Genevah - Chapter 5

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.