Gezelah va'Avedah - Chapter 5

See Hilchot Geneivah 5:1, where the Rambam writes:
This is a severe sin, for it reinforces a transgressor and motivates him to steal in the future. For if he did not find a person who would purchase a stolen article from him, he would not steal. With reference to this, [Proverbs 29:24] states: “A person who shares profits with a thief hates his [own] soul.”

When the nature of an article changes and its owner despairs of its return, it is acquired by the robber.

Gittin 45a states: “The mouse is not the thief; the hole is”; for were it not for the hole that allows it to enter, the mouse could not take whatever it takes. Similarly, in the analogy, if not for the persons buying the stolen goods, the thief would not steal.

This is a general prohibition that involves leading a person astray. See Hilchot Rotzeach 12:14.

For the owner’s despair is not sufficient to transfer ownership of the article.

In this regard, we follow the principle (Bava Kama 117b): “Land can never be obtained by robbery.” Thus, the land is always considered to belong to its original owner; there is no concept of its being transferred to another person, even if the original owner despaired of its return.

Chapter 3, Halachah 9.

I.e., the trees are laid across the water as they are. This is not considered a fundamental change, unless the trees are planed and made into boards. See Chapter 2, Halachot O and 12.

Bava Kama 113b states that if the bridge is made by order of the local king or government, one is permitted to pass over it, because “the law of the land is your land.” Since the local authority has ordered that the wood be used for this purpose, that order is binding (Halachah 17; Shulchan Aruch, Choshen Mishpat 369:2).
Similarly, if the robber gave the bridge to the community for use and the owner despaired of the return of the trees, one is permitted to pass over it (Ramah, Choshen Mishpat 369:2).

If, however, movable property obtained by robbery undergoes a fundamental change, or the owners despair of its return and it is transferred to another person, one may use it.

Violating the prohibition mentioned in Halachah 2.

Although the robber himself is still liable to return the article, since the owners despaired of its return, no one else is under such an obligation.

Or they may take a portion of the payment from one and the remainder from the other.

Although the sons are not liable on their own accord (as stated in the previous halachah), they are liable because of the debt incumbent on their father’s estate.

And thus they did not benefit at all from the robbery.
Needless to say, if the article obtained by robbery is itself intact, the heirs must return it.

There is no difference whether they are above or below majority (Shulchan Aruch, Choshen Mishpat 361:7).

In his gloss on Hilchot Ishut 16:7, the Maggid Mishneh explains that this ruling reflects a difference in the socio-economic status of the Jewish people. Land was commonly owned in the Talmudic period. In contrast, the ownership of land was less common in the era of the geonim. Movable property thus rose in importance, and a creditor would feel secure even when an obligation was supported only by movable property.
As stated in Hilchot Nizkei Mammon 8:12, this ruling has been accepted by all the [Jewish] courts of law. Thus, although the ordinance is post-Talmudic in origin, it should be adhered to because of its universal acceptance. See, however, Hilchot Ishut 16:8.

See Hilchot Geneivah 5:2.

According to Scriptural law, the purchaser of an article obtained by robbery would have to return the article to its original owner, and then sue the thief for the money that he paid him. Our Sages, however, ordained that the purchaser be reimbursed by the owner of the article for his purchase. Had they not made such an ordinance, trade in the marketplace would be severely restricted, for people would fear that they are buying stolen goods.

There is no difference whether the owner despaired before the article was sold or afterwards (Hilchot Geneivah 5:3). As long as both the owner despaired and the article was transferred to somebody other than the robber, that person acquires it. As mentioned in the notes to that halachah, the Tur and the Ramah differ with the Rambam’s ruling.

For we assume that everything that he owns was obtained through robbery.

The Maggid Mishneh notes the contrast to Hilchot Geneivah 6:1, where the Rambam states: “If the majority of a particular substance is stolen, one is forbidden to purchase it.” The Maggid Mishneh (and the Kessef Mishneh in Hilchot Geneivah) explain that there is not necessarily a contradiction. When we are speaking about a particular type of substance, when the majority of the substance is stolen we must be wary. When we are talking about a person, the fact that the majority of his property is stolen is not an indication about a particular piece of property.

See Halachah 11.

E. g., exchange larger coins for smaller ones, or vice versa.

Although the person receives the worth of the money in change, the customs-collector has a certain benefit from the transaction.
If the customs-collector requires a person to pay a certain amount, and the person does not have exact change, he is allowed to pay him the larger amount and receive the change from the customs-collector, for by doing so he is merely taking his due, and preventing the customs-collector from further gain (Shulchan Aruch, Choshen Mishpat 369:4).

For he is being given this in return for his own donkey. Thus, like the purchaser of an object obtained by robbery, this person is allowed to keep it as his own.

For the probability of a tax-collector returning an article he confiscated is not high.

Although the large majority of the objects in a customs collector’s possession are considered to have been acquired through robbery, it is possible that there are some that are legitimately his.

Bava Kama 114b states that this refers to a person who says: “I cannot take money that belongs to someone else.” In this instance, since it is possible that the owner did not despair of his article’s return until the other person was given it, there is somewhat of a moral [but not a direct legal] obligation for that person to return it.
The Ramah (Choshen Mishpat 369:5) states that if the person knows that the original owner did not despair of the return of his article, the recipient is obligated to return it to him.

But not to the customs-collector.

The Rambam’s words [which are quoted by the Shulchan Aruch (Choshen Mishpat 369:6)] imply that even if a gentile customs-collector was appointed by the ruling authorities, he is considered to be a robber, for we assume that he will take more than his due (Maggid Mishneh).

Even if the customs-collector is Jewish and collects merely the amount dictated by the king, he is considered to be a robber if he is not appointed by the king (or by the leaders of the Jewish community), for he has no authority to take money from another person.

The Ramah (Choshen Mishpat 369:6) states that even if a tax - or a higher percentage of duty - is imposed upon the Jewish people alone and not on the other subjects of a kingdom, if it is imposed on all Jews uniformly, they are obligated to pay it.

This is the motivating principle for this and all the following laws in this chapter. The laws of any kingdom or government, if uniformly applied without favoritism, are binding on the land’s Jewish subjects according to Torah law.
Sefer Me’irat Einayim 369:12 explains this principle as follows: The entire land is the property of the king. And a person can do whatever he wants with regard to his own property.
The Chatam Sofer offers a slightly different rationale: By making a decision to live in a particular country, a person agrees to accept its laws. He has no right to live in a country without doing so. (See Halachah 18.)
One might ask: It is known that some religious Jews are not scrupulous in their adherence to American law. How can they countenance such violations?
The truth is that they should not. No Torah authority would consent to such actions. These people’s deeds are holdovers from Eastern Europe, where the Jews were forced to live under unfair and discriminatory laws. Since those laws were not uniformly applied to all the citizens of the land, our Rabbis considered them unjust and gave people license to circumvent them. (And even then, not in all cases.) In countries where laws are uniformly applied, there is no room for such license.
The Ramah (Choshen Mishpat 369:11) found it necessary to conclude his treatment of this subject by emphasizing that although the law of the land is binding, the Jewish people are obligated to conduct their business dealings and judge all their disputes according to Torah law. Our obligations to the law of the land encompass only our financial and personal responsibilities to the land’s welfare.

In his Kessef Mishneh, Beit Yosef and Shulchan Aruch (Choshen Mishpat 369:6), Rav Yosef Karo discusses whether this applies if the king hires out the right to impose a customs duty to other people. He rules that if a gentile purchases this right, it is permitted to deceive him and withhold the customs duty.

See also Hilchot Melachim 4:1, with regard to the authority granted a Jewish king to impose taxes and customs duties.

I.e., rather than have his tax-collectors spend their time searching for all the owners of the field, the king decrees that the property tax should be paid by the person collecting the harvest. The later authorities question whether a sharecropper or a worker can be held responsible.

Ulam HaMishpat cites as an example King David’s seizure of an estate granted to Mefiboshet, the son of King Saul, because Mefiboshet failed to support him at the time of Avshalom’s uprising (II Samuel, Chapter 16). Although Shabbat 56a, b criticizes David for this action, the criticism is not for the confiscation of the estate, but for judging Mefiboshet on the basis of the slanderous statements of his servant.
There is, however, a slight difficulty with the Rambam’s statements. In Hilchot Melachim 3:8, the Rambam states that a king may impose any form of corporal punishment for disobedience; he may even take a person’s life. He may not, however, confiscate the person’s property.

In contrast to property obtained by robbery from which it is forbidden to benefit, as explained in Halachah 3.

I.e., if they call the case to a Jewish court, the judges will not order the purchaser to return the field.

Since all kings are given such authority, exercising this authority is not considered to be robbery.

The source of legal authority for that country.

The classic example being Achav’s acquisition of the vineyard of Navot (I Kings, Chapter 21).

From the Rambam’s statements, it appears that, as mentioned in the notes above, even if the king’s laws discriminate against a particular nation - e.g., the Jews - as long as they are the uniform law of the country and are not aimed at seizing the property of a particular individual, they are binding.

Generally, in Talmudic times, the law was that a person can be sold as a servant for not paying the head tax, but that his property could not be confiscated (Bava Batra 55a).

The Ramban differs with the Rambam on this point, maintaining that when a king decrees a law that does not conform to the accepted standards of law, it is not binding, and the seizure of property on this basis is considered to be robbery. The Shulchan Aruch (Choshen Mishpat 369:9) follows the Rambam’s ruling, and the Ramah does not object.

From Bava Metzia 73b it appears that this refers to a person who paid the property taxes voluntarily. In return, he is merely entitled to the benefit from the property.
Thus, when the owner returns, he does not have to repurchase the land; all that is necessary is that he pay the taxes that the other person paid. If he pays these taxes, however, the person who paid the taxes does not have to pay the owner for the benefit he received in the interim (Maggid Mishneh).
As stated above, if the king’s tax collectors desire, they may sell a field because of an owner’s failure to pay taxes. In that instance, the owner does not have the option of paying the taxes and receiving the field.

The Rambam restates this concept in Hilchot Avadim 1:8. In his gloss on that text, the Ra’avad differs and maintains that the person who did not pay the tax can be compelled to do work that is worth more than the amount of the tax, and yet the person who paid the tax is not considered to have received interest. The rich man may not, however, compel the poor man to work excessively.

The Kessef Mishneh explains that the Rambam is stating that he must be treated as a Hebrew servant and not as a Canaanite servant. Therefore, the person who paid the tax cannot compel him to perform denigrating tasks like carrying his clothes to the bathhouse or removing his shoes. See Hilchot Avadim 1:7.
See also Halachah 8 of that source, which states that if a person does not conduct himself as befits a Jew, he may be treated as a slave.

See the contrast to Halachah 3. When stating this law, the Shulchan Aruch (Choshen Mishpat 369:2) states that one is permitted to benefit from the bridge even if the king’s subjects took the lumber from only one person, instead of distributing the financial burden evenly among many subjects.

Hilchot Melachim 5:3 cites this principle in connection with wartime. From this halachah, it would appear that even when a country is at peace, a king has this authority.

I.e., the acceptance of the king’s laws is dependent on the subjects’ willful recognition of him as their leader. In doing so, they become duty bound to follow his laws.

Our Sages illustrate this instance by citing the example of a certain ben Natzar, a robber-king whose bands controlled several sections of Babylonia at one point of Talmudic history. A more recent example can be given of the various militia who ruled different portions of Russia in the period immediately following the Bolshevik revolution.