Rambam - 3 Chapters a Day

I.e., an unpaid watchman, who is not held liable if the entrusted article was lost or stolen (Hilchot She’ilah UFikadon 4:1).

For the watchman is not absolved of liability until such an oath is taken (ibid.).

By taking the oath, he freed himself of the responsibility to return the entrusted article, and he is keeping it as his own.

If he slaughtered or sold the animal before he took the false oath, he is not liable for the additional payment, as reflected in the following halachah (Maggid Mishneh).

Although a person is liable to bring a guilt offering after taking a false oath, this is only when he admits lying himself, and not when his oath is discredited by the testimony of others. Rashi, Bava Kama 108b derives this from Numbers 5:7: “And they shall admit their guilt.”

Numbers, ibid., requires a person who misappropriates property via a false oath to pay a surcharge equal to one fifth of the new total. He is, however, liable for this surcharge only when he is obligated to bring a guilt offering.

Until the watchman takes a false oath, we do not assume that he is trying to steal from his colleague. It is possible that he misplaced the article, and is just stalling to delay being called to account.

The misappropriation of an entrusted article, sh’licht yad, is considered equivalent to gezelah, robbery. From the time a watchman lifts up the entrusted article with the intent of using it for his own purposes, he is considered to have misappropriated it.

Note the Ra’avad and Rabbenu Asher [cited by the Tur (Choshen Mishpat 352)], who differ and maintain that he is liable for the double payment.

At the time he misappropriated the entrusted article, he became liable to return it to its owner, even if it was destroyed by forces beyond his control. As such, he is not considered to have stolen the article by taking a false oath (which warrants a double payment), because he became responsible for it beforehand (Rashi, Bava Kama 107b).

And yet the watchman is not liable for a double payment for this false oath, because the Torah obligated a double payment only when one claimed that the entrusted article was stolen.

See Hilchot Gezelah Va’Avedah 13:10, which explains that he is granted this status because throughout the time he is caring for the lost article, he is considered “occupied with a mitzvah” and is therefore not obligated to fulfill several other positive commandments.

The Rambam is speaking of an instance where the person took the second oath in a different court, which was not aware that he had taken a false oath previously. For once a person takes a false oath, he is not allowed to take an oath again until he repents (Maggid Mishneh).

One might think that one would be liable for a double payment only once for every stolen article. Therefore, Bava Kama 108a and the Rambam feel it necessary to clarify this law.

The oath that the article was lost. Although ordinarily he would have to pay such a surcharge if he admits taking a false oath regarding an entrusted article, in this instance he is not held liable, for the reason explained by the Rambam.
As explained on several occasions, the meaning of “an additional fifth” is one-fifth of the new total, 25% of the original amount.

Implied is that the partner who did not admit the theft is not required to pay the double payment. The Rambam’s rationale follows that of the preceding law, which states that a person is not obligated to pay both a double payment and an additional fifth for the same claim. Bava Kama 08 ו a develops this concept and asks what is the law when, as in the case at hand, there is a need for the payment of both an additional fifth and a double payment regarding the same suit. The Rambam interprets the Talmud as leaving the question unresolved, and therefore rules that the partner whose oath was refuted is not obligated for the double payment, but if it is taken from him by the owner of the stolen property, the latter is entitled to maintain possession.
The Ra’avad differs with the Rambam, as stated in the notes on Hilchot Nizkei Mammon 2:12, and maintains that in all such cases, if property is seized from its legal owner, it must be returned.
The Tur (Choshen Mishpat 352) offers a different interpretation of the passage in Bava Kama, from which it appears that there is no question regarding the partner’s liability for the double payment. The Talmud’s question concerns the other partner’s liability for the 25% surcharge. Note the Kessef Mishneh’s reconciliation of the Rambam’s interpretation.

And thus freed himself from responsibility.

Once the thief admitted his guilt to the watchman, he is liable for the principal and is therefore not liable for the double payment. The fact that he later denied his obligation to the owner is not of consequence.

E. g., he swore that the article was stolen from him by armed thieves (a situation that is considered beyond his control), and it was not.

Bava Kama 108b questions whether or not taking the false oath causes the watchman to cease being considered the agent of the owner. If he were not considered the owner’s agent, the thief’s admission of guilt to him would have no weight, and the thief would be liable for the double payment.
The Tur (loc. cit.) notes that according to Rashi’s reading of this passage, the thief is liable for the double payment.

Instead of freeing himself of responsibility by taking an oath that it was stolen.

See Hilchot She’ilah UFikadon 8:1.

According to the Rambam’s understanding of Bava Kama, ibid., this question is also left unresolved by our Sages. For we are unsure if the watchman considers the owner to be his agent or not.

With regard to the obligation to take an oath regarding an article entrusted by a minor, see Hilchot Sechirut 2:7.

Implied is that in order for the thief to be required to make the double payment (as stated in the continuation of the verse), the person who entrusts the utensils must be a “man” - i.e., above majority.

A silver coin of the Talmudic era equal to 19.2 grams of pure silver.

Even if they are lost or destroyed by forces beyond his control. Although the Shulchan Aruch (Choshen Mishpat 365:3) does not quote the laws regarding payment of twice the amount of the stolen article, because these are not relevant at the time the Shulchan Aruch was written, it does mention this law, because it clarifies the extent of the responsibility of the watchman.

The Rambam appears to be stating that as long as the watchman has not notified the owner of the return of the stolen article, he is still considered a thief, and the money is considered outstanding. Therefore, if witnesses testify regarding the theft, he is liable to pay twice the sum of the stolen article. See the Or Sameach.
The Ra’avad differs with the Rambam, maintaining that the watchman is considered a thief only when he takes a false oath regarding the stolen property.
The Ra’avad also adds that if the watchman returned the wallet to its owner together with the stolen money, and the owner counted the money, the money is considered to have been returned.

In contrast to a watchman, an ordinary person has no responsibility to the owner. Therefore, the obligations governing its return are more lenient.

The Maggid Mishneh emphasizes that the intent is not necessarily to the place from which the article was stolen, but rather to a safe but obvious place in the owner’s domain. Thus, he will surely notice the article in the near future.

This follows the opinion (Bava Kama 118a) that maintains that when a person counts the money in his possession, he will be aware of the extra amount and will realize that the stolen amount has been returned.

See Hilchot Gezelah 1:8.

I.e., including the sheep that had been stolen.

For we assume that the owner took notice of the return of the stolen sheep and will give it the extra attention it requires.

And unless extra attention is shown to it, it might run away.

The Ramah (Choshen Mishpat 356:1) adds that it is forbidden to do anything that will make it easier for a thief to steal. (See also Chapter 6, Halachah 1.)
See also Hilchot Gezelah 5:1, where the Rambam states that a person who purchases an article obtained by robbery violates the transgression against placing a stumbling block in the path of the blind.

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 person buying the stolen goods, the thief would not steal.

Indeed, there is a more severe aspect to benefiting from someone else’s stealing than from stealing himself. For the person who steals himself comes face to face with his own conduct and has the opportunity to realize his own misdoing. The person who benefits indirectly can, by contrast, rationalize that he himself has not stolen, and in this way avoid self-confrontation.
See also Hilchot Teshuvah 4:3, which states that such a person will never be able to repent thoroughly, because he does not know the identity of the person from whom the article was stolen.

Since the owner has not despaired of the article’s return, and it has not undergone any change, he remains its legal owner. For this reason, the article is lawfully his, even though the thief sold it through acceptable business practices.

If the witnesses cannot testify that the accused thief actually committed theft, the accused can claim to have purchased the article from its original owner.

The owner pays the price the purchasers paid, regardless of whether it is more or less than the market value of the article (Halachah 7).

I.e., according to Scriptural law, the purchaser 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 the procedure described above. Had they not made such an institution, trade in the marketplace would be severely restricted, for people would fear that they are buying stolen goods.

For anyone who purchases an article from a well-known thief must take the risks himself.
Rabbenu Asher differs and maintains that even if the thief’s reputation is known, as long as the purchaser did not know that this particular article was stolen, the owner is required to return the money that the purchaser paid. The Shulchan Aruch (Choshen Mishpat 356:2) follows the Rambam’s ruling, while the Ramah follows that of Rabbenu Asher.

According to Rabbenu Asher and the Ramah, if the purchaser knew that the article was stolen, the thief is not required to reimburse him at all.

With his despair, the owner removes his ownership from the article. The thief himself cannot become the owner, because he is obligated to return the stolen article. When, however, he gives the article to the purchaser, the purchaser becomes the legal owner.
The Maggid Mishneh questions the Rambam’s ruling when the thief sold the stolen article before the owner despaired of its return. Although the Shulchan Aruch (Choshen Mishpat 356:3) follows the Rambam’s ruling, the Ramah maintains that the owner’s despair must precede the transfer of the stolen article.

I.e., according to the Rambam, although the purchaser becomes the legal owner when the original owner despaired and the article changed hands, according to law the owner is still required to repay the purchaser for the value of the article. When the reputation of the thief is not known, our Sages instituted a leniency and did not require payment, as stated below. When, however, the reputation of the thief is public knowledge, no such leniency is granted.
The Ramah (Choshen Mishpat 356:7) states that in his age the secular law required that a stolen article be returned to its owner even though the owner despaired of its return and the article changed hands. Since “the law of the sovereign power is your law,” in such a situation Torah law would also require that the article be returned.

I.e., the purchaser. It is strange that the Rambam uses two different expressions in the same halachah. Perhaps the intent is to differentiate this person from the house-owner mentioned in Halachah 10.

Since the purchaser is in possession of the article, his word is accepted with regard to the price that he paid (Sefer Me’irat Einayim 356:14). He is nevertheless required by Rabbinic law to support his claim by an oath.

Hilchot To’en V’Nit’an 1:2.

I.e., in truth, the law would have required the thief to support his claim with an oath required by Scriptural law (for he is a modeh b’miktzat, he admits a portion of the claim levied against him). Nevertheless, because he is a convicted thief, we assume that he would also take a false oath for his own monetary good. Therefore, the option of taking the oath is given to the plaintiff, the purchaser. See Hilchot To’en V’Nit’an 2:2.

In the instances mentioned above, our Sages feared that if a person was not able to collect the price he paid for an article, commerce would be inhibited. In this instance, however, the creditor had already extended the money or the credit to the thief, and there is nothing gained by making the owner pay for his article. Hence the Scriptural law is not amended.

The Ra’avad differs and maintains that no more than the value of the article shall be returned to the person who took the surety. In his Kessef Mishneh, Rav Yosef Karo offers support for the Ra’avad’s logic, for generally a loan is not given for more than the value of the surety. Nevertheless, he explains that since the additional amount was given only because of the surety, the Rambam’s ruling should be upheld. And in his Shulchan Aruch (Choshen Mishpat 356:7), he rules accordingly.
Note, however, the Siftei Cohen, who quotes the Maharshal as explaining that even according to the Rambam, the original owner need not pay more than the value of the article.

For just as our Sages enacted rules to allow for trade to go on uninhibited, so too, they enacted rules to allow for loans to be given without fear that the security would be expropriated.

Halachah 2.

The Maggid Mishneh states that if the thief specifically requests the second loan only because he is giving the stolen object as security, the lender is entitled to receive recompense from the original owner. The Shulchan Aruch (Choshen Mishpat 356:9) quotes this as a corollary to its citation of this law.

For if our Sages protected the rights of a person who purchased an article from a thief and ensured that his money was returned to him, surely they protected those of a person who purchased the stolen article from someone other than a thief.

The second purchaser is not put at a disadvantage, because he himself did not purchase the article from a thief whose reputation was public knowledge.

In this instance as well, since the thief’s reputation was known, a person who purchases an article from him must take responsibility for any transactions he undertakes.
The Ra’avad rules even more strictly and requires the first purchaser to reimburse the second purchaser directly. It is, however, the Rambam’s ruling that is accepted by the Shulchan Aruch (Choshen Mishpat 356:10).

I.e., that the stolen article itself must be returned to its owner. The incident described in this clause applies when the thief’s reputation is unknown.

See Halachot 2-3.

I.e., in the previous instances, the Rambam spoke of a case in which the thief was apprehended. In this instance, the thief was not apprehended; there was merely a rumor of the theft. Nevertheless, the fact that the owner is known not to sell his personal goods is accepted as support for the report that the goods were stolen, and he is given the opportunity to repurchase them from the people in whose possession they are.
Significantly, in Hilchot To’en V’Nit’an 8:6, the Rambam uses slightly different wording when stating this law. Instead of the expression shem geneivah (“a report of a theft”) used here, he uses the expression chazakah shenignavu (“one can be assured that they were stolen”).

Since these articles are kept by their owner to lend or hire out, they are rarely sold. Hence, this fact and the rumor that they were stolen is sufficient to give their owner the right to repurchase them.
In Hilchot To’en V’Nit’an 8:9, the Rambam gives the following examples of such utensils: large pots used to cook for catering institutions and jewelry hired out to brides.

The Tur (Choshen Mishpat 357) has somewhat of a different understanding of the Rambam’s ruling. He holds that the Rambam maintains that with regard to articles that are lent or hired out, even when there is no report of the theft, if there are witnesses who testify that the object in question is his, the owner’s oath is accepted. And he quotes Rabbenu Asher who does not accept this ruling.
In his Beit Yosef, Rav Yosef Karo explains that had Rabbenu Asher understood the Rambam’s intent, he would not have differed with his ruling. Therefore, in his Shulchan Aruch (Choshen Mishpat 357:1), he quotes the Rambam’s decision. The Ramah, however, mentions that of Rabbenu Asher.

In such an instance, the claim that the utensils were stolen lacks support, for it is possible that he sold them previously.

And is merely taking advantage of the report of the theft to reclaim an object that he voluntarily sold.

For the combination of all the above factors leads to this conclusion (Maggid Mishneh).

Although there was no sign of a scuffle and it is possible that the house-owner sold the utensils to him. If the house-owner is not present, the Shulchan Aruch (Choshen Mishpat 90:14) rules that the person who is caught removing the articles is considered to be a thief.

In such a situation, the fact that he did take them out hidden is a sign that he wanted to conceal the theft.

The Shulchan Aruch (Choshen Mishpat 90:11) states that a Rabbinic oath (sh’vuat hesset) is all that is necessary.

The Ra’avad objects to the Rambam’s ruling, maintaining that not all the conditions mentioned by the Rambam are necessary. The ruling of the Shulchan Aruch (loc. cit.) is closer to that of the Rambam.

See Chapter 5, Halachah 1, which explains the prohibition against purchasing from a thief.

Even if one has no knowledge about the particular item that one is being offered, if most items of this type are stolen, one should not purchase the item in question. Note the apparent contrast to Hilchot Gezelah 6:8 and the resolution suggested by the Kessef Mishneh.

For one may presume that the shepherd is selling goods that rightfully belong to the owner.

For the amount is large enough to attract the owner’s notice, and thus the shepherd would not have sold it without permission.

Hence, one can assume that the owner of the produce knows about its sale.

When a sale is made in the front of a garden, it is a matter of public knowledge, and the owner can be assumed to be aware that such sales are taking place. When it is made in the rear of a garden, this is not necessarily the case, and it is more likely that theft is involved.

This is an obvious indication that theft is involved.

We assume that he is selling produce or wood that belongs to him and not to the owner of the field. The Ramah (Choshen Mishpat 358:4, based on - but not totally identical to - the words of the Tur) states that this applies only when the sharecropper and the owner have already divided the crops. Otherwise, we suspect that the sharecropper is making the sale before the division has been made.
The Kessef Mishneh cites an explicit instance related in Bava Metzia 22a to substantiate the Rambam’s position.

None of the three individuals mentioned has an independent financial capacity. A woman’s earnings and property are on lien to her husband. A servant is the property of his master, and a child does not have an independent financial capacity until he attains majority. (Indeed in certain instances, even after the attainment of majority, he is considered to be unable to act on his own.)
Accordingly, we suspect that they are selling goods that belong to their husbands, masters or parents without their knowledge.

The Galilee refers to the northern hills of Israel. In the times of the Mishnah, flax would grow abundantly there. Women would work spinning flax and weaving linen garments. The Sharon is a plain off the coast in the center of the country. In the times of the Mishnah, there was a flourishing cattle trade there (Rashi, Bava Kama 118a).

For this is a small amount of wool and is not valuable.

For this is a larger amount and would not be ignored by the owner.

The weavers would leave a number of strands of wool hanging loosely at the end of a garment to preserve the weave when the garment is being laundered the first time. The launderer is entitled to take three of these strands, for it is taken for granted that the owner will not mind his taking such a small amount. Taking a larger amount, however, is considered to be theft.

The Ra’avad and the Maggid Mishneh define this to be twice the length of the needle.

For this is considered a cloth of significant size, as reflected in the Sabbath laws and the laws of ritual purity.

In that era, the customer would provide the fabric and the thread for a garment.

And not as a contractor.

Indeed, it is given precedence over the above rules.
The prevailing local customs are followed because one of the governing principles in Jewish business law is that any conditional agreement made between the principals in a business transaction is binding. When there is a standard local custom, it is as if both parties agreed to follow this practice.

Although it is likely that the comber stole the wool in the pillow, one may purchase the pillow from him, because by making the wool into a pillow, the comber is considered to have changed the article significantly enough for it to be considered his own (Chapter 1, Halachah 12).
The Maggid Mishneh notes that from Hilchot Gezelah 2:10, it would appear that such a change is not significant, for it is possible to empty the wool from the pillow easily. He explains that an exception is nevertheless made in this instance, for we are not certain that the wool is in fact stolen.

For we assume that it was stolen.