Suffer The Thief
‘One Stole And Another Stole It From Him …’
(Bava Kamma 68a)
The baraitha on our daf relates that one who steals an object that another had stolen previously is only obligated to pay keren – the principal, but he is not required to pay kefel – the double penalty. (See Mishna 62b, which states similarly, “One who steals from a thief [a stolen object] is not subject to kefel payment.”)
Rashi (s.v. “vesheni eino meshalem ela keren”) cites the Gemara (infra 69b) where this halacha is derived from the verse (Shemos 22:6), “… ve’gunav me’beis ha’ish … and it was stolen from the man’s house…” Thus this excludes the case where the object was stolen from the house of the one who originally stole it.
Defining A Thief
The Ketzos HaChoshen (34:s.k.3) explains that the act of robbery involves removing an object from its owner’s domain. Thus, one who steals a previously stolen object is not considered as if he committed an act of theft. Therefore, Ketzos HaChoshen maintains that not only does he not pay kefel – double – but he is not classified as a thief [for this act] and as such maintains his trustworthiness to deliver credible testimony in a beth din.
Further, if the object was accidentally damaged while in his possession he is not even responsible to replace it.
Ohr Same’ach (Hilchos Geneiva 3:2) disagrees and maintains that our above-cited verse, “… and it was stolen from the man’s house…,” teaches that one who steals a stolen object from a thief is excluded from certain aspects of the laws of geneiva, namely, to pay kefel double. However, as regards a situation where it was lost or damaged he is indeed in the category of a thief and must replace the lost or damaged object.
To Whom
While, at first glance, it would seem that our baraitha, which requires the second thief to pay the principal, is in agreement with the position of the Ohr Same’ach, Rashi (s.v. “ve’lo teima”) interprets the baraitha differently: In the event the original owner was meya’esh – he despaired of recovering his stolen object – then the second thief is to pay the principal to the first thief.
The Victim
Rabbi Elchanan Wasserman (Kovetz Shiurim os 17) explains that since the first thief is obligated to replace the object that he stole to its original owner, the second thief caused the first thief a loss.
Though the first thief is the only one who is required to repay the owner the value of the stolen object, he nevertheless has recourse to demand reimbursement from the second thief.
