From the Daf: Was Robin Hood Ever Right? Stealing from a Ganaf

From the Daf – Was Robin Hood Ever Right? Stealing from a Ganav

The British folk tale of Robin Hood is well-known but its details are murky. Some contend that he and his band of Merry Men stole from the rich to give to the poor. Others contend that he only stole from people who were thieves themselves – nobles who overtaxed the local population.

What does halacha have to say about this?

On the first point, stealing from the rich is the same as stealing from anyone else. It’s prohibited on a Torah level – an issur de’oraisa.

What about stealing from someone who is himself a thief?

There is much discussion in the achronim on this topic.

The Starting Point – Do you Pay Keifel?

The starting point for this discussion is a Mishnah in Bava Kamma.

The Mishnah in Bava Kamma (62b) says that if one stole an item that had already been stolen from its initial owner, the second thief doesn’t have to pay twice the value of the stolen item to the owner.

Generally, when one is caught stealing, the thief pays twice the value of the stolen object to the original owner (keifel). However, if the stolen item wasn’t in the house of the owner and was instead taken from a thief that had previously stolen it, the second robber only pays for the actual value of the stolen item. Not keifel.

Rashi explains that this is learned from the verse “v’gunav mibeis ha’ish – it was stolen from the house of the man (victim).” The thief only pays double if he steals from the house of the victim. Not if he steals from the house of another thief.

That said, did that second robber still violate a Torah prohibition?

The Ketzos Hachoshen (34:3) says that absolutely yes. However, the violation is not any of the two direct Torah prohibitions against theft – “lo tignovu” and “lo tigzol”. These prohibitions only apply when stealing directly from the initial owner. Why?

The Ketzos notes that when something has already been stolen and is in the house of the thief, it’s no longer in the domain of its owner. In fact, the Gemara in Bava Kamma (69a) says that if an item has been stolen, the owner doesn’t have the power to consecrate it because it’s no longer in his domain. Therefore, if that item would then be stolen from the initial thief, that would not be a theft-related violation, as it had already left the owner’s domain before the second robber stole it.

Instead, the prohibition for the second robber is the prohibition not to cause damage to other people. (Where there is a prohibition to not cause damage to others is its own discussion – quite possibly it is itself derived from the prohibition against theft.)

What’s the difference whether the prohibition is a prohibition of theft or not?

1. Can the second robber be a valid witness? Someone convicted of theft is not allowed to be a witness in beis din. Since the prohibition is not a prohibition of theft, the second robber can still be a valid witness in beis din.
2. Is the second robber sold as a slave if he no longer has the stolen item and doesn’t have the means to pay the owner back? Normally, if a thief doesn’t have the means to repay what he stole, he can be sold into slavery in order to repay his debt. This would only relate to theft, not to someone who damages others. The Minchas Chinuch (Mitzvah 42) questions what the halacha would be in our case: if someone stole an item from the house of another thief and can’t repay the victim, is he sold into slavery? The Minchas Chinuch leaves the matter as a tzarich iyun – a question that needs further clarification. Possibly, it may depend on whether the prohibition violated by the second robber is a theft-related prohibition or not.
3. Does the second robber have a Torah obligation to return the stolen item? Normally, a thief has a Torah obligation to return the item that was stolen, as learned from the verse “v’heishiv es hagezeila asher gazal – he shall return that which he stole.” The Ohr Sameach (Geneiva 1:17) notes that according to the Ketzos Hachoshen, there is no mitzvah on the second robber to return the stolen item per se, since in relation to the second robber, the item isn’t considered to be stolen.

The Nesivos Hamishpat (34:5) agrees with the conclusion of the Ketzos Hachoshen that the second robber didn’t violate a theft-related prohibition. However, he notes that should the second robber proceed to change that item, then that would be an act of theft.

This is based on the concept of shinui koneh – that by changing an item, one can acquire it. Performing a shinui to acquire a stolen item is considered an act of theft, as it further distances the item from its original owner. Therefore, although the actual taking of the item from the home of the first thief is not an act of theft, performing a shinui on it would be.

The Ohr Sameach (Hilchos Geneiva 1:17 and 3:2) disagrees with the Ketzos and Nesivos. He argues that even when stealing from the house of a thief, one does violate the prohibition of lo tigzol – there is merely an exemption from the keifel payment.

Of course, this entire discussion relates only to stealing a specific item that has been stolen already. If the item in question hadn’t been stolen, even if the intended victim is a known thief, stealing from him would remain a theft-related prohibition.

This week’s article is dedicated as a zechus for a refuah sheleima for R’ Moshe Shmuel Ben Sarah Bastzion, a dedicated and caring mechanech and camp director who has touched the lives of thousands, including this author.