Halacha Date: 18 Elul 5779 September 18 2019
In the previous Halacha, we discussed the enactment of our Sages which dictates that when a thief comes to return a stolen object, one must refuse to accept it so that thieves do not become disheartened from repenting. Nevertheless, there are several details associated with this law, as we shall now discuss.
The Words of Maran Ha’Shulchan Aruch
Maran Ha’Shulchan Aruch (Choshen Mishpat, Chapter 366) states: “If a notorious thief comes to repent on his own and the stolen object is no longer accessible, the owner may not accept reimbursement from him so that he will not hold back from repenting. However, if the thief wants to fulfill his Heavenly obligation and return it, we do not protest if the owner accepts it.” We will now explain the words of Maran.
A “Notorious Thief”
First of all, when Maran refers to a “notorious thief,” he means to say that the edict not to accept the stolen object only applies to a thief who is infamous in his robberies. However, if the thief is not one by profession, rather, he happened to have stolen once or twice, the owner may in fact accept repayment from him, for his Teshuva (repentance) process is not as difficult since he can easily come up with the money to reimburse the few people he stole from.
The source of this law lies in the words of the Tosafot who quote Rabbeinu Yitzchak Ba’al Ha’Tosafot as saying that the ruling of our Sages not to accept the stolen object only applies to a well-known thief because it is difficult for him to part with his assets so the Sages opened the pathways of repentance for him. However, the owner may accept reimbursement from one who has stolen only occasionally.
Repenting on His Own
Furthermore, when Maran refers to a thief “who comes to repent on his own,” he means that only when the thief comes to return what he stole from his own good will do we not accept it from him. However, if the thief shows no signs of repentance for his evil ways and the owner is able to extract reimbursement from him through Bet Din (Rabbinical Court) and the like, our Sages never enacted not to accept it from him, for the entire enactment was only for a thief who repents by his own initiative while this thief is not repentant at all. The Rosh (Rabbeinu Asher bar Yechiel, father of the Tur) writes this in his commentary and adds that we find in many places in the Talmud that Rabbinical judges forced defendants to reimburse the owner for stolen objects and this is per the letter of Torah law. Only in situations similar to the story above, where the thief offers repayment on his own accord, must the owner refuse to accept reimbursement.
When the Stolen Object is No Longer Accessible
When Maran writes, “If the stolen object is no longer accessible”, this means that the Sages only established not to accept repayment from the thief when the actual stolen object is no longer in his possession. For instance, if someone stole an electronic device and the like and the device is still in the thief’s possession, he must surely return it to its owner and the owner may accept it, for the enactment of our Sages does not apply here. However, if the device is no longer in his possession, for instance, because the thief sold it or lost it and now the thief would like to repay its value to the owner, the owner should not accept repayment. This detail is delineated explicitly in the above Gemara: “Rav Nachman says, they [the Sages] only established this when the stolen object is no longer in his possession.”
If the Thief Wishes to Repay the Stolen Object’s Value in any Event
Finally, when Maran writes that if the thief wishes to fulfill his Heavenly obligation and return its worth, the owner may accept it, this means that if the owner has already told the thief that he absolves him of his obligation to pay and he is no longer responsible for repayment and the thief insists that the owner accept reimbursement, the owner may accept it. This is similar to the law of a loan canceled by Shemita that in such a situation, a lender may accept repayment of a loan canceled by Shemita.
Summary: If a thief comes, of his own good will, to repay the value of an object he stole from a given individual and he is a person who was a thief by profession and the actual stolen object is no longer in his possession, the owner must not accept this thief’s reimbursement. If after being informed that the owner absolves him from reimbursing him the thief nonetheless insists that the owner accept reimbursement, the owner may, in fact, accept it.