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Theft and Robbery

THEFT AND ROBBERY (Heb. גְּנֵבָה וּגְזֵלָה). An object which is in the possession of a person without the consent of its owner or any other person having a right thereto, when that person knows – or should know – that the latter does not consent, is considered to be stolen or robbed by him, regardless of whether the person holding it intends to restore it to the possession of the person entitled to it after a time or not at all (Sh. Ar., ḤM 348:1). The thief differs from the robber in the fact that the former steals furtively, when unobserved, whereas the robber takes openly and forcefully (BK 79b). This distinction is of practical significance for criminal law only; in dealing with civil cases the law relating to a robber applies equally to a thief and vice versa.

Civil Aspects

To establish that the object is in his possession, it is necessary for the thief or robber to perform an act of *acquisition (kinyan), such as a "lifting up" or "pulling" thereof, in the same manner as a person who wishes to acquire ownership of ownerless property; without this the object does not enter his possession and no theft or robbery is committed (BK 79a and Tos. thereto). In terms of this definition, land is never robbed (Suk. 30b), as it remains in the possession of its owner and never of the robber because it cannot be carried away, and the owner, who can always restore it to his possession by judicial means (BM 7a and Tos. to BM 61a), retains control thereof. On the other hand, a bailee who, without the owner's consent, overtly converts an object to his own use or denies the ownership of the bailor is thereby stealing it (Yad, Gezelah 3:11 and 14). This rule applies in the case of any person, such as a borrower or hirer, who has acquired possession of property with the owner's consent and thereafter refuses to return it (Maggid Mishneh, Gezelah 1:3). Many of the scholars of the Talmud are of the opinion that anyone who borrows a thing without the owner's consent is a robber (BB 88a). Moreover, some of them hold that anyone into whose hands a thing comes with the consent of its owner who afterward changes or departs from the use intended for it by the owner is a robber (BM 78a), for his possession thereof is contrary to the owner's wishes. Similarly, a man who finds a lost article and takes it with the purpose of keeping it is a robber (BM 26b), but a bailee who fails to return a thing, falsely pleading that it was stolen from him, is a thief and not a robber (BK 108b).

Certain things are not subject to the law of robbery because people do not mind their being taken; therefore a man who takes them without permission becomes entitled to them, as in the case of a tailor appropriating part of the thread with which he sews a suit, or a carpenter appropriating the sawdust from timber (BK 119a), or a son supported by his father who gives a morsel of food to a friend (Tosef., BK 11:4). In some cases the rabbis, for the sake of peace and order, regulated for the extension of the laws of robbery to property not legally subject thereto, because the ownership is not effective in law – as in the case of property found by a deaf-mute, idiot, or minor – as well as animals, birds, and fishes caught in certain snares set for them (Git. 59b).

RESTITUTION

The thief or robber is obliged to restore the stolen property itself (in specie) to the owner. The obligation comes into being from the time that the robbery is committed and is not fulfilled until the stolen property is returned in such a manner as to enable the owner to know that it has been restored to his possession (BM 31a).

SHINNUI

If the thing robbed is damaged while in the robber's possession, he is obliged to compensate the owner for the loss in accordance with the law applicable to a tort-feasor (see Tashba in: Shitah Mekubbeẓet, BK 97a); if improved while in the possession of the robber, it must be returned with all improvements, for which the robber is entitled to be compensated. If the thing is lost or destroyed while in the possession of the robber (cf. Sanh. 72a), or is changed to such an extent that it can no longer be put to its former use and is not fit for the owner's purpose (Rashba and Ramah in: Shitah Mekubbeẓet, BK 96a), the robber must pay the value of the thing robbed at the time of the robbery. The Talmud records disputing opinions on the law of shinnui. As indicated, shinnui ("transmutation," "specificatio") is constituted when the stolen property has undergone a change, whether an improvement or deterioration, to the extent that it is no longer fit for its former use, such as wood converted into utensils, wool into clothes, stones which are cut (BK 93b), an animal which has grown old, a coin which has cracked and is not fit to be used, fruit which has rotted, and wine that has gone sour (BK 96b). An accepted criterion for testing whether the shinnui is such that the stolen property is rendered unfit for its former use is to examine whether it has undergone a change of name (BK 65b), for people customarily call something which has a specific use by a particular name, so that a change of name denotes a shinnui. Yet some scholars are of the opinion that shinnui is subject to no special law: the robber must restore the changed object itself; if it is damaged by the change, he must compensate for it; if improved, he is entitled to compensation. However, most scholars hold that the return of the changed stolen property does not serve to restore the owner to the position he held prior to the robbery, inasmuch as the thing is no longer fit to be used by the owner as before and is therefore as if lost to him; thus the robber has to compensate for the thing according to its value at the time of the robbery, thereby acquiring ownership of the changed article. A third opinion is that in law the robber must restore the changed thing itself, but the rabbis – in order to encourage contrition on the part of the robbers – regulated that stolen property, if improved, need not be returned and the robber must only pay compensation for it (BK 66a, 93b, 94a). Again, others are of the opinion that even when the possibility of restoring the thing to its prior use remains – and therefore by law the shinnui does not transfer title – still if the loss which the robber would sustain in restoring the thing to its former use exceeds the benefit which the owner would derive from it, then the rabbis regulated that the robber need not restore it. In such an event the robber need only compensate for its value. An example of such a case is where the robber would have to demolish a whole structure in order to return a stolen beam which he had built into it (BK 95a).

Any profits which the stolen property may yield while detained by the robber belong apparently to the robber and he is not required to account for them to the owner (see Rema, ḤM 354:1). Moreover, any loss suffered by the owner as a result of being deprived of the use of the stolen property while it was detained by the robber is an economic loss, for which the robber is not required to compensate him (ḤM 363:3 and Sma thereto). Similarly the robber does not pay for a sickness from which a beast recovers (ḤM 363:1).

YE'USH

Apart from shinnui the robber may also acquire ownership of the stolen property and be required merely to pay compensation for it in the event of the owner's *ye'ush ("despair"). Once the owner has lost all hope of the stolen property being restored to his possession, his ownership thereof is extinguished and title thereto is acquired by the robber, who is required only to pay its value at the time of the robbery. Opinions are divided in the Talmud on the question as to when exactly ye'ush is constituted and title conferred on the robber. Some scholars hold that ye'ush follows mere theft but not mere robbery: some hold the opposite view; and still others aver that ye'ush follows either (BK 114a–b). Another view is that despair alone does not suffice as it cannot be ascertained whether the owner has truly abandoned hope; to be recognized as real, ye'ush must therefore be accompanied by something more: either ye'ush with a change of possession, the stolen property having passed from the robber to a third person, or ye'ush accompanied by a change in the name by which the stolen article is called, i.e., when it has changed to such an extent, that people will incline to call it by another name even if it were possible to restore the article to its prior name. Mere ye'ush is nevertheless held by some scholars to suffice and to confer title to the stolen property on the robber (BK 66a–67a, 115a).

In strict law, when the thief delivers the stolen property into the possession of a third party prior to the owner's ye'ush, the latter may recover possession of his property from the third party without payment, for he has remained owner thereof. This law, if unamended, would have caused hardship to a bona fide purchaser on the open market, who could never be certain that he would not be deprived of his purchase by its true owner; as a result, since they had no means of taking precautions, people would never be in a position to buy anything with certainty. The rabbis accordingly enacted the takkanat ha-shuk ("open market rule") to protect both the purchaser in good faith and the owner. It provided that a man who purchases and pays for an article in the market without being in a position to know that it was stolen, while obliged to return it to the owner, is also entitled to demand a refund of the price from the latter. The owner accordingly recovers his property without causing the purchaser any loss (BK 115a).

In a case where the robber has transferred the stolen property into the possession of a third party and it is consumed by the latter prior to the owner's ye'ush, the Talmud records a dispute over whether the owner may demand compensation from one or the other at his option or from the robber only (BK 111b). Again, opinions are divided on the question of whether the heirs (of the robber) are considered as strangers, in the same position as a third party into whose possession the stolen property has come, or whether their possession is as that of the robber from whom they inherited (ibid.). In the post-talmudic period, the courts adopted the practice of restoring the stolen property itself to the owner even after ye'ush and a change of possession (Rema, ḤM 356:7).

BIBLIOGRAPHY:

Ch. Tchernowitz, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 25 (1911), 443–58; idem, Shi'urim be-Talmud, 1 (1913), 63–121; I.S. Zuri, Mishpat ha-Talmud, 6 (1921), 50–58; S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922), index; Gulak Yesodei, 2 (1922), 219–25; M. Jung, Jewish Law of Theft (1929); Herzog, Instit, 1 (1936), 101–5; ET, 5 (1953), 454–86, 517–29; 6 (1954), 199–225; EM, 2 (1954), 464f.; S. Loewenstamm, ibid., 536f.; B.Z.M. Ouziel, in: Berakhah li-Menaḥem Z. Eichenstein (1955), 64f.; N. Rakover, in: Sinai, 49 (1961), 17–28, 296–307; Elon, Mafte'aḥ, 23–25; B. Cohen, in: Jewish and Roman Law, 1 (1966), 159–78; 2 (1966), 472–537, 772–5, 786f.; S. Albeck, in: Bar-Ilan, 4–5 (1967), 117–31. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:59f., 65f., 97, 105, 119, 120, 132, 175, 194f., 202, 208, 258, 276f., 293, 331f., 338, 346, 405, 420, 433, 481, 484, 486f., 490f., 492f., 494, 498, 502, 505, 512, 518, 521, 525, 532, 534, 564, 566, 571, 618, 621f., 627f., 644, 694f., 701f., 724, 786; 2:950, 1002f., 1075, 1078; 3:1437f., 1469; idem., Jewish Law (1994), 1:65f., 73, 109, 118, 134, 135, 149, 194, 218f., 228, 234, 302, 325f., 348, 397f., 406, 416; 2:495, 513, 528, 586, 589, 591f., 596, 599f., 601, 607, 611, 615, 623, 631, 640, 648, 651, 685, 688, 703, 764, 768f., 776f., 797, 856f., 865f., 894, 965; 3:1151, 1212, 1296, 1300; 4:1710, 1747; idem, Jewish Law (Cases and Materials) (1999), 213, 244; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:48–53; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 34–36, 48–49; Enẓiklopedyah Talmudit, S.V. Gezel, 5:454–529; S.V. Hamsan, 16:52–57.