Siman 365

One who robs one of five people and does not know which of them, and each one says, "He robbed me," even though there are no witnesses there that he robbed, behold, each of them takes an oath that he robbed him and he pays each and every one. And even though the robber claims against each of them a claim of "perhaps," nevertheless, since against all of them he claims with certainty that he only robbed one of them, therefore they must take an oath. And it is similar to a deposit in siman 300, where in a case where he should have been precise, he pays both of them; and all the more so regarding robbery, that he is obligated to pay each and every one by means of an oath. And even though it has been explained many times that they were lenient toward the robber because of the "ordinance of the penitents," this is regarding the matter of payments, such as whether he pays the value or whether he acquires the improvement; but here, if we were lenient toward him, he would not pay the victim the principal of the robbery, and only a fifth of the principal would reach him, it is impossible to be lenient toward him in this. And that which will be explained in siman 366, that we do not accept from a robber who comes to perform repentance, that is regarding a robber whose entire business was in robbery and when the stolen object is no longer extant, as is written there. And there is one who instructed that according to the law, he places the stolen object between them and departs, but such is not the opinion of most of the poskim. And so ruled the Rif, the Rambam, and the Rosh, and so our teachers, the authors of the Shulchan Aruch, left it as an anonymous ruling. And it appears that even a claim of "kim li" like those who disagree, the robber cannot claim [see Shach and it requires further study].

And likewise, if he said, "I robbed two people—one of a maneh and the other of two hundred," and each one claims two hundred from him, he pays two hundred to each one, and both shall swear and take, as was written regarding a deposit there; for in a case where he should have been precise, he pays two hundred to each one, and all the more so regarding robbery.

And all this is when they claim from him with certain claims, but if they do not claim from him because they do not know, but rather the gazlan says to them, "I robbed one of you of a maneh and I do not know which one," according to the law he only gives a maneh and they divide it between them. And we do not say that it should be placed aside until the matter is clarified or until Eliyahu comes, as in the case of a purchase in siman 222 and a deposit in a place where he was not required to be precise in siman 300; for it is different there, since each one claims with certainty and perforce there is a deceiver among them, therefore it shall be placed aside. But here, where they do not know with certainty and there is no deceiver, they shall divide it [Shach]. And there is one who says that according to the opinion of the Tosafot and the Rosh at the beginning of Bava Metzia, one cannot compel his fellow to divide since the division cannot be the truth [Ktzot HaChoshen]. And this is not clear, for this is specifically when they claim with certainty, such as when this one says "I wove this garment" and this one says "I wove it," and not when they claim with uncertainty; and it is like a legal doubt when neither of them is in possession, as was explained in siman 139, that they divide. And it appears that even seizing does not help, since they claim with doubt, and seizing in a claim of doubt such as this is not considered seizing according to everyone.

And this is specifically according to the law, but if the robber comes to fulfill his obligation before Heaven, he must pay each and every one even when they claim "perhaps." And even though regarding a deposit in such a case he is exempt even from fulfilling his obligation before Heaven, as was written in siman 300, it is different there because they should have been precise. Therefore, there is one who says that this is specifically when he says "I robbed" not in the presence of the owners, but when he robbed in the presence of the owners, he is not obligated to return to each one even when coming to fulfill his obligation before Heaven, because the victim should have been precise [Shach]. And they disagreed with him, for the primary "he should have been precise" applies at the time of the deposit, but regarding robbery it is not relevant to be precise at the time he robbed him, for he is afraid of him, and also he does not know that he will return it to him. Furthermore, regarding robbery, it is certain that he must penalize himself when coming to fulfill his obligation before Heaven, and such is the primary ruling [and this is the intention of the Ma'ayan Ganim on HaMafkid, letter 70, and the Ktzot HaChoshen].

And in a case of robbing a maneh from this one and two hundred from that one, and they did not claim from him, he is also obligated to give two hundred to this one and two hundred to that one if he comes to fulfill his obligation toward Heaven. But by the law, he gives a maneh to this one and a maneh to that one, and one maneh shall be set aside. And we do not say that they should divide it as in section 3 if both of them say that they know regarding one maneh but regarding the second maneh they do not know, because we fear that since they know regarding one maneh, they should have also known regarding the second maneh, and perhaps there is a deceiver among them who knows that he only robbed a maneh from him and wants to take from the second maneh as well. Therefore, if they say they do not know at all, even regarding one maneh, they divide the third maneh between them [Shach]. And according to this, if one says "I knew regarding a maneh but regarding the second maneh I do not know" and the second says "I do not know at all," he would need to give the two hundred to the one who does not know at all, for the one who knows regarding the maneh should have also known regarding the second maneh, and it is evident that he is a deceiver. And he does not need to give the owner of the maneh more than a maneh even if he comes to fulfill his obligation toward Heaven. This requires further study as to the law.

If Reuven says to Shimon, "I robbed your father and I do not know if it was a maneh or two hundred," or if he said to Shimon and Levi, "I robbed the father of one of you of a maneh and I do not know from whom," it has not been explained in the poskim if he is obligated by law to return a maneh to each one. It appears to me that by law he is obligated, for even though regarding a deposit he is only obligated in order to fulfill his duty toward Heaven, it is different there because he did not sin; but regarding robbery, he surely sinned. And even though when they do not claim from him the law is equal as in a deposit, as I have written, that is when he said, "I robbed one of you," where there is a deficiency in that they do not know, but regarding their father, how would they know? And there is a proof from the Mishnah in HaMafkid [37a], as it was taught: If he said to two people, "I robbed one of you of a maneh and I do not know which one," or "The father of one of you deposited a maneh with me," he gives a maneh to this one and a maneh to this one. And the Gemara established it in a case where they did not claim from him and where he comes to fulfill his duty toward Heaven. And from the fact that it was taught regarding robbery in the case of themselves, and regarding a deposit in the case of their father, we learn from this that regarding robbery in the case of their father, he is obligated by law.

If one robbed someone and does not know if he returned it to him, even though he does not claim it from him, he is obligated to pay him if he wishes to fulfill his duty toward Heaven. However, if he said to someone, "I do not know if I robbed you or not," even if he wishes to fulfill his duty toward Heaven, he is not obligated to pay him, as was written in siman 75, that "I do not know if you lent to me" is exempt by law; and to fulfill his duty toward Heaven, if he claims it from him, he is obligated, and if not, he is exempt.

It is a simple matter that in all these cases where he must return to both of them according to the law or to fulfill his duty toward Heaven, this is when they do not forgive him. However, when both of them forgive him regarding the doubt, he is exempt even from fulfilling his duty toward Heaven. And once they have forgiven, they cannot retract, for forgiveness does not require a kinyan. It is proper for the victims of the robbery to forgive him so that he will not need to pay more than what he robbed, if they are God-fearing people, so that they do not stumble in a doubt of robbery and so as not to discourage those who wish to repent. And if regarding one victim it is certain that the two hundred are his, and for the second it is a doubt, he shall pay the one who is certain, and the one with the doubt may impose an oath of acceptance upon the one who is certain.