THEFT () AND STOLEN GOODS.

By: Wilhelm Bacher, Lewis N. Dembitz

—The Moral Aspect:

To steal is to break one of the Ten Commandments, "Thou shalt not steal"; and it is immaterial whether one steals from an Israelite or from an idolatrous Gentile, from an adult or from a child. The value of a peruṭah was regarded as the minimum value the theft of which constituted a complete transgression. But it is forbidden to steal anything, even as a joke, or with the intention of returning it or of paying for it; for by acting thus a person learns to steal in earnest (B. M. 61b; Sanh. 57a).

Receiver Worse than Thief.

It is forbidden to buy a stolen article; indeed, it is a great sin; for thereby the hand of transgressors is strengthened, and the thief is led to steal more. If there were none to buy, there would be none to steal; whence the Scripture, "Whoso is partner with a thief hateth his own soul" (Prov. xxix. 24).

And one should not buy from men whose employment indicates that the articles offered by them belong to their employers. In the Talmud this law is applied mainly to herdsmen. Wool or kids should not be bought from them; milk and cheese only in the wilderness, not in the settled country. However, one may buy four sheep or four fleeces from the shepherd of a small flock, and five from the shepherd of a large one, there being no presumption against these being his own. Nor should grain or fruits or wood be bought from those charged with watching such articles, unless the sellers offer their wares in public, with the baskets and scales before them; and garden stuff should be purchased only at the front gate of the garden, not at the back gate. It is, however, allowable to buy produce from a tenant on shares. Goods should not be bought from housewives, from servants, or from children, except those articles which such persons are in the habit of selling with the knowledge of the owner. Nor should remnants be bought from an artisan working up for his customers materials which by the custom of the country do not belong to him; and in all cases it is forbidden to buy from a person who says "Hide it" (B. Ḳ. 118b).

Criminal and Civil Liability: Punishment Double Restitution.

There is this distinction between theft and robbery: the thief takes the property of another secretly and without his knowledge, while he who takes openly by force is not a thief, but a robber. One is not punished as a thief for stealing either slaves, or documents having no intrinsic value. On the principle that where the Torah prescribes another penalty for a forbidden act stripes are not inflicted, the only punishment for theft is double restoration, and for stealing an ox or sheep, and selling or slaughtering it, fourfold and fivefold compensation (Ex. xxi. 37, xxii. 3); and on the strength of the words (ib. xxii. 8) "he shall pay double to his neighbor" it is held that he who steals either from a Gentile or from the Sanctuary is held only for single compensation: in other words, he is not punished at all. No compensation may be recovered from infants—not even simple restitution if the stolen article has been consumed—nor from a slave, as he has no property; but should the latter be manumitted, he is then liable for double compensation. It is, however, the duty of the court, when a boy is caught stealing, to cause a moderate whipping to be administered to him, and to a slave a sound whipping, so as to check the stealing habit. The master is not liable for what his slave steals any more than for damage arising from the latter's negligence.

The verse quoted above refers to the depositary who steals deposited goods. It orders double compensation only from him whom the judges condemn. Hence this penalty can not be imposed where the thief confesses; and opinions in the Talmud go so far as to relieve him, if he confesses to the court, of all but simple restitution, even though witnesses appear against him immediately thereafter. Nor can he in any case be sold for a Hebrew servant in satisfaction of more than simple restitution (Ḳid. 18a, expounding Ex. xxii. 2). He who steals a thing from a thief before the owner has given up the hope of recovery, and before the thing has been changed in substance, is not liable to the penalty, either to the first thief or to the owner. To make him liable for double compensation there must be such a taking of possession by the thief as would in a sale give "ḳinyan"(see Alienation and Acquisition); hence pulling the article or beast as long as it is within the owner's premises, even with delivery to a third person, is not sufficient; but lifting it, which always gives ḳinyan, completes the theft (B. Ḳ. vii. 6).

The fourfold restitution for an ox which the thief has sold or slaughtered and the fivefold restitution for a sheep or goat so disposed of are thus treated in the Mishnah (ib. vii. 2):

Fourfold and Fivefold Restitution.

"He who has stolen, as proved by two witnesses, and has slaughtered, as proved by these or by two others, must pay fourfold or fivefold; he who has stolen and sold on the Sabbath, stolen and sold for idol-worship, stolen and slaughtered on the Day of Atonement, stolen his father's beast and slaughtered or sold and whose father then dies, or stolen and slaughtered and has then consecrated, pays fourfold and fivefold: he who has stolen and slaughtered for use as a medicine or as food for dogs, or has slaughtered and the carcass proves to be unsound ["ṭerefah"], or has slaughtered common food within the Temple yard, pays fourfold or fivefold."

The validity of the last two provisions is disputed. After another section dealing with the liability of plotting witnesses (see Alibi) who have testified against the supposed thief (ib. vii. 4), the Mishnah proceeds:

"He who, according to two witnesses, has stolen and, according to one witness or his own admission, has slaughtered or sold pays twofold restitution. but not fourfold or fivefold; he who has stolen or slaughtered on the Sabbath, or for the purposes of idol-worship, or has stolen from his father and, his father having died, has sold and slaughtered thereafter, or has sold and consecrated and thereafter sold or slaughtered, pays double, but not fourfold or fivefold [with a disputed distinction, ib. vii. 5]. He who has sold all but a one-hundredth part thereof [which refers to other than horns or fleece] or has sold an article in which he himself has a joint interest, or has slaughtered in an unlawful manner, pays twofold, but not fourfold or fivefold. He who has stolen within the domain of the owner, but has sold or slaughtered outside thereof, pays fourfold or fivefold; but if he has stolen and sold or slaughtered all within the owner's dominion he is free."

The depositary who, when he has converted goods to his own use, claims that they are lost, is deemed a thief (Ex. xxii. 8); and if the deposit is an ox or a lamb, which he has sold or slaughtered, he is liable to fourfold or fivefold restitution (B. Ḳ. 106a).

In the baraita under these sections there are a number of other distinctions, especially as to the conditions and value of a stolen beast at the time of the theft and the time of the trial. The restitution, beyond the simple return of the stolen thing, is in all cases to be made in money, not in kind.

It happens sometimes that, in order to avoid disgrace, a thief voluntarily restores a stolen article without acquainting the owner of the restitution. In such a case, if he puts it back in its place and it is lost or stolen before the owner who has missed it has knowledge of its return, the repentant thief is liable for the loss (ib. 118a, where some nice distinctions will be found).

The Stolen Article; Title: Sale in Market Overt.

As a general principle, when the stolen thing is given, bartered, or sold to a third person, or when, upon the death of the thief, its possession passes to his sons, the title remains in the former owner; and his rights are more fully enforced as regards goods stolen than those taken by robbery and force. However, the Talmud speaks of an "institution of the market" (ib. 115a), according to which, when the seller of the stolen goods is not a notorious thief, the owner should repay to the buyer the price—generally much less than the value of the goods—which the latter has paid the thief, should take the stolen thing, and should then go to law with the thief regarding the sum paid. This institution calls to mind the sale in market overt under the common law of England. But, to bring the institution into play, the thief must have sold for money: it does not apply where he has paid a debt with the stolen thing; but it does apply where he has pawned the thing for an advance of money.

It would seem that the circumstances mentioned above, under which it is forbidden to buy goods because they are presumably stolen, would affect not only the conscience but also the title of the buyer; but the codes do not say so explicitly, referring only to purchase from a notorious thief. Certainly the words "Hide it" are an indication of theft.

If the stolen thing has been sold after the owner has lost all hope of recovery (see Robbery) or after it has lost its shape and name, the title passes to the buyer. It is remarked that where the stolen articles are (Hebrew) books, the presumption will hardly ever arise that the owner has lost all hope of recovery, inasmuch as the thief can not sell them to Gentiles, but only to Israelites.

When implements, books, or other articles in a house are not kept for sale, and some are stolen, and the owner finds them and recognizes them as his; or when goods are kept for sale, but the owner, after a theft, recognizes articles that were kept to be hired out, then the owner should prove by witnesses that they are his, and the buyer should swear in solemn form what he has paid for them. On repaying this amount the owner should recover his goods, but not otherwise; for, as the Mishnah (ib. x. 3) says, he might have sold them to a third person, from whom they were bought. This passage in the Mishnah is a basis for the "institution of the market" found, as above cited, in the Talmud.

W. B. L. N. D.