SALT - Tuesday, 5 Adar Bet 5779 - March 12, 2019

  • Rav David Silverberg
            Yesterday, we noted the ruling of the Shulchan Arukh (C.M. 367:1) that when a thief wishes to repent, he is required to return what he stole, but he does not have to bring the item to the victim if the victim is far away.  This is required only if the thief had falsely sworn that he did not commit the crime.  As we saw, this ruling is based on the Mishna in Masekhet Bava Kama (103a), and the commentators to the Shulchan Arukh debate the question of whether the thief is required to at least send a message to the victim to inform him of his interest in returning the item. The question arises, though, as to why the Torah command of “ve-heishiv et ha-gezeila asher gazal” (“he shall return the stolen item that he stole” – Vayikra 5:23) does not require doing whatever it takes to return the stolen item.
            The Minchat Chinukh (130), in addressing this question, references the Rama’s ruling (O.C. 656:1) that one is not required to spend an exorbitant amount of money (“hon rav”) for the sake of fulfilling an affirmative command (as opposed to avoiding a prohibition, which is required even at great expense, unless one’s life is threatened).  (Specifically, Rabbeinu Yerucham (cited by the Beit Yosef, O.C. 656) states that one is not required to spend more one-fifth of his assets for the fulfillment of a mitzva.)  As such, the Minchat Chinukh reasons, we could theoretically conceive of a scenario where a thief would be exempt from returning the stolen item because the expense is simply too much to demand for the fulfillment of this Biblical command.  However, the Gemara and Shulchan Arukh do not seem to qualify this halakha, and it seems that if the thief is not local, but far away, then the thief does not have to bring him the stolen item, regardless of whether or not this incurs great expense.  The Minchat Chinukh raises the question of why this is the case.
            Rav Asher Weiss, in his discussion of this topic, suggests two answers.  First, he proposes that the rules concerning the amount of expense one must be prepared to incur for fulfilling a mitzva do not apply to monetary obligations.  The rule that one does not have to incur great expense for fulfilling a mitzva was said in the context of the obligation of arba minim (four species) on Sukkot, which is, quite obviously, not an inherently “financial” mitzva. When it comes to mitzvot which are, fundamentally, financial obligations, Rav Weiss suggests, the practical requirements are determined solely by the amount of money owed, and not by other factors.  There is no maximum limit to one’s obligation – for example, one must repay whatever he stole and compensate for whatever damage he caused, no matter the amount – but there are also no additional requirements that can be imposed beyond the financial liability.  A thief’s obligation is what he has to return or repay, but he bears no obligation to go through the trouble of tracking down the victim for this purpose.  (In the case of a false denial on oath, however, as the Gemara explains, the thief must see to it that the stolen goods are returned as part of his atonement process.)
            Secondly, Rav Weiss suggests that perhaps for all mitzvot one is not required to incur an unreasonable expense, and indeed, if the thief can bring or deliver the stolen item to the victim without incurring such an expense, he is required to do so.  The exemption perhaps applies only if the victim is very far away, and a major journey would be necessary to bring him the stolen item, but otherwise, if only a minor expense involved, then the thief must, in fact, go through the trouble of returning the item.