Siman 370

There are matters that according to Torah law do not constitute gezel, but the sages forbade them because of gezel, and one who violates them is a gazlan by their words. Such as those who fly pigeons, those who play with dice, one who spreads a net and another comes and takes it, a poor person who beats the top of an ownerless tree and the fruit falls to the ground but has not yet come into his hand and another comes and takes it, and one who robs a swarm of bees. Regarding any gezel of their words, we do not extract the stolen object from him in a beit din since according to Torah law this is not gezel. However, he becomes disqualified for testimony through this, as I wrote in siman 34, and he becomes disqualified for an oath, as I wrote in siman 92; for since he violates a prohibition due to a lust for money, he is also suspected of testifying falsely and swearing falsely for the sake of money. It has already been explained in siman 270 that the find of a deaf-mute, an insane person, or a minor—even though they have no legal acquisition according to Torah law when there is no other mind transferring ownership to them—nevertheless, by rabbinic decree it is theirs, and one who takes from them is a rabbinic gazlan. And why did the sages institute that these matters involve gezel? Because of the ways of peace, so that they should not quarrel with one another. Except that regarding those who play with dice there is another reason: because he does not engage in the settlement of the world. And for what reason is there no gezel in these matters according to Torah law? Because in all these matters there is no grasp of a kinyan, as will be explained.

Pigeon-flyers, how so? There are pigeons trained to bring additional pigeons to this shobek, such that one sends out a male and it brings a female with it, or a female and it brings a male, and he sends out his pigeons so that they will bring pigeons from the wilderness, and sometimes they bring from the settlement. There is no Torah prohibition of gezel in this, for even the owner of the shobek does not have full acquisition of them, even though the shobek is his, if he does not raise them in his house or in his stall and provide them with food, but rather raises them in a shobek standing outside his courtyard and they feed from the field, and he does not acquire them with money, but rather pigeons from ownerless places gather to the shobek and are raised there, and sometimes they leave from there and the mind of the owner of the shobek does not rely upon them. Therefore, there is no Torah prohibition of gezel in this. Nevertheless, by rabbinic decree there is gezel in this because of darkei shalom, because everyone considers the pigeons found in his shobek to be his and they will come to quarrels and strife. And pigeons that always return to their shobek, there is absolute gezel in them from the Torah, as with all birds in a person's possession [as is evident from Bava Metzia 102a and from the end of Chullin from Rashi, starting with the words "And if you wish to say"; and the reason of darkei shalom is in Sanhedrin 25a and in Gittin 59b: this is included in the Mishnah with traps for beasts and birds, for this too is like a trap].

And not only pigeons, but anyone who does so with other birds and beasts and animals that are not from a settlement, such as a wild ox, behold, he is a thief by the words of the sages. And the Tur wrote that they forbade hunting pigeons in a settlement because they belong to others, and one may not spread nets for pigeons unless he distanced himself four mil into the wilderness. And in a place of vineyards, even if he distanced himself one hundred mil, he shall not spread them, because they travel far by way of the vineyards. And so too if there are dovecotes, even if they are his own or belong to a Cuthite, he shall not spread them even at a distance of one hundred mil, because they travel far by way of the dovecotes. Thus far his words. And one must distance the dovecote from the city according to the measure explained in siman 155; and see in siman 259, section 15, and in siman 260, section 19.

Even though it has been explained that regarding pigeons there are those that according to the Torah are not considered stolen, and this is what our sages, of blessed memory, said [ibid.]: pigeons of a dovecote and pigeons of an attic are subject to the obligation of shiluach haken and are forbidden as theft due to the ways of peace; nevertheless, the eggs found there are absolute theft according to the Torah, for the eggs will certainly not fly away from the dovecote. And this is specifically when he sent the mother away from them, but when the mother is sitting upon them, he is obligated in shiluach haken as is written in Yoreh Deah in siman 295, and it is forbidden to acquire the eggs then. Therefore, even the owner of the dovecote himself has not acquired them. And if another comes and sends away the mother, the owner of the dovecote acquires the eggs, for his courtyard acquires for him. And if this other person placed his hand or his garment under the eggs before the sending of the mother, and did not intend to acquire them before the sending, he can acquire them after the sending [Tosafot Bava Metzia 102a]. And know that pigeons that a person raises in his courtyard or in his field, and they recognize their owners and always return to their dovecote, are absolute theft according to the Torah, as I wrote in section 2.

Those who play with dice, how so? For example, those who play with cards, or with pieces of wood and pebbles, or with bones, and they make a condition between them that whoever defeats his fellow in that game shall take such and such. And similarly, those who race domestic animals, wild animals, or birds, and they make a condition that whoever's animal triumphs by running faster shall take from his fellow such and such. And everything similar to these matters is all forbidden, and it is robbery by their words. And one who plays with dice with a gentile, there is no concern of robbery in it, but there is in this a prohibition of engaging in idle matters; for it is not fitting for a person to engage all his days in anything except matters of wisdom, trade, and the settlement of the world. And this is the opinion of the Rambam, of blessed memory:

And we have already explained in siman 207, section 23, that many have become entangled in the words of the Rambam, of blessed memory, and we explained there what appears to us from his words, of blessed memory: that in dice, where the acquisition is from now, there is no issue of asmakhta, and ordinary dice playing constitutes an acquisition from now. Nevertheless, since this is not the "settling of the world," the Sages, of blessed memory, treated dice playing as robbery, but regarding a gentile they were not stringent, and he is fit for testimony unless he has no other profession. And many of our teachers disagree with him and hold that dice playing involves no issue of robbery at all for the reasons explained there, and only if he has no other profession did the Sages, of blessed memory, disqualify him because he does not engage in the settling of the world. And our teacher, the Rema, agreed with this opinion. And one who plays on credit is not obligated to pay, as I have written there.

One who spreads a net in a river to catch fish: if the net has a receptacle, such as nets and dragnets, he acquires them according to the Torah, for his net acquires for him, and one who steals them from him is a thief according to the Torah. And if it does not have a receptacle, such as those who hunt with long lines, hooks, and the like, it is not an acquisition according to the Torah; rather, only by rabbinic enactment did they decree that it shall belong to the owner of the net because of darkhei shalom. And if another comes and takes it, he is a rabbinic thief. And so too regarding nets for beasts and birds, the law is such.

One who wishes to eat ownerless fruits and plucked them from the tree with his hands, the fruits are his according to the Torah, for with his hands he acquired them. And if they did not come into his hand, such as one who beats the tree and they fell to the ground before they came into his hand, behold these are his by rabbinic decree for the sake of the ways of peace. And one who robs them from him is a rabbinic robber. And thus our sages, of blessed memory, said: A poor person who beats the top of an olive tree for olives of shikhecha and they fell to the ground, and another came and took them, behold this is robbery for the sake of the ways of peace. And in siman 34 the difference between a Torah robber and a rabbinic robber was explained; see there and in siman 273.

Bees are not in the possession of a person, and nevertheless they have an acquisition by rabbinic enactment. One who steals a swarm of bees or prevents them from their owner after they have come into his possession is a rabbinic thief. Therefore, if one's swarm of bees left his possession for the property of his fellow, the owner of the swarm may enter into the field of his fellow to take his swarm, and if he caused damage, he pays for what he damaged. If they settled on a branch belonging to his fellow, it was explained in siman 274. The Tur wrote that a woman or a minor are believed to say, "From here this swarm emerged," and specifically when they speak according to their innocence and the owners are pursuing them, for the matter is recognizable that they are speaking the truth. And specifically when they say so immediately after the pursuit of the owners, but when they say so after a period of time, we fear perhaps they enticed them to say so. There are those who disagree on this, and since it is a legal doubt, there is one who says that we judge in this "whoever is stronger prevails" [Ktzot HaChoshen]. However, the primary view is that the beit din shall judge this according to their assessment, and so too in all similar cases.