On the bima of the beis medrash stood a maos chittim “pushka” (collection box) on behalf of “Matzos Chesed Organization.” The gabbai emptied the box every few days, typically finding $200-$500.
One morning the gabbai came to empty the collection box and found the lock broken and the money gone. He approached Mr. Taub, who was in charge of maintenance and related what happened.
“We recently installed surveillance cameras,” said Mr. Taub, “so I might be able to identify the thief.”
Mr. Taub viewed a playback of the night’s recording. Toward 3 a.m. a figure had entered the building. Mr. Taub slowed the playback and followed the man over to the pushka and watched him open it. He zoomed in and identified the thief as a neighborhood person who had declined morally and recently fallen on hard times.
Mr. Taub decided to confront the thief. “I have a surveillance camera recording of you stealing from the Matzos Chesed pushka,” he said to the thief. “Return $400 now or we’re going to prosecute.”
“It wasn’t that much,” said the thief. He pulled out $250 and gave it to Mr. Taub. “That’s all there was.”
“I don’t trust you,” said Mr. Taub menacingly. “I’m giving you two days to bring the remaining $150 or else…”
Mr. Taub returned to the gabbai. “I was able to recover the money!” he exclaimed happily and handed him the money.
“How much was there?” asked the gabbai.
“The thief gave me $250,” replied Mr. Taub. “I threatened that if he doesn’t give another $150 in the next two days we would prosecute.”
“But if he didn’t take $400, is it fair to make him pay that much?” asked the gabbai.
“How do I know how much he took?” answered Mr. Taub. “For all I know, he took even more!”
“Or, he could have taken less,” said the gabbai.
“Don’t you think we should penalize him anyway?” said Mr. Taub. “Let it be a donation to tzedakah!”
“I’m not sure this can be called a donation,” said the gabbai. “If you force him to give more than he took, it might be considered theft on your part.”
“I’m guilty of theft?!” replied Mr. Taub indignantly. “You should thank me for catching the thief and recovering the money!”
“I appreciate what you did and don’t mean to accuse you,” said the gabbai apologetically. “I’m just not sure that what you’re doing is correct.”
“If you want, I’ll discuss the issue with Rabbi Dayan,” said Mr. Taub. He called Rabbi Dayan and asked: “Can I demand that the thief pay me the amount I estimate?”
Rabbi Dayan answered: “If you cannot clearly state the amount the thief stole, it is not possible to obligate him in more than he admits.”
Rabbi Dayan then explained: “In most charges, if there isn’t clear evidence and the defendant denies the charge, he can swear he does not owe the amount in dispute and is exempt. However, when there is evidence that someone stole, but the witnesses do not know the amount of the theft, Chazal instituted that the victim can swear how much the thief stole and collect that amount from him. This is known as shevuas hanigzal [the oath of a robbery victim].” (C.M. 90:1)
“However,” continued Rabbi Dayan, “if the victim cannot definitively claim how much was stolen, he is not able to swear. Nor can we impose an oath upon the thief, since he is suspected of swearing falsely. Even if the thief admits to having stolen a certain amount, he has to pay only what he admits; it is not possible to obligate him in any greater amount because there is no definitive claim.” (90:5)
“What if a suspected thief refuses to admit or admits to an amount that seems unreasonably low?” asked Mr. Taub. “Is there anything that can be done?”
“Unfortunately, there is not much that can be done nowadays,” said Rabbi Dayan. “The only legal recourse of beis din is to impose a cherem, a curse, upon one who stole and does not admit. [90:5] In previous generations, when beis din had more power, if there was strong basis that a person stole but he denied it, the beis din could consider using certain coercive measures to ascertain the truth.” (See Pischei Choshen, Geneivah 1:13)
“What about reporting the incident to the police?” asked Mr. Taub, “Is there a problem if they might end up punishing the thief beyond what halacha requires?”
“When someone is breaking in it is permissible to call the police,” said Rabbi Dayan. “Even after the theft, if there is reasonable concern that the thief will repeat the crime of the thief being a repeat offender it is permitted to report the incident to ensure law and order.” (Pischei Choshen, Nezikin 2:49; 4:11)
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.