Siman 367

One who robs his fellow and desires to return the theft, and the victim is not here, he is not obligated to bring the theft after him to his location. Rather, he informs him at his location that his desire is to return his theft to him, and he shall come and take it. And it is not necessary to state this when he did not confess to the theft and witnesses testified that he robbed, but even if the victim claimed from him and he denied it and afterwards retracted and confessed, he is not obligated to pursue the owners to return it to them. Rather, it shall remain in his hand until the owners come and take them, and he is only obligated to inform them beforehand. And it appears that this is specifically when he robbed him here and the victim went to another location, but if he robbed him in the other location where the victim is even now, he is obligated to bring it to him to the location where he robbed him, for all robbers must return to that same location where they robbed [and so it appears in the Shach, siman 386, subsection 8].

That which we have said, that he is not required to bring the stolen object to him, in what case does this apply? When he did not swear. But when he swore falsely and afterwards confessed that he is obligated to pay the principal, a fifth-part, and a guilt offering, as is written in parashat Vayikra, they said that one who steals the value of a perutah and swears to him must bring it after him even to Media, for money will not be considered. And the reason, our Sages, of blessed memory, said [Bava Kamma 103b], is that there is no atonement until it reaches his hand, as it is written: "to whom it belongs he shall give it on the day of his guilt offering." Therefore, even if the thief knows with certainty that the victim of the theft has not despaired, nevertheless, he has no atonement until he returns it to his hand [Shach]. And also in this time, even though there is no sacrifice, nevertheless this law applies, that he has no atonement until he returns it to his hand [ibid.].

The Rambam in the seventh chapter of Gezeilah wrote in this language: But if he swore regarding the value of a perutah or more, he is obligated to pursue the owners until he returns it to them, even if they are in the islands of the sea, because they have already despaired since he swore, and they will no longer come to claim it from him. Thus far his words. And so it was transcribed in the Shulchan Arukh. It is clear from this that if they did not despair, he is not required to bring it to their hand. And they questioned him, for in the Gemara the reason is explained as being because he has no atonement as long as it has not reached his hand; how then could he innovate a reason that was not stated in the Shas? There is one who answered that behold, there are some of our teachers who hold that specifically when he confessed not in his presence must he bring it to his hand when he swore, but when he confessed in his presence and the victim said to him, "Let it be in your hand until I take it," he is not required to bring it to his hand, and he has atonement even while it is still in his hand [Tosafot 104a, s.v. Amar], for since he said to him, "Let it be in your hand," it is like a deposit with him. But the Rambam holds that even when he confessed in his presence, he must bring it to his hand, and for this he explains the reason that when he swears, the owners despair even when he confessed in his presence because they no longer believe him [Ketzot HaChoshen]. Yet it is still not understood, for even so, why is this reason necessary, since it is a decree of the Torah, "to whom it belongs he shall give it," that he has no atonement until he returns it to his hand? Therefore, it seems to me that the Rambam found it difficult: why did the sages say regarding one who did not swear that he is not required to bring it to his hand, which implies that by the essential law it is so, and not because of the "ordinance of the penitents" [Shach, subsection 2]? For behold, we have no other verse regarding the return of a stolen object except for this verse, "and he shall return the stolen object," and likewise the verse in Naso, "and he shall return his guilt offering in its principal amount," and these verses deal with one who swore. If so, from where do we know to divide between one who swore and one who did not swear? And one cannot say that regarding one who swore the verse in Naso revealed this, as it is written, "to whom it belongs he shall give it on the day of his guilt," that we require it to reach his hand, but not when he did not swear; for in any case, once this verse revealed this, we also learned the explanation of the verse "and he shall return the stolen object," which is also written in this context of one who swore, that the intent is specifically to return it to his hand. If so, from where do we know that without swearing it is sufficient with notification alone? For behold, we have no other verse regarding the return of a stolen object. Therefore, the Rambam, of blessed memory, explains that it was established by our sages, of blessed memory, that what the Torah required—to return it only to his hand—is not a decree without a reason, but rather there is a reason for this. And this is the explanation of the verse: "and he shall return the stolen object" until the victim is certain that his stolen object will be returned to him. Therefore, when he did not swear, he is certain by his notification alone, but when he swore, he no longer believes him even when he confessed in his presence, unless he brings it to his hand. And this is what the other verse revealed, "to whom it belongs he shall give it on the day of his guilt," meaning, since he became guilty through an oath, the victim no longer believes him until he gives it into his hand. And regarding the law when the victim said to him, "Let it be in your hand," it is possible to say that even the Rambam admits that he is not required to bring it to him [see Shach].

And all that has been explained is by Torah law, and even if he returned the entire theft except for the value of a perutah of the principal, the robber is obligated to bring it to the hand of the victim since he swore falsely. But for less than the value of a perutah, he is not required to follow after him; rather, the victim shall come and take it. And even though he stole objects and returned to him the entire theft and there did not remain in his hand only less than the value of a perutah, we are not concerned that perhaps it will increase in value and stand at the value of a perutah, resulting in him not having fulfilled the obligation of returning; rather, he has atonement immediately and may bring his sacrifice. And if it increased in value before the atonement, some say that he is not required to return it to him further, since once it was not the value of a perutah it is like a waiver. And some say that he must return it [Tur], and so it is implied from the Rambam [Beit Yosef]. And it is possible that according to this view, even without having sworn, when he returned the entire theft except for less than the value of a perutah and it increased in value, he must return it, for behold, it increased in value while in the domain of the victim. But if he stole less than the value of a perutah from the outset and it increased in value, he does not need to return it, for immediately when he stole, he waived it to him [it appears to me]. And so too, if the victim waived the entire theft to him, even where he had sworn, it is considered atonement and he brings his sacrifice, for a waiver does not require a kinyan.

Since it is a difficult matter to bring the stolen object to a distant land when the victim is there, the sages enacted, for the sake of the "enactment of the penitents," that he should place the stolen object with the beit din in his city and command them to send it to his hand whenever they wish, and it is like returning it to the hand of the victim. According to the Rambam, it could be said that this is so by Torah law, for since according to his reasoning it is because he despairs, when it is with the beit din he no longer despairs. Likewise, if the beit din appointed a messenger before witnesses and he gave it to the messenger of the beit din, he has fulfilled his obligation regarding his theft and is exempt from liability [Sma]. However, he should not give it to the son or the messenger of the victim unless he appointed them as messengers before witnesses, as is written in siman 121. And even if he did not swear, he also has not fulfilled the obligation of returning it when he delivered it to the hand of the son of the victim or to his messenger without witnesses, as long as they have not delivered it to the hand of the victim [ibid.], and he is liable for its safety.

A gazlan who robbed, and the victim of the robbery died, and the gazlan desired to perform repentance, he shall return it to the heirs of the victim and fulfills the obligation of returning, for every heir stands in the place of his testator. And even if he had sworn and died, and he returns it to his heirs, he has atonement; and he pays the principal and the humash to the heirs and brings his sacrifice, and it is atoned for him. When the robbery is intact, he returns the robbery itself to them, and if it was lost or changed with a change that is not reversible, he shall return the value to them just as he would have returned it to their testator.

The Rambam, of blessed memory, wrote [there]: Anyone who is liable for money to his fellow Israelite and denied it and swore falsely, he is obligated to return to him the principal that he denied and the addition of a fifth, and he is obligated in a sacrifice, and it is called an asham gezelot. And it is the same whether one robs, or withholds, or steals, or was lent to, or had a deposit placed with him, or found a lost object and denied it, or if there was a partnership between them and money remained with him for the other, or if he performed labor for him and he did not give him his wage. The general rule of the matter: in any case where if he had confessed he would have been obligated to pay by law, and he denied and swore, he pays the principal and a fifth, as it is said: "And he denied," etc.

In what case are these words said? When he was obligated to pay on his own account. But if he was obligated to pay on account of his father, he does not pay a humesh. How so? For example, if his father robbed or stole, or was indebted to others, and the son knows and the son denied and swore, and afterwards he confessed, he pays the principal alone; as it is said, "that which he robbed," and we expound: for his own robbery he adds a humesh, but he does not add a humesh for the robbery of his father, even when the denial and the oath were after the death of his father.

And specifically when the stolen object is no longer in existence, but rather lands remained from his father and he is obligated to pay, he does not pay the principal and the humash, for the humash is for the oath, and one does not swear regarding lands, as written in siman 95 [Rashi, Bava Kamma 105a]. And so too even when the stolen object is in existence, but it was deposited in the hands of others and he did not know of this and did not swear falsely, there is no humash, and he also does not bring a korban, for where there is no humash there is no asham. But when the stolen object was in the hand of the son, he pays principal and humash and brings an asham gezeilot. But when the father swore and confessed and died, the son pays principal and humash when properties remained from his father, but he does not bring a korban, for there is no korban after death [see Tosefta Bava Kamma chapter 10]. And when properties did not remain from his father, he does not pay even the principal, for he is not obligated to pay his father's debts from his own, unless it is his will to merit his father so that he will not be punished in the world of truth, for then he pays the principal and the humash on his behalf. And if the father swore and died and the heir confessed and properties remained from his father, he pays the principal alone and not the humash, for the humash comes upon the confession that follows the oath. And the Rambam, of blessed memory, omitted the entire matter of properties remaining, and I do not know why. And one who swears to a Cuthean pays the principal and not the humash, as it is said [Leviticus 5:21]: "and lied to his fellow." And so too one who swears to a minor, for one does not swear regarding the claim of a minor, and so too to a deaf-mute or an imbecile, as written in siman 96. But one who swears to a slave when he has money over which his master has no authority pays the humash, for he is called "his fellow" as he is obligated in mitzvot [Bava Kamma 88a]. And sometimes one swears regarding the claim of a minor, as written in section 18.

The chomesh is from the outside, one of four of the principal, such that if he robbed the value of four and swore falsely, he pays five. If the stolen object was intact, he returns it and gives the value of a quarter of it. First, he must pay the principal and the chomesh, and afterward he brings his asham. If the victim of the robbery is in the provinces, he leaves the principal and the chomesh in the hand of the beit din in his city and brings the asham. If he brought the asham before he paid the principal, he has not fulfilled his obligation and is required to bring another asham after he pays; however, the chomesh is not a prerequisite. Therefore, if he gave him the principal but did not give him the chomesh, or if he waived the principal for him but did not waive the chomesh for him, it does not prevent the sacrifice. One does not need to bring the chomesh to the place of the victim of the robbery; rather, it shall remain in his hand until the victim of the robbery comes and takes it.

One who returns the principal to the owners and denies the fifth a second time and swears regarding it, the fifth becomes like principal in every regard and he pays another fifth upon it, as it is said: "and its fifths he shall add to it," teaching that he adds a fifth upon a fifth until the fifth that he denies and swears upon is diminished to less than a perutah. He must bring a fifth and an asham for every oath. And one who had a deposit in his possession and claimed that it was lost and swore, and then confessed that it is in his possession, and again claimed that it was lost and swore, and then confessed that it is in his possession, he pays a fifth for each and every oath along with the one principal, as it is said: "and its fifths he shall add to it," teaching that he pays several fifths for one principal, and he must bring an asham for every oath.

One who swears regarding the denial of money does not pay a humash until he confesses on his own. However, if witnesses came and he persists in his denial, he pays the principal alone based on the witnesses and does not pay the humash, for the humash along with the sacrifice are brought for atonement, and they are only brought based on his own word. It has already been explained in siman 352, section 8, that this oath applies whether in a beit din or not in a beit din; see there.

Since it has been explained that a gazlan who swore is obligated to perform a greater restoration than when he did not swear, therefore, even if after the oath it occurred that the stolen object became his according to the law—such as if he stole from one of his testators and swore to him, and his testator died—nevertheless, he is obligated to remove the principal from his possession along with the chomesh and he brings a sacrifice so that he may have atonement. And the reason appears to be that since it is impossible to offer the sacrifice without the restoration of the principal, as has been written, therefore if the stolen object remains with him, even though now this is not stolen property, nevertheless he has also not fulfilled the mitzvah of restoration and he cannot bring his sacrifice. And even in this time when there is no sacrifice, nevertheless it is proper for him to fulfill the mitzvah of restoration [it appears to me]. And according to what I have written, it is well-understood why the sages, of blessed memory, were lenient regarding the gazlan in this, that he may act so as not to lose, as will be explained; for since this is only in order to fulfill the mitzvah of restoration alone, we are not concerned if from the side he does not lose by this.

This is the wording of the Mishnah [108b]: One who robs his father and takes a false oath to him and [the father] dies, he pays the principal and the fifth to his [the father's] sons or to his brothers; and if he does not wish [to forgo his portion] or if he has nothing, he borrows and the creditors come and collect. Rashi explained that he pays the sons of his father, who are his brothers, or if he has no brothers, he pays the brothers of his father. And it implies that he should not give it to the sons of the robber, for the restitution is not recognizable in this. And if he does not wish to forgo his portion, or if he has no property such that it would be in his power to forgo his portion, he borrows from others according to the amount of the robbery, and they collect from the robbery itself; or if the robbery no longer exists, they receive from him according to the amount of the robbery, and he fulfills with this the mitzvah of restitution. And if he does not find an heir present before him, and also has no one from whom to borrow, the sages of blessed memory said that he should cast the robbery into the charity purse and say "this is from the robbery of my father" so that the restitution will be recognizable. And likewise, he may give it as a gift to another and say "this is from the robbery of my father." But when the heir or the creditor takes it, he does not need to say "this is from the robbery of my father," for even without this the restitution is recognizable since another takes them; but when he gives it, he must say [it] (as is implied from Rashi there). And with the explanation of Rashi, the Rosh and the Tur agreed.

The Rambam in chapter 8 wrote: One who robs his father and swears to him, and the father dies—if the stolen object is not intact or has changed, he makes an accounting with his brothers regarding the principal and the fifth; and if the stolen object is intact, he is obligated to remove the stolen object itself from under his hand, therefore he gives the stolen object to his brothers and makes an accounting with them. And if he has no brothers, such that it is found that this robber alone is the heir, he removes the stolen object from under his hand to his sons. And if this son who is the robber has no sons, he gives them to a creditor for his loan or to charity; since the stolen object itself has left his hand, he is exempt, even though he gave it as a gift or paid his debt with it, provided that he informs them and says, "This is the robbery of my father." Thus far his words. Our teacher, the Beit Yosef, transcribed it in section 5. And it is not his intent to explain "to his brothers" as meaning his father's brothers, for since they are not heirs by law, why did the sages of blessed memory require him to return it to them? Let him return it to whomever he wishes. Rather, it is perforce that they are his own brothers, the sons of the deceased, who are also heirs. And the Rambam holds that there is no mitzvah in this, even ab initio, that he should lose the value of the stolen object since it is now his, and he only needs to fulfill the mitzvah of restitution. Therefore, when he returns it to his brothers, he makes an accounting with them and withholds other money from the inheritance corresponding to the stolen object according to the accounting of the brothers. And if the stolen object is not intact, he takes from his portion according to the value of the stolen object with the fifth, and the brothers take this by way of restitution, and he takes from another place corresponding to this according to the accounting of the brothers that he has. But when he delivers it to his sons, an accounting is not relevant, for behold, he himself takes it, as his sons are considered like himself. Nevertheless, he holds that if there are brothers, it is better that he deliver it to the brothers than to his sons, as the restitution is more recognizable. And there are some of our teachers who hold that his sons take precedence regarding the matter of restitution, for since he only needs to fulfill the mitzvah of restitution, why should he deliver them to others and not to his sons? [Tosafot ibid.] And according to the Rambam, there is no practical difference in this, for since he holds that he makes an accounting with his brothers, behold, he loses nothing. And that which the Mishnah said, "If he has none," he explains as "if he has no brothers or sons," and in his version, it did not write "And if he does not want." [Bach] And all this is when he swore, but without swearing, nothing is required, as I wrote in section 13. And even though there are those who have a doubt about this, nevertheless, such is the primary ruling in law, and so wrote the Rashba in a responsum [the Mishneh LaMelekh cited it there].

And that which our teacher, the Rema, wrote, "And some say that he does not take anything corresponding to the gezelah, and if he is poor and cannot forgo his portion, he borrows from others and they come and are paid from his portion," thus far his words, this is the approach of Rashi that we explained. And even according to this approach, the matter depends on his will, as we learned in the Mishnah, "And if he does not want." And I do not know why the Tur and the Rema omitted this. And according to this approach, specifically when he first borrows from others and they are paid from his gezelah is it called hashavah, but that he should take afterwards corresponding to the gezelah, they do not hold like the Rambam, for in this he does not fulfill hashavah at all.

This portion of robbery and swearing is repeated also in Parshat Naso, as it is written: "A man or a woman... and they shall confess their sin which they have done, and he shall return his guilt-offense in its principal, and add its fifth unto it, and give it unto him against whom he has trespassed." And this "guilt-offense" is the principal. And it is written there: "But if the man have no kinsman to whom restitution may be made for the guilt, the restitution for guilt which is made unto the Lord shall be the priest's; besides the ram of the atonement, whereby atonement shall be made for him." And our sages, of blessed memory, expounded: Is there any person in Israel who has no kinsmen? Rather, the verse deals with a case where the victim of the robbery was a ger and died, and did not leave sons or daughters to inherit him, and during his lifetime the robber denied the robbery and swore, and afterwards he desires to perform repentance; he gives the principal and the fifth to the kohanim of that shift serving in the Beit HaMikdash, and afterwards he brings a guilt-offering sacrifice and atonement is made for him. And because the Torah called the principal of the robbery "guilt-offense," its law is like a guilt-offering, which they do not offer at night but only by day; likewise, he does not return the principal at night. And the fifth, it appears to me that he can return at night. And it is necessary that a perutah's worth reaches every kohan in that shift, as it is said: "restitution... unto the priest," and it is not written "unto the priests," which teaches us that there must be restitution to each and every kohan. And just as with every sacrifice the members of the shift must divide it among themselves, and they do not divide sacrifice against sacrifice—that this one takes the sacrifice of this one and this one the sacrifice of this one—as the Rambam wrote in the tenth chapter of Ma'aseh HaKorbanot, likewise they do not divide robbery against robbery, but rather in every robbery they divide it among themselves. And so too, he does not return it to them little by little, but rather the entire robbery at once. And thus our sages, of blessed memory, said [ibid. 110a]: If he returned it in halves, he has not fulfilled the obligation, just like a sacrifice. And the Rambam, of blessed memory, omitted this, and I do not know why.

And before he returns it to the kohanim, the robber is obligated to search perhaps there remains offspring from the victim of the robbery and he shall return it to him. However, when the victim of the robbery was a minor, he does not need to search after him, for a minor does not father children. Therefore, it says "man" in the parsha, meaning to say, for a man you must search after him to see if he has a redeemer, but not a minor. And one should not ask why the Torah must exclude a minor because he does not father children, for is this law not only in a case where one swore, and one does not swear upon the claim of a minor, as I wrote in section 9? However, you find it when he jumped and swore, or when he swore by the testimony of one witness [Tosafot Sanhedrin 68b, s.v. katan]. And one should not ask from where a minor has money, for he has no power of acquisition; however, it has already been explained in siman 243 that with the knowledge of another who transfers ownership, a minor has the power of acquisition according to Torah law [ibid.].

And even a kohen himself who stole it, and the victim of the theft died and has no heirs, the kohen does not merit the theft that is in his hand; rather, he must remove it from his hand for all his fellow kohanim, the members of the mishmarah. And even if the kohen was from that same mishmar, he is forbidden to withhold it for himself, and he does not take a portion at all [it appears to me]:

The kohanim regarding this theft are like recipients of gifts; therefore, one who steals chametz from a convert who has no heirs, and Passover passed over it, is obligated to give the kohanim its value as of the time of the theft. This is so even though if the victim were alive, the thief would say to him, "Here is yours before you," as is written in siman 363. However, since the Torah granted this to the kohanim as priestly gifts—as it is written in parashat Korach regarding priestly gifts, "which they shall return to Me," and this refers to the theft that was explained, regarding which the language of "returning" is applicable [Zevachim 44b]—and since it is now worth nothing, this is not a gift, for it is forbidden for benefit. When the kohanim receive them, they are like their own property, and they may do with it what they wish [ibid.]. This is not like most holy sacrifices or lesser holy sacrifices, with which one cannot betroth a woman and the like.

The kohanim do not offer the asham sacrifice until the robber returns the principal, but the fifth does not impede, for if he gave the principal and offered the asham, he has attained atonement for him, as the fifth does not impede the atonement. And this matter we learned from hekdesh, for if one benefited from hekdesh he is liable for the principal, the fifth, and an asham me'ilot, and it is written there, "with the ram of the asham and it shall be forgiven him," and "ram" is the sacrifice and "asham" is the principal, and we learned that the sacrifice and the principal impede but the fifth does not impede. And nevertheless, he is obligated to give the fifth after the atonement, and if not, he has not fulfilled his obligation in what the Torah decreed upon him; and even though he has atonement for the sin of the oath, the sin of the robbery is not atoned for without the fifth.

Since it has been explained that one may not offer the sacrifice before he has given the principal, therefore, regarding the robbery of a convert who has no heirs, the kohanim must be careful not to receive the sacrifice before the principal. In the Temple there were twenty-four mishmarot, and they were arranged according to the order of the Sabbaths. The robber may give the principal to the serving mishmar and wait regarding the sacrifice for the second mishmar. Even though it is a mitzvah for a person to bring his sacrifice immediately when he becomes obligated in it, nevertheless, ex post facto, if he waited for the second mishmar, he has fulfilled his obligation; the first mishmar acquired the money and the second the sacrifice. The fifth-part he may pay afterward even to a third or fourth mishmar [it appears to me]. If he gave the money to the first mishmar and gave the sacrifice immediately to the second mishmar while the time of the first mishmar had not yet ended, the members of the second mishmar must return the sacrifice to the first mishmar, for the second may not receive it outside the time of their mishmar. If he gave the sacrifice to the mishmar during their mishmar, and afterward during the second mishmar he gave the money to the second, we penalize the members of the first mishmar who received the asham before the money, and they must return the asham as well to the second. It appears to me that even if they received the fifth-part they must return it; even though the fifth-part does not impede the atonement, nevertheless, since they acted unlawfully regarding the asham, we penalize them regarding everything. If they already offered the sacrifice, he must bring another sacrifice, for an asham that was offered before the bringing of the principal does not fulfill his obligation, and the asham is invalid, and the kohanim only acquired the hide [end of the chapter HaGozel].

The Rambam, of blessed memory, wrote [ibid.]: If he gave the money to one of the watches and the asham to the watch whose Sabbath it was, he shall return the money to the asham for the men of the fixed watch, for the watch that took the money not during its Sabbath did not acquire it and it is removed from their hand. Thus far his words. And he holds that even though they received the money before the asham, nevertheless, since they did not receive it during the time of their watch, they must hand it over to the members of the watch, for the Torah granted it to them. And if he gave the asham first and the members of the watch received it, and afterwards he gave the money to priests whose watch it is not now, we penalize the watch that received the asham before the money, and they shall hand over the asham to those who received the money and they shall offer it during their watch [at the end of chapter HaGozel according to the interpretation of Rava, and the sages hold so, see there. And the Rambam, of blessed memory, omitted several laws and it requires further study, and also the Yam Shel Shelomo wondered about this. And see there in the Mishneh LaMelekh who is uncertain if waiver is effective, and it appears to me that according to the Rabbis it is not effective, for only according to Rabbi Yehuda, that the penalty is because of a watch that is not theirs, is waiver relevant; but according to the Rabbis, that the penalty is because they transgressed the words of the Torah by receiving the asham before the money, waiver is not effective, and examine this carefully]:

The Rambam wrote [Chapter 8, Halacha 10]: One who robs a convert and swears to him, and the convert dies, and he set aside his asham and his restitution to bring them up to the priests, and the robber died before atonement, behold the children of the robber inherit the money of the robbery or the robbery itself, and the asham shall graze until it sustains a blemish. And if he gave the money to the men of the watch and died before atonement, the heirs of the robber cannot remove it from the hand of the priests, as it is said [Numbers 5:10], "Whatever a man gives to the priest shall be his." And even if the robber was a minor whose gift is not a gift, the heirs do not remove it from the hand of the priests. Thus far his words. And this which he wrote, that even regarding a minor they do not remove it from the priests, I do not know its source; on the contrary, in Yalkut Naso it excludes "a man" and not a minor. And it is possible that his reasoning is because in the Gemara [ibid.] they said that money effects half of the atonement, and this minor desired that he should have atonement, therefore the heirs do not have the power to prevent his atonement.

Nevertheless, it is not understood how it is possible for there to be a minor who is a gazlan, for this law can only exist in a case of one who swore and confessed, who is liable for the principal, the fifth, and an asham, and a minor is not subject to punishment such that he would bring a sacrifice for the oath. And granted that he must return the stolen object itself to the victim when the theft is intact, as is written at the beginning of siman 349, but to bring an asham sacrifice for his oath, we certainly do not accept it from him, for a minor may bring an olah and shelamim but not a chatat or an asham [Yerushalmi, chapter 1 of Terumot]. And it must be said that the Rambam holds that since the money effects half-atonement, if the minor says, "I desire to return the theft and give to the kohanim," we do not prevent him, since his desire is for this atonement, and it is no worse than an olah or shelamim which he has the ability to sacrifice, and all the more so money which has no sanctity at all; therefore, the heirs do not remove it from their hands.

According to the opinion of the Rambam, of blessed memory, this law that one must give the principal, the fifth, and the asham to the kohanim applies only when he did not confess during the lifetime of the victim of the robbery. However, if he confessed during his lifetime and established it against himself as a loan, and he died afterward, the robber has acquired that which is in his hand, and he only needs to remove the stolen object from his possession to fulfill the commandment of returning it, but he does not lose it, just as in the case of one who robs his father and swears and his father dies, as has been explained according to the opinion of the Rambam. For he wrote after the law of robbing one's father, and this is his wording: And so too, one who robs a ger and swears to him, and then confesses to him and establishes everything against himself as a loan, and afterward the ger dies, even though he acquired the stolen object, he is obligated to remove it from his possession. In what case does this apply? When he confessed in the interim. But if he robbed a ger who has no heirs and swore to him, and the ger died, behold, he is obligated to pay the principal and the fifth to the kohanim of that watch and brings his asham, and afterward he attains atonement. Thus far his words. [And many have raised difficulties against him from the discussion of the Gemara, but it seems to me that he interprets that which Rabbi Akiva said in Bava Kamma 109a, "he has no remedy until he removes the stolen object from his possession," the intention is not to pay the kohanim, for "until he removes" implies as in the case of robbing one's father. And that which is written there, "and established it against himself as a loan," it is automatically so, since he confessed during his lifetime and did not return it to him, it is perforce an establishment of a loan according to the conclusion of Rava. And that which is written there, "rather, how do you find the case of robbing a ger etc.," he asks according to everyone, and not according to Rabbi Yose HaGelili, and it does not refer to what was above, and examine this.]

But according to many of our teachers it is not so, for even if he confessed during his lifetime, he is obligated to give the principal and the humash to the kohanim and to bring a sacrifice. Therefore, in this time, he is obligated to give to tzedakah according to the measure of the theft, and humash is not applicable in this time. This is the wording of the Tur and the Shulchan Aruch: One who robs a ger and swears to him, and he dies without heirs, even if he confessed to him and established it upon himself as a loan, even though he acquired the theft, he is obligated to remove it from his possession. Thus far their words. And according to the Rambam, its explanation is that he should not lose anything, just as with the theft of his father; but according to the other poskim, he is obligated to remove them for tzedakah. And according to the Rambam, he is not obligated to give to tzedakah except when he did not confess during his lifetime [see Sma and it requires further study, and examine closely]. And know that kohanim cannot forgive the robber, since the Merciful One called it "atonement" [Tosafot 110a, starting with "Kesef"].

Slaves, documents, and lands are not subject to the addition of a humash, as it says, "and deals falsely with his fellow regarding a deposit," and everything stated in the matter refers to movables which are themselves monetary value; this excludes lands, and slaves who are equated to lands, and documents which are not themselves monetary value. And likewise, all these regarding the robbery of a convert during the time of the Mikdash who has no heirs, they do not return to the kohanim. And the law of humash and an asham offering applies only when he admits on his own, but when he is found liable based on witnesses, there is no humash or asham even when he has sworn. And some say that regarding the theft from a convert during the time of the Mikdash, when witnesses came and he admitted and the victim died, he pays the principal and a humash to the kohanim and not kefel, for the Torah did not grant the kohanim merit in kefel; but if he did not die, he pays kefel and not a humash, for once witnesses came he became liable for kefel, and since he is liable for kefel there is no humash. However, when he dies, since he does not bequeath the kefel to the kohanim, and since the kefel is removed, he pays a humash [Novellae of the Rashba ibid.]. And some say that once witnesses have come, humash is no longer relevant in any case [Shitah Mekubetzet in the name of the Rosh].