web analytics
October 21, 2014 / 27 Tishri, 5775
At a Glance
Judaism
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



Home » Judaism » Parsha »

Geneivah And Gezeilah

At the conclusion of this week’s parshah, the Torah discusses the halachos of one who stole from another. The pasuk says, “veheishiv es hagezeilah asher gazal – and he shall return the stolen object that he stole.” We derive from this that there is a mitzvas assei to return a stolen object.

Many Achronim explain that when one steals an item he would actually acquire the item, if not for the fact that the Torah commanded him to return it. It is for this reason that once the item is not returnable (e.g. it is damaged), it then belongs to the one who stole it – who then must reimburse the original owner. Since there is no obligation to return the object, it now belongs to the one who stole it.

The Torah sorts stealing into two categories, each one a separate lo sa’aseh: geneivah and gezeilah. The latter is when one uses force to steal, or steals in the open (without hiding). When one steals covertly, it is referred to as geneivah. There are several differences between the two. One example of how they differ is that only a ganav pays keifel (double), or four or five times the principle amount if he shechts or sells the stolen item. A gazlan does not incur these penalties. However, regarding repaying the principle amount that was stolen, they are similar. Further, the halacha of veheishiv es hagezeilah asher gazal applies to both geneivah and gezeilah.

Therefore a ganav does not acquire the stolen item, just like a gazlan, because they are both obligated to return the item that was stolen.

The Rambam begins discussing hilchos gezeilah with the following halacha: one who steals from another transgressed a lo sa’aseh – as it says, “lo sigzol.” However, lashes are not administered to one who transgresses this lo sa’aseh, for the Torah has commanded an assei to rectify it by returning the object that he stole. This is because it says veheishiv es hagezeilah asher gazal, which is a mitzvas assei. (This concept is known as a lav hanitak l’assei, a positive commandment that rectifies the negative commandment whereby lashes are not administered.) And even if he will destroy the stolen object (making it impossible to fulfill the positive commandment), he nevertheless does not receive lashes; instead he is obligated to pay for the object, the ruling being that any lo sa’aseh that requires one to pay precludes him from receiving lashes.

The Rambam writes at the beginning of hilchos geneivah that lashes are not administered to one who transgresses the lo sa’aseh of geneivah, similar to that of gezeilah. But he writes that this is for a different reason, namely that one who commits geneivah transgresses a lo sa’aseh – as it says, “lo signovo.” However, he does not receive lashes for transgressing this lo sa’aseh because the Torah commanded him to pay (and as mentioned above, any lav that requires one to pay precludes the person from receiving lashes). The Rambam does not say that one who transgresses geneivah does not receive lashes, because it is a lav hanitak l’assei.

Many Achronim ask why the Rambam did not write that the reason that a ganav is exempt from lashes is because it is a lav hanitak l’assei, as he did by gezeilah – as since we apply the halacha of veheishiv es hagezeilah asher gazal to a ganav, it should be a lav hanitak l’assei. And if we would suggest that the Rambam does not apply the halacha of veheishiv es hagezeilah asher gazal to geneivah, how would we then explain why a ganav does not acquire the item when he steals it.

Reb Moshe Shmuel Shapiro, zt”l, suggests that indeed the halacha of veheishiv es hagezeilah asher gazal applies to geneivah. However, we do not apply the actual mitzvah but only the monetary aspect, i.e. that he must return the stolen object. Therefore one cannot be exempt from lashes as a result of the rule of lav hanitak l’assei, since it is not a mitzvas assei (but only a monetary obligation) to return the item. At the same time, though, the ganav cannot acquire the item when he steals it since he does in fact have a monetary obligation to return the item.

The Imrei Baruch (Choshen Mishpat 34) says that although we indeed apply the halacha of veheishiv es hagezeilah asher gazal to a ganav, even to the extent that there is a mitzvah by a ganav to return the stolen item, it is only due to the Torah’s actual writing that it is a mitzvas assei that we can apply the rule of lav hanitak l’assei, exempting one from lashes. Thus, even though the mitzvah also applies to a ganav, the rule of lav hanitak l’assei is not the reason that he is exempt from lashes. And a ganav does not acquire the stolen item when he steals it since he actually does have a mitzvas assei to return the item.

About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Geneivah And Gezeilah”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Photo of the Latin inscription set against the Rockefeller Museum, seat of the Israel Antiquities Authority in Jerusalem.
Rare 2,000 Yr Old Monument to Emperor Hadrian Found in Jerusalem
Latest Judaism Stories
God-and the world

The creation of the world is described twice. Each description serves a unique purpose.

Questions-Answers-logo

Question: I recently loaned money to a friend who has been able to repay only part of it. This was an interest-free loan. We exchanged a signed IOU, not a proper shtar with witnesses, since I have always trusted her integrity and only wanted a document that confirms what was loaned and what was repaid. Now that shemittah is approaching, what should I do? Should I forgive the loan? And if my friend is not able to repay it, may I deduct the unpaid money from my ma’aser requirement?

Name Withheld

Lessons-in-Emunah-new

To the surprise of our protectzia-invested acquaintances, my family has thrived in our daled amos without that amenity, b’ezras Hashem.

Business-Halacha-logo

Shimon started adjusting the branches on the roof. In doing so, a branch fell off the other side of the car and hit the side-view mirror, cracking it.

I, the one who is housed inside this body, am completely and utterly spiritual.

Should we sit in the sukkah on a day that may be the eighth day when we are not commanded to sit in the sukkah at all?

For Appearance’s Sake
‘Shammai Did Not Follow Their Own Ruling’
(Yevamos 13b 14a)

If one hurts another human being, God is hurt; if one brings joy to another, God is more joyous.

I’m grateful to Hashem for everything; Just the same, I’d love a joyous Yom Tov without aggravation.

Bereshit: Life includes hard choices that challenge our decisions, leaving lingering complications.

Rabbi Fohrman:” Great evils are often wrought by those who are blithely unaware of the power they wield.”

The emphasis on choice, freedom and responsibility is a most distinctive features of Jewish thought.

The Torah emphasizes the joy of Sukkot, for after a season of labor, we celebrate our prosperity.

The encounter with the timeless stability of the divine occurs within the Sukkot.

Hashem created all human beings and it should sadden us when Hashem, their Father, does not see nachas from them.

More Articles from Rabbi Raphael Fuchs
Taste-of-Lomdus-logo

Others suggest that one cannot separate Shabbos from Yom Kippur by accepting Shabbos early.

Taste-of-Lomdus-logo

While women are exempt from actually learning Torah, they are obligated in a different aspect of the mitzvah.

The Chafetz Chaim answered that there are two forms of teshuvah; teshuvah m’ahava and teshuvah m’yirah.

Since it is a Rabbinic prohibition we may follow the more lenient opinion.

They ask, how can Rabbeinu Gershom forbid marrying more than one wife, when the Torah explicitly permits it in this parshah?

First, how could a beis din of 23 judges present a guilty verdict in a capital punishment case? After all, only a majority of the 23 judges ruled in favor of his verdict.

According to Rabbi Yishmael one was not permitted to eat such an animal prior to entering Eretz Yisrael, while according to Rabbi Akiva one was permitted to eat animals if he would perform nechirah.

Printed from: http://www.jewishpress.com/judaism/parsha/geneivah-and-gezeilah/2012/03/22/

Scan this QR code to visit this page online: