The [application of the laws of] double restitution is more frequent than the [application of the laws of] four and fivefold restitution, for double restitution applies to both animate beings and inanimate objects, but the four and fivefold restitution applies only to an ox or a sheep, as it is written, “When a person steals an ox or a sheep, and slaughters or sells it...” (Ex. 21:37). One who steals from a thief is not liable to pay double restitution, nor is a person who slaughters or sells [an animal] after another person steals it liable to pay four or fivefold restitution.
Commentary
The seventh chapter of Bava Kama deals with the laws of theft and restitution. This section opens by noting the difference between two penalties the Torah imposes on a thief. The first (Exodus 22:3) requires that a thief not only return what he has stolen, but that he make a twofold restitution. The second (Exodus 21:37) requires that a thief who slaughters or sells a stolen sheep or ox make four or fivefold restitution to the owner. As we have seen throughout Bava Kama, many of the Mishnah’s laws are based on the Torah or, more precisely, on the rabbis’ interpretation of the Torah. In some cases, rabbinic interpretation (midrash) affords the rabbis the opportunity to apply a law to many cases; in others, the rabbis may limit the number of cases impacted by a law. Here we see an example of each of these strategies.
How does this mishnah justify or ground its opening statement, “The [application of the laws of] double restitution is more frequent than the [application of the laws of] four and fivefold restitution, for double restitution applies to both animate beings and inanimate objects, but the four and fivefold restitution applies only to an ox or a sheep?” Both Exodus 21:37 and Exodus 22:3 discuss the theft of a sheep or an ox, so we might assume that any interpretation regarding the range of stolen objects to which the law could apply would be the same for both cases. Our mishnah, however, also takes into consideration a second verse that deals with theft: Exodus 22:8. This verse reads, “In all cases of misappropriation – pertaining to an ox, a sheep, a garment, or any other loss… he whom God declares guilty shall pay double to the other.” The inclusion of the words “in all cases” and “any other loss” allows the rabbis to contend that the laws of double payment apply to all cases of theft. Exodus 21:37, on the other hand, can be read narrowly, limiting its law to the theft of an ox or a sheep.
Finally our mishnah considers how the laws regarding restitution might impact a third party. If a person steals a stolen object from the original thief, and the object is then identified as stolen goods, the third party is not subject to the laws of theft. He cannot be required to pay double restitution to the original owner, because he did not steal it from that owner’s home. He is not required to repay the thief from whom he took the object, because it was never the thief’s to begin with – you cannot claim to have been robbed of that which does not legally belong to you!
Questions:
1. Consider the broad application of double payment versus the narrow application of four and fivefold payment? What might have motivated the rabbis’ interpretive choices? What might this suggest to us about the proportionality of punishment for monetary crimes?
2. How do we view a person who “steals from a thief?” What is our responsibility when we’re not sure where an object came from or whether it has been made or acquired legally and ethically?
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