Mishnah Bava Kama 9:9
Rabbi Michael Chernick

a) One who steals from his father and swears (falsely) to him (that he did not), and his father dies: behold, this party pays the capital and a fifth to his sons or to his brothers.

b) If he does not wish (to do so) or he does not have (sufficient possessions of his own to do so), let him take a loan and his creditors come and are paid (out of his inherited share of the stolen object).

Commentary

Biblical Background

1) The brevity of this mishnah makes it meaning rather elusive. One who steals from anyone and denies having done so under oath is required to pays back the capital plus a fifth more of the value of the object. This is spelled out in Leviticus 5:20-24:

“The LORD spoke to Moses, saying: 21 When a person sins and commits a trespass against the LORD by dealing deceitfully with his fellow in the matter of a deposit or a pledge, or through robbery, or by defrauding his fellow, 22 or by finding something lost and lying about it; if he swears falsely regarding any one of the various things that one may do and sin thereby -- 23 when one has thus sinned and, realizing his guilt, would restore that which he got through robbery or fraud, or the deposit that was entrusted to him, or the lost thing that he found, 24 or anything else about which he swore falsely, he shall repay the principal amount and add a fifth part to it. He shall pay it to its owner when he realizes his guilt”
(Lev 5:20-24 TNK)

2) There is also the pentateuchal rule that, if one can, one must return exactly the same object that one stole. This regulation appears in the passage above (v. 23), which if translated literally would read, “and he shall return the stolen article that he stole.” The phrase” that he stole” indicates to the Rabbis the requirement of returning the actual stolen item, if possible.

3) If we put all this information together we conclude that a thief must return the original item he stole (“the capital”) plus a fifth more of its worth if he denies the theft under oath and then repents. If he swore falsely to his father, he is required to pay to his father. If, however, his father dies two things occur: 1) he becomes an heir to the stolen item, 2) but he still must get the item out of his possession in order to achieve expiation. Since he can no longer return the item to its original owner, his deceased father, he is exempt from paying the extra fifth. 

The Mishnaic Rules

a) What rules does the follow under these circumstances? The mishnah says that he can turn over his monetary share of the item to his children or to his brothers since as an heir he can gift his portion to anyone he pleases. This will remove the stolen item from his possession as required by the Torah.

b) What happens if he does not want to forfeit his share of his inheritance or cannot do so because of his tight financial situation? The mishnah finds a “legal loophole” that allows him to formally remove the item from his possession without losing his share of the value of the item.

How does this work? He gives his brothers the item as their inheritance or he gifts it to his children. He then borrows money that is equivalent to the value of his share of the inheritance/theft. He then directs his creditors to receive their payment by collection of the debt from his share of the stolen item. He keeps the borrowed cash and the creditors keep the money generated by his share of the theft. The brothers or children obviously keep their rightfully inherited or gifted share in the item.

c) The major commentators on the Mishnah note that if there are no brothers or children, and the penitent thief wishes to fulfill his obligation without using the loophole afforded by “borrowing,” he can pay actual debts with the stolen object, put it in escrow for his wife’s marriage contract payment, or give it to charity.

According to them, no matter how he decides to divest himself of the stolen goods, he must announce publically that this is an act carried out to receive atonement for the act of stealing from his father. Failing to make this known means that the thief is not fully penitent because he will not confess his sin.

Some Food for Thought 

1) What does the mishnah’s “loophole” accomplish? Do you think it accomplishes worthy goals? If so, what are they? How comfortable are you with the idea of “legal loopholes” no matter what they accomplish? How would you restructure the mishnaic law to reach the goals the mishnah seem to want to reach? Can a society—Jewish or not—function without such loopholes?

2) Why do you think the commentators felt it necessary to add on the rules they did? What about the mishnah made them comment in this fashion? What does this tell us about the occasional tension between law, ethics, and spiritual purity?

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