Gezelah va'Avedah - Chapter 4

I.e., according to Scriptural Law the robber is required to pay only the worth of the goods that witnesses can testify that he took. In this instance, as reflected by the following halachah, the witnesses do not know the exact amount the robber took, and so, according to Scriptural Law, the extent of his liability could not be defined. Nevertheless, as a penalty to the robber, the Rabbis gave the person whose property was taken the option of clarifying the doubt regarding the amount plundered, by taking an oath.

The only oaths required by Scriptural Law are those enabling a defendant to support his claim to money that the plaintiff claims he owes. Our Sages (see Sh’vuot 44b) instituted several oaths to serve as the legal mechanism to enable a plaintiff to collect his claim.

As stated in Chapter 3, Halachah 15, such a person is considered to be a robber.

As reflected by Halachah 6, this refers to an instance when the owner was home at the time the person took the utensils. If the witnesses were able to identify the utensils, an oath would not be necessary (Halachah 6; see also Halachah 12). The oath is required because they cannot identify the utensils.

A Torah scroll (Hilchot Sh’vuot 11:8). In certain circumstances, tefillin are substituted for a Torah scroll (ibid.:12).

If the owner claims that the robber took an object more valuable than the owner could be expected to have possessed in his home, his claim is not accepted.
In such an instance, the defendant (the robber) can free himself of the claim by taking a Rabbinic oath (sh’vuat hesset) that he did not take the article in question. This is the Rambam’s opinion, as stated in his Commentary on the Mishnah (Sh’vuot 7:2). It is mentioned by the Tur and the Shulchan Aruch (Choshen Mishpat 90:1). These sources also quote another opinion that states that the robber is threatened with a ban of ostracism, but he is not required to take an oath (because his oath is no longer accepted).

If, however, the articles the owner claims to have been taken are too large to be carried under the robber’s cloak, the owner is not given this prerogative.
The Tur and the Ramah (op. cit.) state another condition: that it is reasonable to assume that the article that the owner claims to have been taken would be kept in the portion of the home into which the defendant entered.

The term Rabbinic oath refers to a sh’vuat hesset, a more lenient oath, in which the person taking it is not required to hold a sacred object.

The basis for his exoneration is the Talmudic principle of migo, that if the defendant wanted to lie, he could have used a more effective argument. Since he would not be held liable for that more effective argument - in this instance, the claim that he entered, but did not take anything - he is not held liable even if he claims not to have entered.
Generally, the principle of migo is not effective when it involves - as in this instance - a direct contradiction of the testimony of two witnesses. Nevertheless, in this instance, since the witnesses are testifying only about the person’s entry to the house, his word is accepted. For the entry is not a substantial matter and could have been forgotten; what is significant is whether or not he took anything, and regarding that fact, there is no contradiction between his statements and the testimony of the witnesses (Beit Yosef, Choshen Mishpat 90).
Although the Shulchan Aruch (Choshen Mishpat 90:2) follows the Rambam’s ruling, the Tur and the Ramah differ. They maintain that since the defendant contradicts the testimony of two witnesses, his word is not accepted.

The Maggid Mishneh and similarly, the Shulchan Aruch (Choshen Mishpat 90:3) emphasize that this also refers to an instance when the person stated that he was going to take collateral for a debt owed him. Otherwise, in certain instances he could clear himself by claiming that he had purchased the goods he took.

Our translation of the latter phrase is based on the gloss of Sefer Me’irat Einayim 90:5.
As stated in Halachah 13, if the witnesses were able to identify the object that was taken, the person who took it would not be given the opportunity to clear himself by taking an oath. He is given this opportunity because the witness cannot do so (Maggid Mishneh).

Scriptural law states that although evidence from one witness is not sufficient to establish a binding obligation, it is sufficient to require the defendant to take an oath to clear himself. In this instance, although the witness cannot identify the object, the fact that he testifies that the person took something is sufficient to require an oath.

I.e., a robber is not given the prerogative of defending himself against the charges against him by taking an oath. A person who is classified as a robber based on the testimony of two witnesses is disqualified as a witness and is not given the prerogative of taking an oath. This person is given such an opportunity, because until two witnesses testify against him, he has not been classified as a robber.

Rabbi Akiva Eiger states that this law applies even if the watchman is not financially responsible if anything is taken from the home.

The watchman’s oath is effective because he is considered to be the home owner’s agent, and we follow the principle: “A person’s agent is regarded as the person himself” (Sh’vuot 46b). The oath of the watchman’s wife is accepted because, as evident from Bava Metzia 36a, she is considered to be a partner in her husband’s responsibility.

For they have not been given the responsibility of watching the home.

Even if he knows that certain articles are missing, as long as he did not see the person take them, he does not have definite knowledge that the person took his goods.

Since two witnesses saw him take property belonging to someone else, we consider him to be a robber, whose oath is not acceptable.

It is hoped that the robber will fear the spiritual ramifications of this ban and will admit to having taken his colleague’s property.

Even if the owner claims that a greater amount was taken, the robber is required to pay only what he admits. For, as mentioned in the notes on the previous halachah, the homeowner does not have definite knowledge that this person took his goods.

The Maggid Mishneh states that if the owner seizes possession of the robber’s property to obtain reimbursement, he must return it. The commentaries also note the contrast to Hilchot Chovel UMazik 7:18 and 8:7.

The Kessef Mishneh explains that the oath is required because it serves as the only basis for the plaintiff’s claim. He cannot collect money from the robber without this measure of substantiation.

Note Hilchot Mechirah 20:2, where the Rambam rules with regard to a person who purchases an article from one of five people and cannot identify the seller. Although each claims to have sold him the article, he is required only to place [an amount of money equivalent to] the purchase price between them and allow them to divide it as they see fit. Only if he is pious and desires to act beyond the measure of the law is he required to pay each one.
In the case discussed in Hilchot Mechirah, a transgression was not committed. In this instance, since the robber transgressed, he is given a penalty.
(Although the Rambam’s ruling is accepted by almost all authorities, the Siftei Cohen 365:2 defends the opinion of the Ba’al HaMa’or, who maintains that it is sufficient to leave the amount the robber admits to having taken among all the claimants, and have them divide it as they desire.)

According to Scriptural Law, a plaintiff is not entitled to collect a claim unless the defendant admits his obligation, or two witnesses attest to the claim. Despite the fact that the robber does not admit to any of the specific claims, nor are there witnesses, our Sages required him to pay all the claims as a penalty for robbery.

And the fathers died or are not present to lodge a claim.

This moral and spiritual obligation exists only in the case of a loan, and not when a similar situation occurs with regard to an entrusted article (Hilchot She’ilah UFikadon 5:4).

In contrast to the previous halachah, where each of the plaintiffs lodged a claim and supported it with an oath.

100 zuz.

According to Scriptural Law, when a defendant denies entirely a claim lodged against him, the case is dismissed without requiring an oath to be taken. The rationale is that if he did in fact owe him money, he would not deny the claim entirely. Nevertheless, when the moral standards of the Jewish people declined and people began lying for their own gain, our Sages required that the defendant take a Rabbinic oath to support his claim (Hilchot To’en V’Nit’an 1:3).

Based on the principles of Biblical exegesis, Bava Kama 107a states that the oath referred to by Exodus 22:7-8 refers to an instance in which a person admits a portion of the claim made against him, but denies the remainder. See Hilchot To’en V’Nit’an 1:1.
Our Sages (loc. cit.) explain the rationale for the Torah’s requirement. We suspect that perhaps the person was liable for the entire amount and was merely trying to postpone payment because he did not have the funds available. The oath would require him to set the record straight.

I.e., a robber is not given the prerogative of taking an oath. Nevertheless, since it has not been definitively established that this person is a robber, we do not withhold that prerogative from him.
Seemingly, the person should be denied this prerogative, because he himself admitted to having committed robbery. Nevertheless, we follow the principle: “A person’s own testimony cannot be used to classify him as wicked” (Hilchot To’en V’Nit’an 2:3), and we therefore give him the opportunity to take the oath (Sefer Me’irat Einayim 364:8).

An act equivalent to robbery (Chapter 3, Halachah 16).

I.e., it is the defendant’s own admission that he took property that creates the difficulty. Therefore, we follow the principle of migo and accept the defense he gives. For if he had desired to lie, he could have denied the entire matter, since there are no witnesses.

Hilchot To’en V’Nit’an 1:2.

Carrying the utensils unconcealed indicates that the person does not fear detection and would lead to the conclusion that the utensils were not taken by robbery. Nevertheless, this conclusion is not accepted.

And it is thus possible that the person who entered had purchased them from the owner previously and received his permission to take them. See Hilchot Geneivah 5:10-11.

Had the owner been present, the defendant’s claim would be accepted in such a situation, for the owner is known to sell his household goods.

The fundamental proposition is that everything that is in a person’s home is considered to be his property, and no one is allowed to take anything from him without demonstrating proof of ownership.
Sefer Me’irat Einayim 90:42 states that even if the witnesses cannot identify which utensils the intruder took, if the intruder identifies the utensils (although he claims that they were sold to him), they must be returned to the original owner.

If the homeowner denies totally the intruder’s claim that he sold him the utensils, the homeowner is merely required to take a Rabbinic oath (sh’vuat hesset) to clear himself of the charge.

The Ra’avad questions how it is possible for the homeowner to issue a definite claim against the intruder if he was not present at the time of the intrusion. The Ra’avad suggests that since the owner recognizes his utensils in the possession of the intruder, his claim can be considered a definite one.
Without rejecting the Ra’avad’s suggestion, the Maggid Mishneh offers a different resolution: that an oath that comes because of the testimony of one witness does not require a definite claim on the part of the plaintiff. There is a difference of opinion concerning this matter among the halachic authorities. Rabbenu Efrayim and the Rambam’s teacher, R. Yosef Migash, maintain that there is no obligation to take an oath in such a situation, while the Ramban and others maintain that one is obligated. See the notes on Halachah 17.

The homeowner is not even required to support his claim with an oath to compel the intruder return the utensils. Afterwards, the intruder can issue a claim against the owner, and the owner must take a Rabbinic oath to vindicate himself.
This ruling applies only when the utensils are presently known to be in the possession of the intruder. Otherwise, the intruder’s claim is accepted on the basis of the principle of migo. Had he desired to lie, he could have told a better lie and said that he had already returned the utensils in question (see Sefer Me’irat Einayim 90:40).

I.e., the witness states that the intruder entered the home and took utensils. On the basis of this statement, the intruder should be classified as a “robber” and is required to reimburse the owner.
Now the only way the intruder can nullify the statement of the witness is by taking an oath to deny it. This he does not do. Indeed, he substantiates the statement of the witness, admitting that he entered the home and took utensils. The remainder of the intruder’s claim, that the utensils belonged to him, we do not accept, because it runs contrary to the assumption (chazakah) that everything in a person’s home belongs to him.

Since he cannot avail himself of the means the Torah provides for him to vindicate himself from the charges levied against him, he must pay the amount required.

This leads to a question: One might think that we should accept the intruder’s claim because of the principle of migo - i.e., had he desired to lie, he could have denied the statements of the witness entirely. This argument is not accepted, however, because the principle of migo is never employed against a chazakah. For, as stated above, the assumption that everything in a person’s home belongs to him is strong enough to counter the migo that could be offered in support of the intruder (Sefer Me’irat Einayim 364:2).

This also follows the same principle stated above. We assume that everything in a person’s possession is his own. Hence, the statement of the witness must be refuted. Since the attacker does not refute that statement, he is liable for the consequences.

The intent is a sh’vuat hesset, the oath required of anyone who denies entirely a claim made by a plaintiff.

In this instance, the plaintiff also agrees that there were twenty coins.

Although the extent of the person’s obligation is being determined by his own testimony and not by that of the witnesses, he is liable for the reasons explained by the Rambam.

This is the oath of a person who is modeh b’miktzat, he admits a portion of the claim issued against him. (See Note 30.)

Bava Metzia 5a explains that when a person is obligated to pay a portion of a claim because of the testimony of witnesses, it is equivalent to his making the admission himself (modeh b’miktzat), and he is obligated to take an oath regarding the remaining portion.
These authorities wish to expand this principle further and maintain that since the defendant becomes obligated to pay because of the testimony of one witness, he should then be obligated to take an oath conceming the other portion.

A sh’vuat hesset.

As is required when a person totally denies a claim issued against him.

The Ra’avad asks: “If the plaintiff’s claim is not considered a valid claim, why is the defendant required to pay? He cannot be considered to be obligated to take an oath unless a claim is issued against him.” The Maggid Mishneh explains that an oath required by the testimony of a witness does not have to be supported by a definite claim. See the notes on Halachah 13.