the assets of a minor, nevertheless, regarding robbery when there are witnesses, we attend to them even with minors, as I wrote in siman 110. And so too regarding theft. And specifically when the robbery or the theft was clarified by witnesses or if he confessed before his death, but without this, it is obvious that we do not extract from them.

One who robs his fellow in the presence of witnesses, some say that he is not required to return it to him in the presence of witnesses, just as with a loan, and he is believed to say that he returned it to him and takes a shevuat hesset and is exempt. And some say that he is not believed, and it is not similar to a loan, since it came into his hand through a prohibition and he took it with the intent not to return it, so how could he be believed to say that he returned it? The great Acharonim decided according to the first opinion. And it appears to me that even according to the first opinion, this is only when he returned it without the compulsion of a beit din; but if a beit din compelled him to return it and he says that he returned it, he is only believed with witnesses, for it is no worse than what was written in siman 79 regarding one who claims, "You have a maneh of mine," and this one says, "Such a thing never occurred," and witnesses testify that he lent it to him, for he is established as a liar and is not believed to say, "I paid." For it is understandable that when he claims, "I returned it of my own accord," it is possible that he performed repentance; but through compulsion, it is obvious that it is worse than being established as a liar. Furthermore, it is certain that he requires an oath that he returned it, and when he returns it of his own accord, we say that he performed repentance and is able to swear, but under the compulsion of a beit din, he is still disqualified from an oath.

Regarding a gazlan who died and left property, such that the heirs are obligated to pay as has been written, if the heirs said, "We know that our father made an accounting with you," or if they say, "Our father told us that he made an accounting with you and nothing of yours remains in his hand," they are believed. The reason is that even according to the "there are those who say" in the previous section, that he must return it specifically before witnesses, this applies only to the gazlan himself; but his heirs, who are not gazlanim, it is simple that they would be believed to say, "We returned it to you." Therefore, when they also claim a claim of accounting, they are believed through a migo of "we returned it." However, they must swear a shevuat hesset since they claim with certainty [Shach]. And this is specifically if they are adults and claim for themselves, but we do not claim this claim for them; and similarly, we do not claim "perhaps their father returned it," and therefore they also cannot claim "perhaps our father returned it to you" [Sma]. And there is one who says that it is a case of legal doubt [Shach]. And there are those who say that all this is when the gezelah is not known except through the heirs, but if there were witnesses that he stole it, they are not believed to claim a claim of accounting even though they have a migo of "we returned it," because it would be a migo of audacity. And there is one who says that we do say a migo of audacity, as has been written in siman 82 in the rules of migo, unless witnesses now saw the stolen object in their hand, such that they cannot say "we returned it," for then they are not believed in a claim of accounting; and he does not disagree with the first opinion [ibid.] but rather they are explaining the matters.

A gazlan who robbed, and another came and robbed it from him, and a third came and robbed it from the second, the victim of the robbery collects from the third and from his heirs just as from the first. And even if it was after ye'ush, for this is not a shinui reshut as has been written in section 11. And likewise, if the gazlan deposited the stolen object in the hand of another, the victim of the robbery can claim it from him even after ye'ush, and the bailee cannot say to him, "You are not my legal adversary." And even if the gazlan was with him in his work, he is not exempt by reason of shemirah b'be'alim, for the victim of the robbery is the owner [Beit Yosef]: