A change to the stolen object effects its acquisition by a thief. He is still liable for his theft, but if he kills and sells an ox or sheep, he is not liable for the fourfold or fivefold payment because now he slaughters his own animal.
In the phrase "...and he shall return the stolen article that he stole..." the extra words "as he stole" teach that if the article is as it was when he stole, he returns the article, but if the thief transformed it, he is not required to return the stolen article itself, but rather its value.
Art: A Fair at Tula in Holy Week by Andrei Andreevich Popov
2 comments:
Again, the intent behind this is unclear to me (probably my fault, Mark, not yours). Suppose I've got a great tip on a horse, but no money. I steal ten bucks from you, bet it on the horse, and win a hundred. I'm caught, you take me to court, and I'm liable for the ten. In this case, even the fourfold or fivefold payment leaves me in the money, with no incentive not to steal next time.
I'm troubled by this because it exposes a pivotal difference between these Talmudic laws and something like a U.S. civil code. If a secular law has an unjust outcome, there's scope to correct it based on a sense of morality, or at least to SEE IT AS UNJUST. These laws, on the other hand, are like the regulations written to implement the commandments. There doesn't seem to be any scope here for a legitimate sense of morality that stands outside this code. If I'm reading it correctly, there's no additional moral opprobrium adhering to me after I've stolen your ten dollars to bet on the horses. I pay my debt (the penalty) keep the bulk of my winnings, and I'm square with Hashem - I don't have to even feel bad about it.
If that's the case, then the Rabbis should have been bending over backward to make sure that the penalty is an effective incentive to keep the mitzvoth. The seed thief should pay with the fruit.
Matt, today at least I am in your time zone.
I think you get the intent exactly right, but you are troubled by it. There are different theories of punishment in American law: correction of the situation (I should be back to where I was before wrongdoing), punishing the criminal, teaching the public, that is, deterrent, and more.
In the Talmud, you are right, it is to implement that commandments, and rarely do Rabbis implement additional measures. You are bothered by mildness of the punishment.
But the Torah is talking to the people who are listening to it in the first place. They don't want to hurt their friend, they love him as themselves, they don't want to upset Hashem either, and they are not satisfied transgressing, then repenting, and maybe bringing a sacrifice. In the words of Shakespeare, “though you repent, but I still have the loss.” So they just won't do it! And for the exceptions, there is enough punishment already, including remorse. Most important, these people know that the amount of money they are going to make is decided on the Rosh Hashana, so stealing won't help. Besides, their view of the world is not a zero-sum game. Hashem can always add to the potluck.
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