SALT - Monday, 4 Adar Bet 5779 - March 11, 2019

  • Rav David Silverberg
            Towards the end of Parashat Vayikra, the Torah discusses several different situations of theft, and addresses the specific case of a thief who falsely denies the crime on oath.  In such a case, the Torah requires the thief (when he repents, of course) to return the stolen goods, and then bring a sacrifice for atonement.  The command in this section to return the stolen goods – “ve-heishiv et ha-gezeila asher gazal” (5:23) – is the source of the mitzvat asei (affirmative command) requiring a person who stole to return what he stole to the victim.  (See Sefer Ha-chinukh, 125.)
            The Mishna in Masekhet Bava Kama (103a) establishes that if a thief falsely denied his crime on oath, he bears an obligation to do whatever it takes to return the stolen goods.  Even if the owner is very far away, the thief must bring the stolen goods to the victim.  The Gemara infers this provision from a verse in Sefer Bamidbar (“la-asher hu lo yitenenu” – Bamidbar 5:7).  The clear implication of the Mishna is that if the thief did not falsely swear, then he is not required to bring the stolen goods all the way to the victim.  Accordingly, the Shulchan Arukh (C.M. 367:1) rules that in such a case, if the victim is far away, the thief can keep the stolen goods with him until the victim is in the area.  The Rama adds that the thief must inform the victim that he has the stolen goods and wishes to return it, so the victim can come retrieve them.  It is unclear from the Rama whether he is referring to a situation where the victim is far away, or to the time when the victim comes to the area.  In other words, the Rama is either qualifying the exemption from bringing the stolen goods to the victim, explaining that the thief nevertheless bears the responsibility to contact the victim and inform him that he has the goods, or instructs that once the victim comes to the area, the thief must reach out to him.  (See Sema and Shakh.)
            Regardless, the question arises as to why the thief is not required to do whatever is takes to return the stolen goods.  Why is it only in the case of a false oath that this is required?  Why doesn’t Halakha demand of every thief that he incur the travel or delivery expenses necessary to ensure the victim receives the stolen property?
            The Sema (367:2) explains that this provision was enacted for the purpose of “takanat ha-shavim” – in order to make the penitence process easier, so as to encourage thieves to repent.  If the obligations cast upon a penitent thief were too difficult, thieves would be far less likely to go through the process, and so Chazal enacted several provisions to ease the burden.  According to the Sema, the rule exempting a thief from bringing the stolen property to the victim in a far-away land falls under this category.
            The Shakh (367:2), however, disagrees.  In his view, which he claims is indicated by the Gemara, this provision reflects Torah law, and is not a later enactment by Chazal.
            The question, then returns: why does the Torah absolve the thief from bringing the stolen goods to the victim?
            One approach to answering this question is offered by Rav Yechiel Michel Epstein, in Arukh Ha-shulchan (C.M. 367:3), who suggests that Chazal apparently interpreted the Biblical command to mean that the thief needs to assure the victim that the goods would be returned.  The command, “He shall return the stolen item which he stole” should not be taken literally, to mean that the thief must actually hand the item to the victim, but should rather be understood as requiring the thief to make the item available to the victim such that the victim is confident that he will retrieve it.  The Arukh Ha-shulchan follows the view that if the victim is far away, the thief must inform him that he wishes to return what he stole, and this, according to the Arukh Ha-shulchan, is the definition of the command, “ve-heishiv et ha-gezeila asher gazal” – a requirement to assure the victim that the stolen property is available to be returned.
            The Arukh Ha-shulchan answers on this basis a question many have raised regarding the Rambam’s formulation in discussing this law.  In Hilkhot Gezeila (7:9), the Rambam gives a reason for why a thief who falsely denied the crime on oath is required to bring the item to the owner, even if he is far away.  The Rambam explains that this is required because once the thief falsely swears, the owner despairs of ever retrieving his item until he actually receives it, as he no longer trusts the thief.  And for this reason, the Rambam writes, the thief must track down the owner and bring him the stolen goods.  Since the owner in this case is unlikely to make any effort to try to retrieve what was taken, the thief bears the responsibility to go bring him the lost item.  Many Acharonim noted that this reasoning does not appear in the Gemara, and they wondered how the Rambam arrived at such a theory.  The Arukh Ha-shulchan suggests that since the Gemara distinguished between situations where the thief falsely swore and situations where no oath was taken, the Rambam deduced that the command to return a stolen item is defined as making the stolen item available to the victim.  If no oath was taken, this means simply that the thief must make the victim aware of his willingness to return it, but once an oath is taken, even informing the victim does not suffice, as the victim no longer trusts the thief, even if the thief expressing his preparedness to return the item.  And therefore, specifically in such a case, the thief does not fulfill his obligation until he actually brings the item to the owner.