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.