Parshat Mishpatim: What is Stealing?

“If the stolen article is found in his possession whether a bull, a donkey, or a lamb [and it is] alive, he shall pay twofold.” (Shemot 22:3)

Everyone acknowledges that it is wrong to steal. However, what is stealing? Where should the line be drawn between borrowing and stealing? If a person takes something from someone else as a harmless prank, is this stealing?

Parshat Mishpatim outlines many of the laws regulating liability for causing harm to a person or his property. Our passage describes the punishment for theft. In general, a person who steals must pay back to the victim twofold the value of the stolen object. In other words, in addition to making restitution, the thief must make a further payment equal to the value of the stolen object.

In his Mishne Torah, Maimonides explains that the Torah prohibits stealing any amount. Even if the stolen object is of minimal value, the commandment prohibiting stealing has been violated. Maimonides adds that it is prohibited to steal something as a prank. It is also prohibited to steal with the intent of later returning the object or making restitution. Maimonides explains that these latter activities are prohibited in order to assure that such behaviors do not become accepted.[1]

Maimonides seems to distinguish between the prototypical instance of stealing and stealing as a joke, or with the intent to return the object. By commenting that these latter activities are prohibited in order that a person should not habituate these behaviors, Maimonides seems to imply that these activities are not the primary subject of the commandment against stealing. However, they are nonetheless prohibited because they can develop into negative behaviors. This is Lechem Mishne’s understanding of Maimonides’ position. He maintains that, according to Maimonides, the Torah does not prohibit a theft that is performed as a prank or with the intention of returning the object. These activities are prohibited by the Sages. In other words, the Sages extended the definition of theft to include these behaviors.[2] Sefer HaChinuch disagrees with this ruling. He argues that the Torah does in fact prohibit a theft performed in jest or with the intention of returning the object.[3] Sefer HaChinuch generally follows Maimonides’ position. Therefore, it is reasonable to assume that Sefer HaChinuch maintains that Maimonides would concur with this ruling. Maimonides’ comments in his Sefer HaMitzvot seem to support this interpretation of his position.[4]

Sefer HaChinuch’s interpretation of Maimonides’ position presents two problems: First, in his Mishne Torah, Maimonides clearly seems to distinguish between the prototypical case of theft and a theft performed as a prank or with the intention to return the object. Second, Maimonides does state that these latter activities are prohibited because they may develop into habitual behaviors. According to Sefer HaChinuch, this statement seems – at best – superfluous. The activities are prohibited because they meet the Torah definition of stealing! Even if they would not lead to any further evil, they are completely prohibited! In order to answer these questions, it will be helpful to consider the unusual ruling of the Sheetah Mekubetzet. Sheetah Mekubetzet argues that any theft performed with the intent of returning the object – unauthorized borrowing – is not included in the prohibition against theft. However, if a person does not intend to return the object, the commandment against stealing has been violated. The person’s motives for stealing are irrelevant. In other words, the Torah prohibits stealing as a prank or in order to annoy someone. In any instance in which the intention is to keep the object, the mitzvah is violated.[5] On the surface, this ruling is quite amazing. Stealing with the intention of returning is not even prohibited by the commandment against stealing! How is this possible? We might be tempted to explain this odd ruling by proposing that the thief does not really intend to steal the object. He is just borrowing without permission. But, Sheetah Mekubetzet goes on to explain that a thief’s intentions are irrelevant. One who steals as a prank or to create an annoyance does violate the commandment.

In order to understand Sheetah Mekubetzet’s position, it is essential to distinguish between two ideas: the innate objective of an action and its purpose. The objective of an action is defined by the end result for which it is performed – the fundamental product of the activity. The purpose of an action is the reason for which this product is desired. Let us consider a simple example: The object of sewing is to create stitches. The stitches are the product of the activity. One may have various reasons for desiring these stitches. One’s purpose may be to create embroidery. An alternative purpose may be to sew to pieces of cloth together. In both instances, the objective of the action is determined by its product. The objective is to create the stitches. However, the motive, or purpose, for creating these stitches differs.

It seems that according to Sheetah Mekubetzet, the mitzvah prohibiting stealing legislates against an activity whose objective is absolute seizure. Seizure is defined as an unqualified transfer of an object from the owner to the thief. But, if the thief intends to return the object to its rightful owner, the requirement of absolute seizure has not been meet. Without absolute seizure, the commandment is not violated. However, once the objective of the theft is absolute seizure, the purpose, or motive, of the seizure is irrelevant. The thief may have no real interest in the object he has stolen. His intent may be to carry out a prank or to annoy the victim. Nonetheless, once absolute seizure has taken place, the mitzvah prohibiting theft has been violated.

This provides an important insight into Maimonides’ position. As noted above, Maimonides seems to distinguish between the prototypical act of theft and theft performed as a prank or with the intention to return the object. How does a theft performed as a prank, or with the intention to return the object, differ from the prototypical case? Apparently, according to Maimonides, the prototypical case of theft has two fundamental qualities: First, the objective of the theft is absolute seizure of the object. Therefore, if the thief intends to return the object, the case is atypical. But, Maimonides adds a second quality: In the prototypical model the purpose of the theft must also be the absolute seizure of the object. Therefore, a theft performed as a jest is atypical. The thief may intend to keep the object. The purpose of this theft is not seizure. In other words, the prototypical case of theft exists when the objective of the activity is absolute seizure and this seizure is also the purpose for which the act is performed.

We can now easily understand and appreciate Lechem Mishne’s interpretation of Maimonides. According to Lechem Mishne, the Torah’s definition of theft extends only to the prototypical case. The Torah commandment is violated only when the objective of the theft is absolute seizure and this seizure is also the purpose of the activity. The Sages extended the Torah’s prohibition to the atypical cases in which either this objective or purpose is missing.

However, Sefer HaChinuch’s interpretation of Maimonides’ position remains difficult to understand. Sefer HaChinuch must acknowledge that Maimonides identifies two levels of theft. He clearly states that theft performed with the intent to return the object, or in jest, is prohibited in order to discourage habituation of such behaviors. Yet, Maimonides indicates that even in these atypical cases the theft is prohibited on a Torah level.

It seems that Maimonides maintains that there are two elements included in the mitzvah prohibiting stealing: First, the mitzvah prohibits a specific action. The specific action prohibited by the mitzvah is the prototypical model of theft. In this model, the objective and purpose of the action is the absolute seizure of the object. A theft performed in jest, or with the intent or returning the object, does not meet the requirements of this model. However, there is a second element of the mitzvah: The mitzvah has an objective. Its objective is to establish clear perimeters of ownership. Any theft – even if it is not the prototypical case – demonstrates disregard of the perimeters of ownership. Therefore, although the activity is not the action explicitly prohibited by the action, it is included in the prohibition of commandment. It contradicts the objective of the commandment.

An illustration will help clarify this formulation. We are all familiar with illegal file sharing. If a person purchases a music CD, copies it, and resells the copies, he has clearly violated the copyright on the CD. This is the specific action that the copyright law prohibits. But, assume that the person does not resell the copies. Instead, he lends his CD to various individuals and invites them to copy the music onto their hard-drives. This may not be the activity specifically prohibited by the copyright law, but there is no question that this activity undermines the objective of the law. The law is designed to protect the investment of the CD producer. Widespread distribution of the music files on the single purchased CD undermines the objective of the law. Now, in this case, we might debate whether the CD purchaser should be responsible to respect the objective of the copyright law. But, we cannot deny that the purchaser’s activities contradict this objective.

Sefer HaChinuch is suggesting that in the case of the mitzvah prohibiting theft, the objective of the mitzvah is definitely legally binding. Therefore, in addition to the specific act of theft prohibited by the mitzvah, atypical forms of theft that undermine or contradict the rights of the owner are also prohibited.

Let us close with a short review of the laws. According to most opinions, it is prohibited to take or steal an object with the intent to return it. There is some debate as to whether this behavior is prohibited by the Torah or by the Sages. But, the bottom line is that ownership rights must be respected. Taking an object without the authorization of the owner directly undermines and contradicts the rights of the owner. Therefore, the fact that the thief does not intend to keep the object is irrelevant.

Stealing in jest, or in order to annoy someone, is clearly prohibited. Again, there is some debate as to whether this activity is prohibited by the Torah or the Sages. But, this activity is an obvious denial of the owner’s rights and is therefore prohibited.

 

[1] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Genayvah 2:2.

[2] Rav Avraham di Boton, Lechem Mishne, Hilchot Genayvah 2:1.

[3] Rav Aharon HaLeyve, Sefer HaChinuch, Mitzvah 224.

[4] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Sefer HaMitzvot, Mitzvat Lo Ta’aseh 244.

[5] Rav Betzalel Ashkenazi, Sheetah Mekubetzet, Commentary on Mesechet Baba Metzia 61b.