web analytics
November 1, 2014 / 8 Heshvan, 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.

For questions or comments, e-mail RabbiRFuchs@gmail.com.

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
Yehudah Glick on the Temple Mount.
Yehuda Glick’s Condition Stabilizing, “He Was Very Lucky” (1:00 PM)
Latest Judaism Stories
PTI-103114

People love their GPS; just type in the address and it tells you exactly how to get to where you want to go.

Grunfeld-Raphael-logo

In the same way as a married woman is precluded from marrying another man without a get, so too is this widow prohibited from marrying another man without chalitzah.

Daf-Yomi-logo

The Ban Of The Communities
‘Impaired Chalitzah’
(Yevamos 26b)

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

“My mother raised us to independence, all of us,” Rivka says, which certainly plays itself out in the fact that all three children have taken a different path.

“ ‘We’re almost out of stamps,’ I said. ‘I’ll be happy to run over to the post office and pick up a supply.’ ”

Bris Bein Habesarim affirmed that Hashem gave the land to Avraham’s children. It does not specify for how long. It did not guarantee the Jewish people eternal ownership of the land

According to the Raavad if one who is uncircumcised breaks something he will be exempt from paying for it since he was chayav kares at the same time as he was obligated to repay for the item he broke.

Why does Hebrew refer to mothers-in-law as “sunshine” when society often calls them the opposite?

Having herself been victimized by Pharoah, Sarah should have been more sensitive to Hagar.

Avram’s father was not impressed with the cleverness of his son. In fact, he was so unimpressed that he took him to Nimrod the king, who pronounced him an enemy of the state and attempted to execute him.

How do the stories in Lech Lecha help us understand the central tension of Abraham’s life, legacy?

Abraham did not govern society but instead was the representative of God’s kingdom on earth.

Hagar grossly miscalculated her own merits and demonstrated a serious lack of gratitude for Sarai.

Noach was the lonely man of faith living in a depraved world, full of wickedness.

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

According to the Raavad if one who is uncircumcised breaks something he will be exempt from paying for it since he was chayav kares at the same time as he was obligated to repay for the item he broke.

Taste-of-Lomdus-logo

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

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.

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

Scan this QR code to visit this page online: