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Shabbat Parashat Noach 5776

P'ninat Mishpat: A Partner in Crimes Part in Returning Stolen Property

(based on Shut Chatam Sofer, Choshen Mishpat 133)

Case: Reuven came forward and admitted that he and Shimon stole a bundle of wool from Levi due to their poverty. Now that his financial status has improved, Reuven wants to pay Levi the value of half the bundle. Shimon also admits to the theft but says that he does not have money from which to pay. Levi wants Reuven, who can afford to pay for the entire theft, to do so. 


Ruling: We should consider who actually took the wool from Levi’s possession, which is relevant even if Reuven and Shimon generally acted together and later divided up the wool between them. Since there is no shelichut (agency) for sins, whoever took it out is the lone thief. If they both held it together at the critical point that is considered the theft, they are obligated as partners, and if they then divided the spoils, each one is obligated only for the part that he received and not for his friend’s part.  

In the case where one stole and then gave to his friend before the victim gave up hope, the halacha is that the victim can demand payment from either the thief or the one who possesses the stolen item. Therefore, if Reuven stole the wool and gave part to Shimon, then Levi has a right to make demands on Reuven even for Shimon’s part.

On the other hand, a thief’s practical obligation is only if the object is intact or the thief has benefitted from it or from that which was exchanged for it. In contrast, if the object was lost or wasted, even if it was through the thief’s negligence, then we apply the special exemption for a thief from having to pay in order to not discourage people from repenting from their ways of crime (see Shulchan Aruch, Choshen Mishpat 366). In such a case, the thief would only have a moral obligation, which is not enforceable. Only if Reuven was holding on to Shimon’s part of the theft when something happened to it, then Reuven would be obligated as a watchman.

If Reuven and Shimon cannot agree on the pertinent facts, then Reuven will pay his half and Levi will place a cherem against whoever is withholding the second part improperly. Shimon is not believed as one witness to testify that Reuven took it (and would have to pay Levi), even though he is obligated in theory to pay either Reuven or Levi if and when he has what to pay from. That is because Shimon is likely to have a preference to owe Reuven, his partner in crime, than to have an obligation to Levi, who is more likely to embarrass him. (The gemara (Bava Batra 45a) says that one is disqualified from testifying about a sale he made to a friend when he does not have other property from which to pay because he has an interest that he will have property from which his creditors can make payment. Tosafot explains that we are not concerned that it will make a difference because of the prospect that he will be rich enough to pay. The explanation is that when he has only a modest amount of money, if he wanted to avoid payment he could hide his resources. Although it is possible that he will become so well-off that he is not capable of hiding his money, that prospect is uncommon for a presently impoverished person.)

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