From Parsha to Halakha: Vayikra “Takanat HaShavim” Repentant Thieves
Court-ordered financial payments are generally divided into two categories: tashlumei mamon, monetary remuneration and tashlumei kenas, payment of fines. When a person causes damage they often have to pay for it, to reimburse others for the damage they caused. Occasionally, the Torah also adds a punitive fine. A ganav, thief, is obligated to pay double, and if they slaughtered or sold an animal they stole they’re liable for four to five times the value of the stolen animal.[1] Similarly, there are several types of damages that someone who causes physical harm to another person may be liable to pay, and there’s some discussion as to which of these are remuneration and which are fines.[2]
Laws of gezeila – robbery
As opposed to a ganav, a gazlan does not have to pay a fine. A ganav, a thief who steals surreptitiously, is obligated to pay at least double the value of the ill-gotten goods, but a gazlan, a robber or bandit who steals openly only returns the original value of the goods. In this week’s parsha the Torah teaches that there is a special offering a repentant gazlan brings: “If he sins and is guilty he returns the stolen item (gezeila) he stole (gazal).”[3] The robber is only obligated to return the stolen item. If the robber swore that they did not steal the item then they must also atone for taking God’s name in vain (me’ila – using something consecrated for another purpose) they pay an additional fifth of the item’s value and also bring an offering called asham m’eilot.[4]
Not only is there no punitive fine for a gezel, rabbinic literature seems to go to great lengths to make it easier on them. The mishna in Gittin contains a series of takanot (rabbinic enactments) that were established “mipnei tikun olam” (for the betterment of society, lit. to repair the world). Included are two takanot concerning gezel: “Rabbi Yochanan ben Godgoda testified… that one takes the value of a stolen beam built into in a large structure, for the betterment of the repentant (takanat hashavim), and that stolen sin-offerings atone if the [theft] was not publicly known, for the proper functioning of the altar (tikkun hamizbeach).”[5]
These enactments seem to mitigate the gazlan’s crime. The gazlan’s stolen offering should be invalidated, but it is not.[6] The gazlan should have to take apart the structure to return the stolen beam, but they’re allowed to return the cash value in its place. The latter is also referred to as “takanat hashavim,” “an enactment/for the betterment of repenters,” as it is lenient within the letter of the law to make it easier for a gazlan to repent.
Takanat hashavim
There are several other laws concerning gezel that go to great lengths to make it easier for a gazlan to make amends; the fairness of some of these laws is questionable. The mishna says that there’s an obligation to return “the gezel they stole,” which is interpreted as the value of the gezel at the time it was stolen, without any appreciation since the time of the theft (for example if a cow gave birth or a field yielded crops), or repayment for lost income (such as a bull stolen over plowing season), or even if the stolen items have lost value (like chametz owned by a Jew over Passover).[7]
It’s possible that part of the discussion concerning the precise definition of “the gezel they stole,” based on the lack of a biblically imposed fine on the gazlan, is related to the principle behind takanat hashavim.[8]
There are several explanations for the relatively light repercussions for a gazlan, as opposed to a ganav. Some suggest that the ganav’s double, quadruple, or quintuple payments are actually remuneration for the income lost while the animal was stolen.[9] Others propose a connection between the extent of the item’s absence and the difficulty assessing its original value; so a ganav pays double or more depending on if they sold or slaughtered the stolen animal.[10]
Some note that a ganav who then hides, slaughters, or sells an item or animal racks up further transgressions.[11] Others suggest that the punishment is higher in situations where the thief is less likely to be caught. For example, Rambam teaches that the increase in the fine is commensurate with the ganav’s alacrity in disposing of the stolen goods to avoid getting caught.[12]
This may explain another halakha: “Someone who confesses [to a sin that carries] a fine is exempt [from paying the fine].”[13] If someone confesses that they caused damage they are only obligated to pay the principal, not the fine. The sages derived this law from the verse, “The one the judge finds guilty pays double to their fellow.”[14] Only the judge can impose a fine beyond the principal value of the damages incurred, a person who admits to the damage can’t make themselves liable for a fine, only the principal. It’s also possible that this law is meant to encourage the responsible party to confess to minimize the amount they are obligated to pay in restitution.[15]
Why differentiate between a ganav and gazlan?
This brings us to another Talmudic explanation as to why the Torah absolves a gazlan from the additional fines a ganav owes:
“Rabbi Yochananben Zakai’s students asked him: Why was the Torah stricter with the ganav than the gazlan? He replied: This [ganav] equated the honor of the servant to the honor of his owner, and this [gazlan] did not equate the honor of the servant with the honor of his owner…”
Rabbi Yochanan ben Zakai explains that a ganav who hides their actions from people is more afraid of people than of God, imagining that the Sovereign of the Universe does not see or hear everything. The gazlan does not hide their actions from anyone. They fear neither God nor man, but at least they don’t denigrate God’s honor by valuing people’s judgment over that of God.
As opposed to a ganav, a gazlan’s identity is known; this is a person who doesn’t care about society or law. Consequently, punishments probably won’t serve as a deterrent, even if it was possible to enforce them. The Torah, therefore, seems to suffice with the return of the stolen goods, and atonement for any false oaths they may have sworn. Since there’s no fine, there’s no way to incentivize a confession by waving it. Instead, the Torah – and sages following the Torah’s example – are lenient by making it easier for the gazlan to repent and give restitution. This led to an extreme enactment in the time of Rabbi Yehuda haNassi that prohibited the original owners from accepting stolen goods returned by the gazlan.[16] This too seems to be meant to encourage repentance and stop the gazlan from continuing their criminal ways.
Society does not always have the means to deal with its most violent members. Meeting them partway may express a fervent hope that they may choose to repair their ways on their own, to the best of their abilities. It seems that ganavim get the stick, while the gazlan gets the carrot.
[1] Shemot 21:37 and 22:3, 6-8
[2] Shemot 21:18-25; Devarim 25:11-12; Tb Bava Kama 83a-84b.
[3] Vayikra 5:23
[4] Vayikra 5:24-26
[5] Mishna Gittin 5:5
[6] So that the Kohanim are not worried about possibly eating stolen and therefore invalid offerings.
[7] Mishna Bava Kama 9:1-2.
[8] For example: Bava Kama 93b and on.
[9] See Rabbi Meir Bava Kama 79a and compare to Torah Temima on Parshat Mishpatim.
[10] Abarbanel Shemot 21.
[11] See Bava Kama 67b – 68a, and Akeidat Yitzchak 64.
[12] Moreh Nevuchim 3:41.
[13] Bava Kama 14b, 64b, 74b – 75b.
[14] Shemot 22:8.
[15] It seems that the majority opinion is that even in a case when the Torah imposed a fine, without monetary obligation, the confession itself is sufficient, even if the thief does not have to pay anything. But the gemara in Bava Kama 74b – 75b notes an opinion that someone who confesses to a crime that normally incurs a fine is only exempt from paying it if they are obligated to pay some other form of monetary compensation.
[16] TB Bava Kama 94b.
