Shabbat Parashat Tzav | 5769

Hemdat Hadaf Hayomi: Encouraging Thieves to Repent

Hemdat Hadaf Hayomi

This week in the Daf Hayomi (94b), we learnt that Chazal instituted that, if someone had money stolen or if he borrowed money with interest and already paid the interest, then he should not accept his money in return. The reasoning for this Halacha is that, if we would obligate the thief or lender to pay, then he would refrain from repenting and fixing his ways, because of the large debts that he would owe. The Gemara states that, if the object itself that was stolen is still in the hands of the thief, then it must be returned, but if it no longer exists, then payment should not be accepted from the thief.

Many Rishonim (Tosafot "Biyemei Rebbi", and more) proved from many places in the Gemara that the Sages forced thieves to pay even in cases where the object stolen no longer existed. There are three main resolutions to this contradiction:

1. Rabeinu Tam (Tosafot ibid.)- The institution of our Gemara was limited to the time period when Rabbi Yehudah Hanasi was functioning as head of the Sanhedrin, but not for future generations. According to this opinion, this Halacha is not valid today and thieves must pay, and payment is to be accepted from them.
2. R"I (Tosafot ibid.)- The institution was only for thieves and lenders for whom this illicit income was their main occupation. The reasoning is that, for these people, if forced to pay, the debts would be staggering, but someone who stole or lent with interest on an irregular basis must pay and payment is accepted from him.
3. Rambam (Gzeila Ve'aveidah 1, 13)- The institution was only for thieves and lenders that came on their own to repent and return what they stole or the interest they took, but if they did not come on their own, but rather the Beit Din obligated them to pay, then they must pay and payment is accepted.

The Tur (Choshem Mishpat 366, and this is the opinion of the Nimukei Yosef as well) combined the opinions of the R"I and the Rambam and ruled that the institution is only for a thief whose main occupation was theft and who came on his own to repent.  The Shulchan Aruch (Choshen Mishpat 366, 1) rules this way as well.

The Rishonim limited this Halacha in a few more ways. The Magid Mishneh (in his commentary on the Rambam ibid.) states that, from the wording of the Gemara that "one who accepts payment the Sages are not pleased with his actions," we see that the Beit Din does not force the person whose money was taken unjustly not to accept the payment, and if he insists that he wants the payment then the Beit Din must force the thief to pay.

The Tur writes that if the thief insists on paying than one may accept from him, and this is accepted by the Shulchan Aruch (ibid.).

In Sefer Chasidim by Rabbi Yehudah Hachasid, it is stated that if the person from whom the money was stolen is himself in debt to others and is unable to pay his debts, then he should accept the payment in order to repay his debts, as the institution was not meant to come at the expense of other debtors. This limitation is quoted by the Shach in his commentary to the Shulchan Aruch (ibid, 1).   

the damage never occurred.  However, if a person damages an object, even though the damage can be fixed, the fixed object is considered to be something new, and therefore the damager must pay for the damage in such a case.     

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