Genevah - Chapter 1

A p’rutah is a copper coin of little value (half a barley-corn of silver), which was used in the Talmudic age.

Sefer HaMitzvot (Negative Commandment 244) and Sefer HaChinuch (Mitzvah 224) include this as one of the 613 commandments of the Torah.

We have cited this as the source of the verse because the Hebrew states, אל תגנב, using a singular form of the word. Note Chapter 9, Halachah 1, which says that the verse from Exodus refers to kidnapping. Leviticus 19:11 states: “Do not steal” using a plural form. Sanhedrin 86a states that this refers to stealing property. In Sefer HaMitzvot, and in certain manuscripts and early printings of the Mishneh Torah, this latter verse is indeed used as the proof-text.

Whenever a person is liable to make compensation for the violation of a prohibition, he is not punished by lashes (Hilchot Gezeilah 1:1; Hilchot Sanhedrin 18:2).

Implied also is that stealing from a gentile violates a prohibition of the Torah. See Chapter 7, Halachah 8, and the Rambam’s Commentary on the Mishnah (Keilim 12:7).

Although one is not liable for the transgression of a commandment unless one steals the worth of a p’rutah, all theft is forbidden. To cite a parallel: one is liable for transgressing a prohibition only when one eats an amount of prohibited food equal to the volume of an olive. Nevertheless, eating even a smaller amount is forbidden by the Torah (Maggid Mishneh; Sefer Me’irat Einayim 348:1).

For this reason, it is customary in several communities not to “steal” the matzah on Pesach.

Rashi (Bava Metzia 61b) and the Shulchan Aruch (Choshen Mishpat 348:1) interpret this to refer to a person who wants to give a colleague a sum of money that he knows he will not accept. Therefore, he intends to steal from him so that he will be liable to pay him double. There is, however, no hint of this interpretation in the Rambam’s words.

Bava Kama 79b derives this definition of robbery from the use of that verb in II Samuel 23:21, which speaks of Benayahu ben Yehoyada’s taking a javelin frpm a Philistine.
The distinction between a thief and a robber is important, because a thief is required to pay twice the amount of stolen property, and four or five times the amount if he steals and sells or slaughters a sheep or a cow. A robber is not obligated for such penalties.

I.e., he does not openly confront the owner, but rather attempts to steal without his knowledge. Even if he is later discovered, he is still considered a thief, because that was his original intent. He arms himself so that if he is discovered, he will be able to confront the owner. His intent, however, is that he be able to steal unnoticed.
The Maggid Mishneh offers this interpretation to resolve a question asked by the Ra’ avad, who maintains that an armed bandit is considered to be a robber. The Maggid Mishneh explains that there are two types of armed bandits: a highwayman who robs people at gunpoint, and an armed thief.

The Rambam considers the obligation to make double restitution and the other laws pertaining to the judgment of a thief to be one of the 613 mitzvot of the Torah (Sefer HaMitzvot, Positive Commandment 239). (See also Sefer HaChinuch, Mitzvah 54.)

I. e, he need not purchase two of the stolen articles and give them to the victim of the theft. Financial restitution is sufficient.

See the Guide for the Perplexed, Volume III, Chapter 41, which explains that when a person desires to cause a colleague a loss, his atonement is to repay him the amount he desired him to lose. See also Deuteronomy 19:19, which states: “You shall do to him what he desired to do to his colleague.”

See Chapter 3, Halachot 8-9.

See Hilchot Nizkei Mammon 2:7-8, which defines a fine, קנס in Hebrew, as a payment that is. more or less than the principal.

In the Guide for the Perplexed, Volume III, Chapter 41, the Rambam explains why these animals were set aside as distinct. They pasture in the fields and thus are easier to steal than other objects that are kept in a home. In order to deter their theft, the Torah mandated a more strict punishment.

When discussing the laws of theft, Exodus 21:37 specifically mentions “a man who steals.” Nevertheless, Bava Kama 15a equates a man and a woman with regard to all the punishments in the Torah.

Even if a woman is independently wealthy or earns her living, she cannot be obligated to pay, because her husband is entitled to her wages and the right to derive benefit from the property she owns. See Hilchot Chovel UMazik 4:21.

The wording that the Rambam uses implies that if the stolen article itself is found in the woman’s possession (or in her husband’s possession), it must be returned to its owner. If, however, it has been destroyed, the entire amount is considered to be a debt (Maggid Mishneh). The Shulchan Aruch (Choshen Mishpat 349:1) adds that if the woman possesses an article that she received in exchange for the stolen article, that must be given to the owner of the stolen property.

The same laws apply to a deaf mute or a mentally incompetent person (Sefer Me’irat Einayim 349:6).

For a child is not liable for any punishments, since he is not considered to be of sufficient mental competence to take responsibility for his conduct (Bava Kama 39a). Nor are his parents held liable for his deeds. See Hilchot Chovel UMazik 4:20.

In contrast to a woman or a servant, the child was not at all responsible for his conduct at the time he stole.

For a servant does not have any independent financial capacity; everything he acquires belongs to his master. Nevertheless, since he is mentally. competent, the obligation remains incumbent upon him.

This rationale is provided by Bava Kama 4a.

For at that time, he becomes financially independent and must meet the obligation incumbent upon him.

Since a servant is past majority, he is capable of enduring more severe punishment than a child.

After stating that a stolen article must be returned, the Rambam discusses the particular laws regarding the return of such an article. The question arises: When the article increases in value after the theft, what must the thief return? Is it sufficient for him to return the value of the original article? Or must he return the added value as well?
The fundamental principle is that as long as the article is considered to belong to its owner, it and any increment must be returned to him. When the stolen article is acquired by the thief, the thief is entitled to the increment.
When does the thief acquire the article? As stated in the following halachah, when the stolen article undergoes a change that affects the nature of its being (נשתנית). Alternatively, even when the article still belongs to its original owner, if the owner despairs of its return (יאוש), the increment is acquired by the thief.

The Maggid Mishneh states that this applies when the sheep was pregnant and had wool at the time that it was stolen. This is evident from the Rambam’s wording in Hilchot Gezelah 2:7. When the sheep was already pregnant, the Rambam· maintains that bearing a lamb is not a change sufficient to cause the thief to acquire the article

I.e., he must pay the value of pregnant sheep and/or one prepared to be shorn. If the sheep was not pregnant, nor was its wool grown at the time of theft, and it became pregnant and bore a lamb afterwards or grew wool afterwards, those offspring and that wool belong to the thief. For this is obviously a change (Maggid Mishneh).
The Rambam’s opinion is accepted by the Shulchan Aruch (Choshen Mishpat 354:1). The Ramah quotes the opinion of the Ra’avad and the Tur, who maintain that even if the animal gives birth or is shorn before the owner’s despair of the animal’s return, the increase in value belongs to the thief. For this is considered a change in the nature of the stolen article. See Sefer Me‘irat Einayim 354:1; Siftei Cohen 354:4.

Since the increase in value is a direct result of the thief’s efforts, he is entitled to it.

Despite the owner’s despair, the thief is not able to acquire the stolen article, because Leviticus 5:23 commands: “And he shall return the article obtained by robbery.” As Bava Kama 66a explains, as long as the article has not undergone a fundamental change, it must be returned to its owner.
See the rulings of Rabbenu Asher and the Tur (Choshen Mishpat 353), which mention that there is a Talmudic opinion that maintains that the owner’s despair enables the thief to acquire the stolen article. Although it is not accepted as halachah, with respect of this opinion, if a thief consecrates a woman with such an article, the marriage is considered as binding in certain contexts. For example, if the woman wants to marry someone else, she must be given a divorce.

E. g., he stole wood and used it to build furniture; he stole wool and used it as fabric for clothes. Alternatively, a calf grew and became an ox.

Although the owner demanded the return of the stolen article, it is not given to him. All the thief is required to do is to pay the owner the value of the article at the time of the theft.

By overworking it or underfeeding it.

Whether that is more or less than the animal’s present value.
The Ramah states that the consideration given the thief when the animal is fattened is granted only when the thief undertook to fatten the animal. Otherwise, the increase in the animal’s value is governed by the laws stated in the following halachah.
The Ramah 354:4 also states that this consideration is granted only when the thief returns the animal alive. If he slaughters it, he must pay its value at the time the matter is brought to court, as reflected in the following halachah.

Which would make him liable to pay four or five times its price.

Although this change comes about as a natural process, without any effort on. the thief’s part, it is sufficient to cause the status of the animal to change.

This halachah deals with an instance when the value of the article is reduced because of market fluctuations.

The thief is obligated to restore the article immediately after stealing it. It is the article’s value at that time which is significant. (See Sefer Me’irat Einayim 354:5-6.) Even if he possesses the stolen article after its value depreciates, it is not sufficient to return the article itself; he must pay the greater amount (Bava Kama 65a).

Until an animal is slaughtered or stolen, or a utensil is destroyed, it remains the property of its owner. Since the thief caused it to be destroyed, the amount for which he is responsible is calculated at that time. When quoting this and the following laws, the Shulchan Aruch (Choshen Mishpat 354:3) does not mention the double payment, because today the obligations associated with fines are not imposed by the courts.

Sefer Me’irat Einayim 354:7 explains that generally loss resembles negligence, and therefore the thief is liable, because the loss of the article is considered his fault. Ketzot HaChoshen and Netivot HaMishpat differ and maintain that even in an ordinary case of loss, the thief is not held responsible for the higher amount. It is only when he himself causes the article to be lost - e.g., he throws it in a river - that he incurs that obligation.

This time the principle mentioned in the previous note works against the thief’s interest, and he is obligated to pay the greater amount for both the principal and the fine.

According to the Sefer Me’irat Einayim (loc. cit.) this means that the negligence of the owner was not the cause of its loss.

Since the thief is not personally responsible for the animal’s death or the article’s loss, his obligation is for the value of the article at the time it was stolen, and the calculation of the double payment is also based on that amount.

I.e., the market value of these types of articles remained the same, but the particular article became damaged and its value was reduced.

This law was instituted for the benefit of the original owner. Our Sages·Jelt that a person would rather have the money with which he could purchase a new utensil than a broken utensil and the monetary difference in its value. The Ra’avad differs with the Rambam’s ruling with regard to the double payment.

For the above law was instituted for the benefit of the original owner. If for any reason they desire to forgo this benefit, they may. (See Hilchot Gezelah 2:15.)

As long as the owner does not despair of the return of the stolen article, and the article remains unchanged, it continues to be the property of the original owner and must be returned to him.

When the owner despairs of the article’s return (יאוש) and it is transferred to another person (שינוי רשות), the transaction is effective and it becomes· the property of the purchaser.

For as mentioned above, the despair of an article’s return is not sufficient to cause it to be acquired by the thief.

Rashi, Bava Kama 62b, derives this from Exodus 22:6, which states that double restitution must be paid when an article is “stolen from a person’s house.” Implied is an exclusion when the article is stolen from the house of a thief.

For a change from a living animal to a slaughtered one is considered significant enough for it to be acquired by the thief. As mentioned in the notes on Halachah 11, שינוי, a fundamental change, is significant enough for the animal to be acquired by the thief.

Or four or five times its worth if he sells or slaughters it. Since the owner despaired of its return, and the stolen animal changed hands, the purchaser is considered to have acquired it as his own.

For the purchaser is not considered to have acquired the stolen animal.