Earlier in Chapter Nine of Tractate Bava Kamma, we learned the rules governing the repayment of stolen items. As we saw, the Torah instructs that a thief must return the item itself to its original owner, plus an additional one-fifth. But the Sages reinterpreted this law so that the thief can pay the monetary equivalent of what he stole, instead of the actual item. Indeed, the Talmud instructed that monetary compensation is actually preferable, since often thieves are unable to return the things they stole, and insisting on it might deter a thief from repenting for his crime.
This week’s reading returned to the question of the barriers to repentance. This time, the problem had to do with how much effort should be required of a thief to locate the person from whom he had stolen. According to the mishna in Bava Kamma 103a, the burden on the thief is virtually unlimited: a robber must bring the money to his victim “after him to Medea.” Medea or Media was a region of northwestern Iran, thus quite distant from the Babylonian heartland where the Bavli was composed. The implication is that even a very long journey should not be a deterrent to repentance.
But in the Gemara, we find that the rabbis modified this law in the direction of greater leniency, or perhaps greater realism. The Sages “instituted a great ordinance stating that if the expense required to return a stolen item to the victim is greater than the principal,” then the thief does not have to track down the victim. Instead, he can make restitution to a court. The Talmud does not go on to say what the court does with the money—does it have an obligation to send it on to the victim, or does it use the money for communal purposes?
But the justification for this provision is not just practical; it has to do, once again, with repentance. A thief who would have to spend months tracking down a man from whom he had stolen a small item is not likely to make the effort. Rather than put such an obstacle in his path, the Sages ease the process. Remarkably, and unlike most secular systems of law, the Talmud is concerned not just with punishment and restitution, but with the spiritual redemption of the guilty party. Indeed, the notes to the Koren Talmud say that this ordinance was singled out as “great” because it was such a marked contradiction of the biblical law. This is a measure of how far the rabbis were willing to go to smooth a sinner’s path to repentance.
The Gemara explores other dilemmas having to do with restitution. What happens if a thief steals an item without knowing whom it belongs to, and several people claim to be the owner? Is he obligated to compensate each of them, or is his duty simply to relinquish the stolen item and leave the claimants to fight it out? This is a matter of disagreement between Rabbi Tarfon and Rabbi Akiva. Imagining a situation in which five claimants are arguing over the stolen item, Tarfon says that the robber “places the stolen item between them and withdraws”; but Akiva says “this is not the way to spare him from transgression.”
To Akiva, the thief’s repentance is not completed just by giving up his ill-gotten gains; he must also make sure that the original owner is made whole. This means that “he pays the value of the stolen item to each and every one of the five.” Here it seems clear that Akiva is placing an obstacle in the path of repentance: What thief would agree to pay out five times the value of what he stole? Accordingly, the rabbis “instituted an ordinance” that it was sufficient to follow Tarfon’s rule and place the stolen item “between” the five claimants. This is in the same spirit as the “great ordinance,” making the sinner’s repentance a higher priority than the compensation of the victim.
At the same time, the law places great emphasis on the need for the robber to seek out his victim to make personal atonement. Under ordinary circumstances, where it does not present an undue burden, a thief must pay back his victim directly. Unusually, the mishna specifies that he may not repay the victim’s son or his agent, only the victim in person. A face-to-face encounter seems to be necessary to acknowledge the full humanity of the victim, and thus the full gravity of the crime.
Still, the rule against using an agent to collect compensation creates other legal problems. If a victim wants to appoint an agent to receive his own stolen property back again, why shouldn’t this agency be recognized? This is what bothers Rabbi Elazar and Rabbi Yochanan, who insist that “an agent who was appointed in the presence of witnesses is a legally recognized agent,” regardless of what the mishna says in this case. Here the right of the victim to appoint an agent seems to come into conflict with the duty of the thief to make personal restitution.
In practical terms, the Gemara explains, the prohibition of agency does not mean that a thief can’t send back a stolen item via a third party. But this third party cannot be considered a legal agent; rather, he is merely “a trustworthy person.” The difference has to do with the assumption of risk if something goes wrong in the process. Ordinarily, an agent serves as a legal replacement for the principal; in that case, as soon as a thief paid compensation to the agent, his obligation to his victim would be discharged. By ruling this out, the mishna effectively says that the thief remains liable until the stolen property has actually reached the hands of the victim. If he pays the agent, and the agent loses the money, the debt has not been discharged and the thief is still obligated to pay his victim back. Thus the Gemara tells the thief about the “trustworthy person,” “If you are willing to rely on him, then rely on him”: The thief is assuming the risk if he turns out to be unreliable.
Later in this week’s reading, in Bava Kamma 109a, the Talmud tests the principles of restitution by inventing some difficult and far-fetched hypotheticals. Say an only child steals money from his father, and then the father dies. Ordinarily, a thief whose victim dies must pay back the estate; but in this case, the thief and the heir are the same person. Can a thief forgive a debt to himself? Rabbi Yosei haGelili says that he can; but this seems unfair on its face, because it means he can continue to enjoy his ill-gotten gains. But in this case, whom else could he repay? Rav Yosef says that he may give the money to charity; other sages say that he must find some other relatives to compensate, such as his father’s brothers.
And if you should imagine a case in which the dead man has no other relatives, the Gemara flatly says that this is impossible: “But is there any Jewish person who has no kinsman”? This question, asked in the technical context of a dispute over inheritance and restitution, implies something profound about the nature of Jewishness. All Jews, the rabbis imply, are related, since we are all descendants of Abraham, Isaac, and Jacob. It follows that no Jew can ever be truly isolated, because he has a familial claim on every other Jew. This is an ideal that has always been honored mainly in the breach—whether we’re talking about biblical times or the present—but it is always a reminder worth hearing.
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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.