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Shabbat Parashat Vaetchanan| 5766
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Question: This true story involves four people, whom I will refer to by number. 1 stole similar computers from 3 and 4. 2 is a go-between who offers to sell a computer for 1 to 3 for 1,500 shekels. 3 apparently thinks he is paying to get his old computer back, but it’s really 4’s computer. 4 finds out and demands of 3 to return his computer, but 3 says he will give it back only if 4 pays him the 1,500 shekel he paid for it. If 3 will not go to a rabbinical court, can 4 go to the police?
Answer: 4 may go to the police in regard to the alleged thief, 1, which he is apparently reluctant to do for whatever reason, which is not our business. We would not go to the police in regard to 3, who is a victim, not a culprit. Of course, we have yet to determine if 3 is a victim who has reacted correctly or not. As we always point out in this type of question, we cannot make any determinations to obligate someone who has not had the opportunity to formally present his side before beit din. We can only tell someone if, according to his version of the story, he has a right to act in a certain way.
We have to break the story into two possible scenarios. When an object is stolen, it is normally incumbent on the thief to return the object (Vayikra 5: 23). For that matter, anyone who gets access has a mitzva to return it as a lost object. However, things can occur to release the original owner’s control over the object. One factor is yeiush, when the original owner gives up real hope of recovering the object. If there was yeiush and then the thief sold it to someone else, then the buyer acquires the object and does not need to return it to the original owner (Shulchan Aruch, Choshen Mishpat 356:3). If that is the case over here, then 3 can either keep the computer or offer it back to 4 as a sale item. (See opinions in Shulchan Aruch and Rama ibid. regarding if the buyer must pay the victim the stolen article’s added value if he received a discount on it.)
There are rules to try to determine if there is a presumption of yeiush. The general rule is that when one Jew steals from another Jew, whether by force or by avoiding people’s notice, there is a presumption of yeiush (Shulchan Aruch, ibid. 368:3). However, the Rama continues that the proper custom is to return the stolen article to its original owner in any case, a practice that apparently began because of the law of the land (see Rama 356:7). From the sound of your case, it seems likely that there were special circumstances under which there might not have been yeiush.
When a third party pays the thief to buy a stolen object without yeiush, the basic principles of the law dictate that he has thrown out his money and the victim does not have to reimburse him. However, there was a rabbinical provision (takanat hashuk)to reimburse the buyer the amount that he spent for the object. This was instituted out of fear that people would be overly nervous that the money they spend to buy objects could go to waste (Shulchan Aruch 356:1). However, the Rabbis realized that this only fair if the buyer did not have reason to believe that he was buying a stolen object. However, if the seller was a known thief (ibid.:2) and at least if the buyer knew it was a stolen object (see Rama, ad loc.) he doesn’t deserve to be reimbursed.
In this case, the buyer knew he was buying a stolen object and so it is not the standard case of a sale in which the takanat hashuk was made. On the other hand, perhaps the takana was a broad one, made in cases where the buyer cannot be accused of foul play, of knowingly or semi-knowingly buying a stolen object for his own benefit. In this case, the buyer’s intention seems to have been reasonable. From the general approach of the poskim it appears that the more inclusive outlook on the takana is correct. Thus, we believe that 3 has a right to demand the 1,500 shekelsthat he spent on the computer from 4.
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