Gezelah va'Avedah - Chapter 6

The Rambam has not completed his discussion of the principles governing property obtained by robbery. He mentions these laws here - although they are relevant, and to a certain extent repeated, with regard to the obligation to return lost articles - to emphasize that a person who takes an article in such a situation is not considered to be a robber.

I.e., if the finder knows that the owners have despaired.

For this is an obvious indication that they have not despaired of the article’s return. See the notes on the following halachah.

This does not necessarily refer to divers finding articles on the sea bed. The intent is also articles found near the sea, that were washed away when the tide came in and then discovered when the tide went out (Ramah, Choshen Mishpat 269:7).

I.e., one heard a statement to that effect from them.

The Ra’avad objects to the Rambam’s ruling, explaining that from Bava Metzia 22b and 27a, it appears that if the owners have no ordinary means of recovering their article, we assume that they have despaired of its recovery. The Maggid Mishneh and the Kessef Mishneh explain that, as reflected in Chapter 11, Halachah 10 (see also Chapter 14, Halachah 4), the Rambam also accepts this principle. The present halachot are referring to instances where it is within the owners’ power to recover their article.
The Shulchan Aruch (Choshen Mishpat 259:7) follows the perspective of the Ra’avad and the Tur, and states that in these instances even if the owner is present and shouts that he does not despair of the article’s return, the finder may keep the article he discovers. The Ramah adds that it is proper, however, to go beyond the letter of the law and to return the article to its owners.
The source for the Rambam’s ruling is a difference of opinion between Ravvah and Abbaye (Bava Metzia 22a). Although in differences of opinion between the two, the halachah ordinarily follows Ravvah, this is one of the few instances where the halachah follows Abbaye.

When, however, the robber is Jewish, the case must be heard before a Torah court, and a Torah court will not require a robber to return anything unless there are two witnesses to the crime.

Thus, the owner will appreciate the removal of the cress.

At which point, it will be useful for its seeds (Bava Metzia 107a).

The rationale is that since it is not in the midst of the flax, it will not cause much damage.

Chapter 13, Halachah 14.

For our Sages have deemed the hay and the straw ownerless, as a penalty for causing an obstruction to passersby.

See Hilchot Nizkei Mammon 13:15.

In contrast to hay and straw, there is no advantage to a piece of feces being trod on. Therefore, our Sages did not penalize the owner of the piece of feces by declaring it ownerless.

I.e., any place where large numbers of people gather.

Since the clothes were exchanged unknowingly, the garment in the person’s possession belongs to someone else, and he has no right to use it.
Moreover, even if that person’s own garment is lost, he must return the garment he took to its rightful owner. It is forbidden for him to condition his return of the garment on his receipt of his own garment (Ramah, Choshen Mishpat 136:1).

Here too, it is likely that he is using an article belonging to someone else, and that person has not given permission for its use.

If, however, the original owner of the article comes to claim it and states that he never gave the craftsman permission to sell it, the recipient must return it to him (Sefer Me’irat Einayim 136:2).

And is disqualified as a witness (Hilchot Edut 10:4).

The term “set doves into flight” is mentioned by Sanhedrin 24b. There are two interpretations given by the commentaries: that offered by the Rambam, and racing doves. The Rambam alludes to the latter interpretation in Halachah 10.

In a settled area, one can assume - as the Rambam continues to explain - that those doves brought back by the person’s own doves belong to others. If, however, one sets doves into flight in a desert, one may assume that the doves brought back by his own doves are ownerless. Hence, he is not disqualified.

Although a person does not have a claim to the doves in his dovecote according to Scriptural law, for he has not acquired them through a proper kinyan (deed of acquisition), our Sages ordained that they be considered his property in order to foster peaceful relations in the community. (See the parallels at the conclusion of this chapter.) Therefore, taking these doves is considered to be robbery only according to Rabbinic law.

See Sefer Me’irat Einayim 370:2, which suggests that a person who brings a domesticated animal should be considered a robber according to Scriptural law. For a domesticated animal is usually acquired in a lawful manner by its owner.

A mil is 2000 cubits - approximately a kilometer in contemporary measure.

Beyond this distance, one may assume that the doves come from outside the settled area and are ownerless.

And they are accustomed to flying greater distances.

The Rambam’s wording indicates that there is no difficulty in snaring the doves from the dovecote, and the only difficulty is in snaring those that come from the settled area. With regard to a dovecote owned by the person himself or one that is ownerless, there is no difficulty, but a problem arises with regard to a dovecote owned by a gentile. As the Rambam states in the first chapter of these halachot, it is forbidden to take the property of a gentile. Why then can one set up a snare near a gentile’s dovecote?
The Hagahot Maimoniot explain that even a Jew does not have a claim of ownership over doves according to Scriptural Law; his ownership is the result of a Rabbinic decree to foster peaceful relations in the community, and our Rabbis did not enact such decrees in favor of gentiles.

Because there is a concentration of doves in this place, even doves from distance places will be attracted to it.

So they will not eat the seeds or the produce grown in the gardens of the village. Although doves fly further than 50 cubits, we assume they will look for their food in their dovecote or in its immediate surroundings (Bava Kama 23a).

We assume that the previous owner of the field had entered into an arrangement with his neighbors allowing him to construct the dovecote. The new purchaser can thus continue in the path of his predecessor.

This is slightly more than ten cubits.

Moreover, if the dovecote falls, he may rebuild it in its original place (Shulchan Aruch, Choshen Mishpat 155:24).
The Shulchan Aruch mentions this law in the section concerning the distance by which neighbors must separate elements that may cause damage from property belonging to another person. The Rambam, by contrast, does not mention this law in Hilchot Sh’chenim, where he discusses such issues. This leads to the conclusion that if a person does construct a dovecote near a colleague’s field and the doves cause damage, he does not hold the owner of the dovecote liable. See Kitzot HaShulchan 155:9 who mentions that there is a difference of opinion among the Rishonim concerning this issue.

In contrast to the definition of robbery according to Scriptural law, which is taking another person’s property by force.
Based on Sanhedrin 25a, it appears that the Rambam considers the loser’s consent as an asmachta, a commitment that he did not make wholeheartedly and did not expect to fulfill. Therefore, it is not binding (see Hilchot Mechirah 21:3), and taking his money is considered to be robbery.
The Maggid Mishneh questions the Rambam’s view, noting that there is give and take on this issue in the Talmudic passage cited above and it appears that the conclusion is that gambling is not considered robbery, even according to Rabbinic law. The Maggid Mishneh [and the Kessef Mishneh (Hilchot Edut 10:4)] explain that from Shabbat 149b, it appears that gambling is forbidden as robbery by Rabbinic law.
[There remains a slight difficulty however, since the Rambam’s own words in Hilchot Edut appear to indicate that gambling is not considered robbery even according to Rabbinic law. (See also the gloss of the Radbaz on Hilchot Edut.)]
The Shulchan Aruch (Choshen Mishpat 370:2) quotes the Rambam’s opinion. The Ramah (based on the Tur) differs and maintains that gambling is not considered robbery. He cites earlier statements (Choshen Mishpat 207:13), where he maintains that when people are playing with money on the table, the winner may keep his gambling profits. When, however, they are playing on trust, the loser is not obligated to pay.

For since the gentile consents to the sport, taking his money is not considered robbery.

See the Rambam’s Commentary on the Mishnah (Sanhedrin 3:3), where the Rambam states:
It is fitting for a person to occupy himself... with only these two matters: wisdom to bring fulfillment to his soul, or financial activity - e.g., a profession or commerce. And it is fitting to spend less time in the latter and more in the former, as [our Sages] said (Avot 4:10): “Minimize your business activities and occupy yourself with the Torah.”

Gittin 59b states that the Rabbis forbade taking the snared animals in order to foster peaceful and neighborly relations.

In order for the owner of the snare to acquire them, he must take possession of them through a formal kinyan. Gittin, ibid., explains that this applies only when the snares do not have a receptacle. If they do have a receptacle, having the animal lodge in the receptacle is sufficient for it to be acquired according to Scriptural law (Shulchan Aruch, Choshen Mishpat 370:4).

I.e., they are not the private property of the person in whose land they lie. Anyone may draw water from them.

When produce is forgotten by its owner, it must be abandoned and left for the poor (Deuteronomy 24:19).

Since the poor person has not performed a formal kinyan, he has not acquired them according to Scriptural law. Hence, the prohibition against taking them is merely Rabbinic in origin.

By taking them in his hand, the poor man executes a kinyan, and the olives are considered to be his property according to Scriptural law. If another man takes them, the poor man can have them expropriated by a court.

In this instance as well, they have not been acquired via a kinyan.

This is also a decree instituted to foster peaceful and neighborly relations (Bava Kama 114b).

I.e., if the bees rest on a branch, he may not cut down the branch to take them all at once.
The governing principle is that the owner of the bees cannot purposely cause damage to his colleague’s property in order to retrieve his bees.

The Tur (Choshen Mishpat 274) quotes Rabbenu Asher’s opinion that this is permitted. The Ramah cites both views.

The Rambam is referring to the following situation: A swarm of bees left a person’s property. He pursued them and found them on the property of another person. The latter claims that this swarm of bees did not belong to the person seeking them. If a woman or a child makes statements to support the seeker, he is granted the swarm of bees.
When does this apply? When they took his side on their own initiative in the course of the argument. If, however, he asks them to serve as witnesses, their testimony is not accepted.

Hilchot Edut 9:2.7.

This indicates the power with which the Sages invested their decrees regarding financial matters.

See the following chapter, where this obligation is discussed.