Shabbat Parashat Tetzaveh | 5769
Stealing a Stolen Object
Hemdat HaDaf HaYomi
This week in the Daf Hayomi (65a) we learned the guidelines used to determine how much a thief has to pay for the object that he stole. The basic rule is that, if the object stolen no longer exists, then the thief pays according to the value of the object at the time of the theft. However, if the object's value rose after the time of theft, and the thief actively damaged the object, for example, he stole a barrel of wine and later on broke it or drank it, then he has to pay according to its higher value at the time that it was damaged.
The Ketzot Hachoshen (34, 3) questions this Halacha on the basis of the Mishnah in the beginning of the Perek (62b) that states: "One who steals from a thief does not pay payments of Kefel (the fine that requires the thief to pay twice the value of the stolen item)." The Ketzot learned from this Mishnah that for an object that is already stolen, there is no concept of stealing again for which one can be liable. Therefore, he asks, why is the thief who broke a barrel of wine, which he already stole, held liable? The Ketzot thus concludes that the thief who broke the stolen barrel is not considered to have committed an additional act of theft, but rather he is held liable because he is considered a Mazik, a damager, as he damaged the owner's barrel when he broke it (there are implications to being held liable for damage as opposed to theft). Therefore, if at the time of the breaking of the barrel it was worth more than at the time of theft, we can consider him a damager and obligate him to pay the higher value.
The Netivot (34, 50) in principle agrees with the Ketzot that one who steals a stolen object is not obligated to pay the owner; since the object was already taken from them, he did not cause the owner any further harm. However, claims the Netivot, if one does an action which increases the degree of the theft, then he can be held liable as a thief. Therefore, according to the Netivot, when a thief breaks the stolen barrel, this can be seen as a increase in the theft, since until he broke the barrel it could have been returned to the owner, and now it can no longer be returned. Thus, the breaking of the barrel is considered an act of further theft and the time of breaking is also considered a time of theft, and therefore the thief is obligated to pay according to the time of theft during which the barrel was worth more.
However, the Imrei Moshe (siman 32) and other Achronim disagree with the basic assumption of the Ketzot and the Netivot. They claim that the Mishna stated only that there is no fine of paying double for one who steals a stolen object, but he still needs to pay the value of the object itself. According to their opinion it is clear that there is no problem with defining a thief, who stole a barrel of wine and then broke it or drank it, as committing a further act of theft, and he can thus be held liable by the laws of theft for this action.
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This edition of Hemdat Yamim is dedicated to the memory of
Yehudah ben Naftali Hertz Cohen (Kamofsky)
as well as
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by
and Louis and Lillian Klein, z”l.