Shabbat Parashat Yitro 5774
P'ninat Mishpat: Accessory to an Alleged Crime(based around Shut HaRosh 104:1)
[The Rosh, Rav Asher ben R. Yechiel, was one of the most influential Rishonim. Born in
Dayanim asked the Rosh the following question to help them adjudicate properly. Reuven suspected that his wife’s brother Shimon was involved in the stealing of valuables from his house. He suspected that his wife took the objects out of the house and that Shimon then helped her hide them.
First, there are no grounds for an oath because Reuven’s claim is not based on knowledge but on suspicion. There is a short list of cases in which oaths are made based on a claim of doubt, and this is not one of them.
Second, even if Shimon did what he was suspected of, he would not be obligated to pay. Reuven’s wife is described as stealing the valuables. After she made an acquisition in regards to the laws of theft, the object was stolen, and Shimon’s role in helping her would not make him a thief who would be obligated to pay. While there are grounds to claim that Shimon acted as a mazik (damager) by enabling his sister to hide the items, it has not been substantiated that she would not have been able to do so on her own. Furthermore, once the objects were stolen, the main damage had already occurred, and making it less likely that Reuven would recover them is not direct enough to be considered damage. (E.g., if one obstructs the path of someone chasing after a thief, this is not direct damage which obligates one to pay.)
Furthermore, Shimon says that his sister had a right to take the objects [Ed. Note – it is not clear from the question based on what grounds]. Since there are no witnesses that she took the objects, if she admitted in court that she took them but that it was justified, she would be initially believed. Although Shimon’s witnessing of the event is like witnesses of the seizure in regards to himself, in which case, she should not be believed it was justified, Shimon also says that he knows that she is justified. Even if it is wrong in the first place to seize property due to a debt, that still does not turn the person who seized into a thief.
For all the reasons mentioned, beit din should not make Shimon swear that he was not involved in the hiding of valuables from Reuven’s house.
[See Shurat Hadin, vol. III, p. 288, who learns from here that one who prevents his friend from recovering something that he lost is not obligated, legally or morally, to pay the owner.]
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