Siman 369

The Tur wrote: It is forbidden to purchase any item from a robber, and it is forbidden to strengthen his hand or assist him in any matter, because he is strengthening the hands of transgressors. Thus far his words. And he wrote similarly in siman 356 regarding a thief, that it is forbidden to purchase any item from a thief. However, the Rambam, of blessed memory, wrote that it is forbidden to purchase the stolen object [from a thief] or the robbed object, and it is forbidden to assist him regarding its alteration—meaning, so that there will be a change of domain along with despair of recovery which would acquire the robbed object—and anyone who does these things or their like strengthens the hands of transgressors and violates "do not place a stumbling block before the blind." Thus far his words. And it appears from his words that it is only forbidden to purchase from him when one knows that that specific item is robbed; and even though it is forbidden to benefit from him from any of his property, as will be explained, nevertheless, purchasing is not such a significant benefit. And similarly, regarding assisting him, there is no prohibition except regarding the robbed object itself. But according to the Tur, it is forbidden to purchase any item from them or to assist them in any matter. [And in Bava Kamma 119a, regarding from when it is permitted to benefit from him, there is a version "to purchase," and see what I wrote in siman 58, section 2; and according to this, when he has a minority of his own property, it is permitted according to everyone, as will be explained with the help of Heaven]:

One who purchases movable property from a robber before despair of the owner, his law is as written in siman 356 regarding a thief: that if he purchased from a robber who is not famous, they applied the market ordinance to him, such that he takes the payment from the victim of the robbery and returns the stolen object to him, and the victim of the robbery then returns and sues for his money from the robber. And if he is a famous robber, he must return it to the owners without payment, and he shall sue the robber. And even according to those who say there that they applied the market ordinance even to a famous thief, regarding a robber they admit that since he robs in public, they did not apply the market ordinance to him [Bach]. And there is a presumption that everything found in his possession is stolen. And since the victim of the robbery cries out over his stolen property, even if the robber denies him, the matters are recognizable that the victim of the robbery speaks the truth; which is not the case regarding a thief, for since it is not common at all times, the victim of the theft must bring proof regarding his theft, for it is possible that this object is not stolen [Perisha].

If one took it after despair, he acquires it through despair and change of domain. According to most poskim, this is specifically when the despair preceded the change of domain, but according to the Rambam, of blessed memory, there is no distinction in this, and according to him, one must return the value. However, according to most poskim, this is not so, as I wrote in siman 353. It has already been explained there and in siman 361 that even if he knew it was stolen or robbed, he acquires it even though he committed a transgression; see there.

It is forbidden to derive benefit from a stolen or robbed object even after despair, for despair alone does not effect acquisition as has been explained there, and the benefit this person derives is not a change of domain since it is still in the possession of the robber. Furthermore, regarding deriving benefit, there is a prohibition even when one acquired it through a change, as will be explained. How so? If one knew that this animal was stolen or robbed, it is forbidden to ride upon it or to plow with it even with the consent of the thief or the robber. If he robbed a house or a field, it is forbidden to pass through it or to enter it in the heat because of the sun or in the rains because of the rain. And if he dwelt in it, he is obligated to pay rent to the owners if it is made for rent; and in this case, even if he sells it to him it is of no avail, for land cannot be robbed. If he robbed palm trees and made a bridge from them, it is forbidden to cross over it, and he did not acquire them through a change, for this is a change that can return to its original state; and this is specifically when he did not make beams or planks from them, but rather cut them into segments, into small pieces, for this is not a change of action. However, if he made beams or planks, it is a change of action and he acquired it, as has been explained in siman 360, section 8. And this is specifically when the bridge still belongs to the robber, but if he handed it over to the public, it is permitted to derive benefit from it, for it is despair with a change of domain. And even though he robbed it while attached and it cannot be robbed, nevertheless, once he cut them they are like movable property; and so too with anything similar to this. And one should not be stringent in this matter since it is a path for the public.

And even regarding something that is not stolen, it is forbidden to benefit from a gazlan, from his money or from anything he has, if it is established that all of his property is stolen. And even though the stolen item has already been changed and he acquired it through shinui, nevertheless, the money did not benefit the victim of the theft, and how can one benefit from the money of a transgression? And even though we said that a purchaser acquires through ye'ush and shinui reshut even if he knew it was stolen, this is certainly true that by the law of acquisition he acquired it, but he committed a prohibition in this, as I wrote in section 3. And if the gazlan has a minority of money that is known not to be stolen, even though the majority of his property is stolen, it is permitted to benefit from him until one knows that this specific thing in his possession is stolen. And to purchase something where there is a concern that it is stolen was explained in siman 358, section 2, that some prohibit, for in this case we do not follow the minority; and some say that there too the prohibition is only when it has not been clarified that he has a minority of kosher money, but when it is clarified, there too it is permitted [Sma and Taz]. And as for why we do not follow the majority of the prohibition, it appears to me that it is because there is a hazakah that everything found in a person's possession is his; only because this man is established as a gazlan has he lost his hazakah. Therefore, when it is clear to us that he has a minority of his own, we establish that everything taken from him is in his hazakah as with any person, since we do not know that this specific thing in his possession is stolen, and we say: join the minority to the hazakah and the majority is weakened. Furthermore, in matters of money we do not follow the majority in a place of a hazakah of money, and this gazlan has a hazakah of money [see Taz]. And as an example of this, we say [in Ketubot 27a] that one hiding place saves all the priestesses to validate them, as is written in Even HaEzer siman 7.

According to what has been written regarding a gazlan whose entire property is stolen, it is forbidden to benefit from him even when he has already acquired the object through a shinui, and also to purchase any object from him is forbidden according to the opinion of the Tur. However, it is possible to say that if it is known that the gazlan acquired the stolen object through a shinui, it is permitted to benefit from it, and the sages of blessed memory only forbade benefiting from his property because of the concern that perhaps he has not yet acquired it through a shinui. Furthermore, that which the Tur wrote, that it is forbidden to purchase any object from a ganav or a gazlan, this is all because we say that this is the stolen object itself; and it requires further study for the law.

People who are presumed to be robbers and all of their property is presumed to be stolen because their occupation is the occupation of robbers—such as bandits and tax collectors—it is forbidden to derive benefit from them, as the presumption of this occupation is that it is robbery. Even from the coins in their house it is forbidden to derive benefit. However, regarding the exchanging of coins with them, one may not exchange except from the chest placed before them for collecting the tax, because everything is presumed to be stolen; but from coins that he has in his house or in the market that are not in the tax chest, it is permitted to exchange. Since this is not a complete benefit, they did not rule so stringently regarding it. Therefore, even from his tax chest, if one is obligated to give him half a dinar and has only a dinar, he gives it to him and takes half a dinar from him from the chest, because it is like one who rescues from his hand [and from this there is proof for what I wrote in section 1].

A great principle is that when our Sages, of blessed memory, said that an ordinary collector of customs is a robber, this refers to customs collectors who arise on their own, as is common in the wilderness far from settlements, from bands of robbers who impose customs on passing caravans, and such was the case in the time of the Talmud. However, regarding a customs collector appointed by the ministers of the king, it is forbidden to steal any customs from him, for the law of the kingdom is the law.

The Rambam wrote in chapter 5: If tax collectors took his garment and returned to him another, behold these are his, because this is like a sale and the presumption is that the owners despaired of it and he does not know for certain that this is stolen. And if he was a pious person and strict with himself, he returns them to the original owners. In what case does this apply? When the tax collector is like a bandit, such as when the tax collector is a gentile, or a tax collector who stands on his own, or a tax collector who stands [by authority] but has no fixed rate, rather he takes what he wishes. But a tax collector who is on behalf of the king, and the king decreed upon him to take a fixed amount, and he appointed an Israelite tax collector to collect it for the king, and it is known that this man is trustworthy and adds nothing to what the king decreed, the law of the kingdom is the law. And not only that, but one who smuggles from this tax violates "you shall not steal" because he steals the portion of the king, whether it was a king of Israel or a king of the nations. And so too, one who bought the tax from the king must pay him in full, and one who conceals the tax, behold he steals from the one who holds the tax. But if an oppressor or a robber took the tax, it is permitted, because it is like the avoidance of his loan which is permitted in a place where there is no desecration of the Name. Thus far his words. And our teacher, the Beit Yosef, transcribed it in section 6. And regarding that which he wrote, that with tax collectors the presumption is that the owners despaired, and regarding a gentile tax collector, they raised a difficulty against him from what was written in siman 368, that one who rescues from a gentile tax collector is obligated to return it because the owners did not despair. And there is one who answered that specifically in this case where they gave the garment to another, the victim of the robbery despairs since he sees that it was already sold [Sma ibid.]. And this is a forced explanation, for if so, if the victim of the robbery does not know of this, it does not belong to the one who exchanged it, and why did the Talmud and the poskim not mention this? [Taz]. And there is one who says that here we are dealing with an Israelite tax collector, and that which was written "In what case does this apply etc." does not refer to what was above but rather to the fundamental law of tax collectors and not to the preceding [ibid.]. And the forced nature is evident. And it appears to me that in siman 368 it deals with a case where he knows for certain that it is stolen, for this is the language of "one who rescues," but here he does not know for certain that it is stolen, rather he takes his garment and he gives him another garment. And since this is like a sale and he does not know clearly that it is stolen, we lean toward leniency, that even if it is stolen, we say that the owners despaired; and they were not strict in a case of doubt where there is a loss, such that he would lose his garment. But to buy from him is forbidden. And so too, if it is known clearly that it is stolen, it is forbidden even in a case of loss, as the Rambam, of blessed memory, is precise in his words. And that which our teacher, the Rema, wrote, that if it is known that the owners did not despair, he must return it to the owners for free, thus far his words, the same law applies if it is only known that it is stolen, for even in an undefined case we say they did not despair as was written there. However, because it is explained in the wording of the Rambam and the Shulchan Aruch that the presumption is that the owners despaired, for this reason he says that if it is known that they did not despair, he must return it for free, for a change of domain without despair is nothing.

It has already been explained that regarding one who holds the tax franchise from the king, it is forbidden to conceal the tax from him when he takes a fixed amount equally from every person. And even if the king commanded that an Israelite shall give more than a non-Israelite, nevertheless it is called a fixed thing since all members of this nation give equally. And some say that even if it is known that the Israelite takes more than the fixed rate, nevertheless it is forbidden to smuggle the fixed amount from him, for it is like robbing from a robber, which is forbidden, as people say: "Steal from a thief and you also taste the flavor." [See Sma]

And similarly, a king who placed a tax on the residents of the city or on each and every person a fixed amount per year, or who decreed that anyone who violates this matter all his property shall be taken to the house of the king, and similarly regarding taxes that the king has the right to collect from the fields, and he decreed that all the owners of the fields from this city or from this village shall give such and such, it is within his power to decree that anyone found in the field at the time of the threshing floor, whether he is the owner of the field or whether he is not the owner of the field, he shall take from him the tax of this field [see Sma], and similarly anything similar to these matters. And one who collects all this, he is in the status of being fit, provided that he does not add and does not deviate from the command of the king.

And similarly, a king who commanded his servants to cut down trees belonging to private owners and to make a bridge from them, it is permitted to cross over the bridge. And even if he commanded to cut a specific amount from each one, and his servants went and cut everything from the forest of one individual, it is permitted, for the servant of a king is like the king, and they are not required to exert themselves to collect one from this person and one from that person; rather, it is upon the owner to exert himself in this. And similarly, a king who demolished houses and made a path, and similarly anything like this, what he has done is done, for the law of the kingdom is the law. And specifically a permanent king whose coinage is issued in the country and the people of the country have agreed upon him, such that the people of the country are to him as servants and he is to them a master, and not like those usurpers who were in ancient times who gathered a band of robbers and called upon him the name of a prince and a king, for this is merely a man of violence.

And similarly, a king who became angry with one of his servants or attendants from among the citizens of the state and took his field or his courtyard, it is not robbery and it is permitted to benefit from it; and one who purchases it from the king, it belongs to him and the owners cannot extract it from his hand, for this is truly the law of the monarchy as the prophet Samuel said to Israel. However, a minister who took a field or a courtyard of one of the citizens of the state not according to the laws enacted by the king, the owners extract it from the hand of the one who purchases it from him. The general principle of the matter: any law that is enacted for everyone is the law of the kingdom, and any strongman who takes from this man alone not according to the inclusive laws, and takes by force, it is not the law. And when there is a fixed statute for the members of a specific craft, see what our teacher, the Rema, wrote [and the Gra, subsection 33]:

And similarly, the appointees of the king and his officers who sell fields for the tax fixed upon the fields that the owners did not pay, their sale is a valid sale. However, the head tax that is upon each and every person is only collected from the person himself, for so the king commanded. Therefore, if the officer sold the field for the tax that is upon the head, it is not a valid sale unless the law of the king was so.

A king who decreed that anyone who does not pay the tax on a field, the field shall belong to whoever agrees to pay the tax from it, and the owner of the field fled, and another came and paid the tax from it and consumed its produce, this is not theft. Rather, he consumes the produce and pays the tax to the king until the owners return and restore it to their possession, for the law of the kingdom is the law. And similarly, a king who decreed that anyone who does not pay the head tax, and another pays it on his behalf, that he is permitted to subject him to labor, he may subject him to labor according to the king's statute; however, he does not work him as an actual slave. The general principle of the matter: whether regarding taxes or regarding customs, the king may decree as he wishes, and every single person is obligated to fulfill whatever the king shall decree regarding taxes and customs, for the land is his and he may do with it as he wishes.

An Israelite who was indebted to an idolater, and he sold the document to another Israelite, even though he comes by his power, nevertheless, the judges of Israel shall rule for this Israelite what the idolater would have gained before their judges; since this Israelite comes by his power, he is like him in everything that he would have been able to merit in their laws.

Our teacher, the Rema, wrote: One who marries a woman in a place where they adjudicate according to the laws of the idolaters, and his wife died, the father of his wife or her other heirs cannot say that anyone who marries a woman does so with the intent of following the custom, and the matter should be adjudicated according to the laws of the idolaters—that if she dies her husband shall not inherit from her, or the like. This is not a valid claim, and they must adjudicate according to the laws of the Torah, for Heaven forbid that we should uproot the laws of the holy and pure Torah; and all the kings in our days, on the contrary, their desire and will is that the people of Israel should observe the statutes of our Torah.