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Class Notes - Class #11

The Torah requires us to be scrupulously honest in our dealings with other people’s property.  Mitzvot #224 – 229 play out that notion.  Early in our study we saw a mitzvah that a judge must decide cases of theft according to the appropriate rules. (See mitzvah #54.)  The injunction against stealing in the Ten Commandments is interpreted as a prohibition against kidnapping someone and selling that person into slavery.  (See mitzvah #36.)

In this series of mitzvot, we will see the rabbis legislating to make the principles of the relevant mitzvot work smoothly and fairly in the economy of their day.  Our author includes several explanations of how the details of some of these mitzvot are derived from the source verses.  The explanations he gives generally reflect careful and precise reading of those verses.

            Mitzvot #224 and #229 prohibit directly taking other people’s property.  Mitzvah #224 prohibits “g’neivah,” stealing by stealth.  The person who is stealing is a “ganav” in Hebrew, a “goniff” in Yiddish.  Mitzvah #229 prohibits “g’zeilah,” stealing openly by force.  The person who is stealing is a “gazlan.”  The author does not give a shoresh for these mitzvot; he considers the benefit self-evident.  But he does point out to a thief who steals from another person because the thief is strong enough to do so that “what goes around comes around.” At some future time, the thief might meet someone even stronger than he or she is, and then the thief will be at the mercy of that stronger person.

            The author quotes Rambam, who explains that these mitzvot prohibit stealing from anyone.  A Jew may not steal from Jews, non-Jews, even idol worshippers, adults or children.  If a Jew steals property from anyone, the thief is required to return the property.  A Jew is even forbidden to steal the property of someone the Jew would be permitted to kill.  The author has said many times that our characters are formed by our actions.  The moral character we will develop if we steal is not what the Torah wants to encourage.  Also, when we steal from someone and excuse our action by claiming the owner is an evil person, we deprive the owner’s heirs of the property, and the heirs may be worthy people.

            Both of these mitzvot prohibit stealing anything of value.  Motive  or rationalization are irrelevant; stealing something as a practical joke, or with the intent to pay the owner for the item plus a penalty, is still forbidden.  But the theft is not punishable unless the thief stole something worth at least a prutah, the smallest available coin.

            A thief can rectify having stolen by returning the stolen property, and the thief is required to return stolen property in any event.  As we have seen before, someone who breaks a negative mitzvah is not punished if the violator rectifies the harm done.  But if the thief fails to return the stolen property voluntarily, and is instead brought to court where witnesses attest to the theft the thief pays a penalty.  The thief pays twice the value for most property, leaving the thief poorer by the amount the thief tried to steal.  A ganav, who steals in stealth, pays four times the value if the thief stole an ox or five times the value if the thief stole a sheep.  Only courts in Israel impose these additional penalties.

            We saw in mitzvah #130 that the thief is required to return the stolen item if it is possible to do so.  If the stolen item is no longer available, the thief can rectify the theft by paying the value of the stolen item to the owner.  Sometimes it is possible for the thief to return the stolen item, but the thief will suffer excessive economic damage.  For example, let’s say a thief stole a wooden beam and then built the beam into the roof of a house.  The beam is there, and the thief could return it, but the thief would have to demolish the house.  To encourage the thief to do the right thing, the rabbis allow the thief to return the value of the beam rather than the beam itself.

            The author mentions cases where the thief returns the stolen object in an unusual way.  If, for example, the thief stole money and then tacked on the value of what the thief stole to the account of what the thief already owes the owner, the thief is considered to have returned the money once the thief pays off the account.

In the questions for further study, the author includes cases that raise the issue of whether the thief has returned the stolen item if the owner does not know if was returned.  For example, a thief steals something from a neighbor’s house and later returns it before the owner realizes it was missing.  Does the thief have to tell the neighbor he or she returned the property, or is it enough that the thief returned the item.  Or let’s say the thief stole some coins from someone’s wallet and then returns coins of the same value to the wallet.  Since people often check on how much money they have in a wallet, does the owner counting the money in the wallet suffice as notice to the owner that the money has been returned?

            The author also considers what happens if the thief sells the stolen property.  In general, we are forbidden to buy stolen property lest we encourage people to steal.  So if someone has reason to know an object is stolen and buys it anyway, the buyer should bear the loss if the original owner recovers the property.  If the buyer doesn’t know for sure that the object is stolen, but has reason to know it might be stolen, the buyer also bears the loss.  So, for example, someone who buys wool or milk or kids from a shepherd should suspect that the shepherd stole those items from the owner of the flock.  If the seller offers the item for sale but asks the buyer to keep the transaction a secret, the buyer should suspect the item is stolen.  If the seller has a reputation as a thief, the buyer should suspect the item is stolen.  The author says there are cases where a buyer who buys an object from women, children or servants should suspect the object is stolen.  These are cases where the sellers frequently have access to someone else’s property and where the sellers often have few resources of their own.  Social conditions determine whether the buyer should be responsible to suspect that he or she is buying stolen property.

            But the rabbis are careful not to extend these cases of suspicion too far lest they interfere with normal commerce.  In theory, when someone buys stolen property and the owner later claims it from the buyer, the buyer should have to return the property and try to collect the price the buyer paid for the property from the thief.  Under that rule, though, buyers could never feel secure about a purchase, since if the object turned out to be stolen the buyer would suffer the loss.  So the rabbis ruled that if the buyer had no reasonable way to know the item was stolen, the original owner can recover the item from the buyer but must compensate the buyer.  The original owner can then sue the thief to recover the money paid to the buyer, but the owner might not succeed in recovering the money from the thief.  If the owner cannot recover from the thief, the owner bears the loss.  But if the buyer had reason to suspect the item was stolen, the owner can recover the item from the buyer without compensating the buyer.  Since the buyer had notice of a problem, the buyer bears the loss.  The buyer can then try to recover from the thief, but the buyer might not be successful.

            The author also considers the case of someone who stole something and then died.  That leaves the orphaned heirs in possession of the stolen property.  We saw earlier in our study that commercial transactions involving orphans create a challenge.  The halachah has to balance taking special care of orphans against making so many commercial exceptions for orphans that no one will be willing to do business with them.  If the stolen property was anything other than land, the obligation to return the item actually accrued by the deceased thief, so the orphan heirs ought not to be liable for it.  But here the geonim changed the rule so that orphans get along economically with everyone else.  The orphan heirs are required to return the stolen item.   If the stolen property was land, the orphaned heirs are obligated to pay its value to the original owner. One aspect of lost or stolen property is that, if the original owner gives up on every recovering the item, it becomes hefker, ownerless.  But for this case, the author says that factor does not influence the outcome. 

 

So far we have dealt with mitzvot prohibiting out and out theft of someone else’s property.  Other mitzvot in this series prohibit of misappropriating property by other means.

            Sometimes a person has possession of someone else’s property legitimately.  If that person denies having the property or denies that the property belongs to the actual owner, that is a form of theft; the person has property he or she knows belongs to someone else and then lies the keep possession of that property.  Mitzvah #225 prohibits us from lying in that way.   If the possessor of the object denies having it and other witnesses testify that the object is in his house, the possessor is thereafter disqualified as a witness.  This mitzvah applies to men and women, at all times and in all places, but is not punishable because the liar has not done any physical action.

            If a person who possesses someone else’s property swears either that he or she does not have the property, or that the property does not belong to the original owner, the possessor violates mitzvah #226.  The person would also be violating mitzvah #225, since the person would be lying about possessing someone else’s property.  The person who swore falsely is punishable with malkos even though the person took no physical action, but only if there were witnesses and warning.

            Mitzvah #227 prohibits swearing falsely about any topic.  This mitzvah prohibits swearing an oath called a “shvu’at bitui,” an oath in which someone swears that he or she did or did not do a given act, or will or will not do a given act. 

In some cases, someone who seems to take a shvu’at bitui does not succeed in doing so because the oath is not considered valid. A shvu’at bitui only applies if the person swears to do something the person is able to do.   If the action the person swears to do or not to do would violate another mitzvah, the oath is invalid because the person’s Torah obligations make it impermissible for the person to behave properly and still fulfill the oath.  D’rabanan, if a person swore to hurt someone else, the oath is invalid.  But if a person swore an oath to hurt himself or herself, the oath is valid and the person is punishable for breaking it.  If someone swore to do something that would help someone else, the oath is valid and the person is punishable if he or she violates the oath.

            Our author discussed oaths at length in mitzvah #30.  That mitzvah prohibits taking a useless oath, whether or not the oath is true.  For example, the person might swear that something obvious is true.  The oath is not false, so it does not violate this mitzvah, but it is useless so it violates mitzvah #30.  Here, the prohibition is on making a false oath.  The author cites Rambam’s opinion that if someone takes an oath to violate a mitzvah, the oath is invalid and therefore not a shvu’at bitui, but the person did make a useless oath and is punishable for that.

            Another way of improperly holding someone else’s property is to fail to pay a debt.  Mitzvah #230 prohibits that in a specific case: if we have employed someone, we may not delay paying that person beyond the specified time for payment.  We will see a parallel positive mitzvah later in our study. (See mitzvah #588.)

In the shoresh section of this mitzvah/essay, the author continues the theme of empathy he developed when discussing farmers leaving produce for the poor.  The author asks us to imagine the pressures on someone who works as a day laborer, whose next meal may depend on getting paid promptly.  The worker is left yearning for food when pay is late.  God delights in people being well sustained; the employer here has an obligation to make that possible.  Note that the shoresh the author formulates here is focused on the needs of workers and poor people, rather than on the character development of the person fulfilling the mitzvah.

            The many details the author provides about this mitzvah reflect actual workplace conditions and economic realities.  The prime case for this mitzvah is a day laborer who sells his or her labor for one day or one night at a time. If the laborer requests payment at the end of the work period, the employer is required to pay up promptly.  (The employer’s obligation to pay promptly is contingent on the employee requesting payment.  If the employee does not request payment, the employer is still indebted to the employee but is not violating this mitzvah.)  The employer must pay the day worker by the end of the following night, and the night worker by the end of the following day.   The rabbis explain even that much delay because sometimes people choose to fast for that much time.  If the laborer works for part of a day or part of a night, and then requests payment, the employer must pay the worker by the end of that day or night.

 The rabbis derive this protocol from close reading of the source verses for this mitzvah, Lev. 19:13 and Deut. 24:15.  Even though there are two source verses, this is only one mitzvah, each verse adding a piece of information about how the mitzvah works

            The author discusses cases that do not fit this  “day labor” pattern.  If a worker is hired for a longer period of time, for example a week or a month, the employer must pay that worker during the day or night when the work period ends.  In another case, imagine a person who employs an artisan to do some work.  The artisan finishes the work and informs the client that the work is done.  As long as the artisan keeps the object involved, the client has not violated this mitzvah.  Presumably, the artisan could sell the item and recoup lost wages if the client fails to pay.  But once the artisan gives the object to the client, the client is obligated to pay up promptly.

            The author includes complications that can arise when an employer hires an agent.  Let’s say an employer uses an agent to hire workers on behalf of the employer.  Is the employer responsible to make sure the workers are paid on time, or is the agent responsible to make sure the workers are paid on time?  The author says it depends on what the workers were told when they agreed to the work.  These cases are not unique to this mitzvah; rather they reflect how the requirement to pay workers promptly plays out under the usual rules of agency.   Let’s say the employer hired an agent to do the job of paying the workers.  If the worker acquiesced to this situation, the agent is responsible to make sure the workers are paid on time.  If the worker did not agree to this arrangement the employer is responsible for paying the workers promptly.

            The essay in the Feldheim translation mentions that if the employer does not have the money to pay the worker, the employer does not violate this mitzvah.  That may or may not have been in the author’s original text.  It seems obvious that the reason the employer does not have the money to pay up is relevant.  It seems unlikely that the employer is behaving properly if the employer hired workers knowing there was no money to pay them.  If the employer does not have the money to pay the employees promptly, the employer must pay up as soon as the employer gets the money.

            The author says this mitzvah applies to paying other debts as well.  For example, someone who rents an animal or equipment must pay the rental fee on time.  Although this negative mitzvah only obligates an employer to pay a Jewish worker promptly, the corresponding positive mitzvah requires paying any employee promptly, whether the employee is Jewish or not.

            Once the worker has asked to be paid, the employer must pay promptly.  If the employer does not pay promptly, the employer violates this mitzvah and must pay up as soon as possible.  As long as the employer fails to pay, the employer violates this mitzvah.

 If the worker comes to court to try to collect late pay, the court allows the worker to take an oath and collect.  That is an unusual rule; typically the court allows someone to take an oath that serves to justify the oath taker not paying.  The author explains that the worker is much more likely to keep exact track of what the employer owes to the worker than the employer is.

            Although economic conditions have changed since the halachah the author describes was formulated, there are certainly situations now to which this mitzvah directly applies.  We do sometimes hire someone to work for several hours, days or more, and if we do we are obligated to pay that person on time.  We still rent items, and we are required to pay the rental fees on time. Also, several themes are applicable now.  The author asks us to imagine the plight of poor people who cannot pay for necessities and to make sure we pay what we owe those people so they can provide those necessities for themselves and their families.  The author asks us to remember that God wants to see the people He created taken care of and sustained, and that God wants us to try to facilitate that.  Of course, we are required to pay workers on time whether or not they are impoverished, as that inculcates values of honesty and fairness into our developing characters.  There are many ways the themes of this mitzvah can play out in our modern lives.

            Mitzvah #228 prohibits us from holding someone else’s property without the owner’s consent.  If someone is holding property that belongs to someone else, and the owner wants it back, this mitzvah prohibits the person holding the property from keeping it.  Simply, we are required to return other people’s property if we have the property illicitly.  We are required to pay our debts to others when the debts come due.  Even if a specific misappropriation of someone else’s property does not fall under one of the prior mitzvot in this series, this mitzvah will prohibit it. 

            The author gives several illustrations of violations of this mitzvah.  If someone holds someone else’s property and the owner comes to collect, the person holding the property violates this mitzvah by asking the owner to come collect the property and then not having it available.  Someone may not procrastinate about returning someone else’s property when the owner wants it back.  In modern parlance, this mitzvah forbids our saying “the check is in the mail” when there is no check in the mail.

Many situations  prohibited by other of these mitzvot are also prohibited by this mitzvah.  The author points out that robbery, theft and illicit possession of someone else’s property are conceptually the same thing.  Why, then, do we need so many mitzvot to prohibit one thing?  The author suggests that the character traits of financial honesty and respect for other people’s property rights are so important that God wanted to emphasize them by giving us lots of mitzvot that remind us to be careful about those things.  Conversely, when we are careful not to take other people’s property unjustly, we fulfill many mitzvot.  Of course, if we do take other people’s property unjustly, we violate many mitzvot.  The author insists that God is not trying to increase the violations we have committed.  Rather, God reminds us over and over in the hope we will behave properly.

 

Mitzvot #233 – 235 instruct judges to be scrupulously fair in judging civil cases and to treat the litigants equally.   These mitzvot apply to men, as “judgment is for them.”  We have seen this notion before in other mitzvot about court procedure.

            Mitzvah #233 prohibits the judge from veering away from Torah guidelines when making a substantive decision.  The author says the shoresh of this mitzvah is obvious: a settled human society depends on fair and peaceful dispute resolution. 

            Early in the essay the author talks about the difficult job a judge has.  The judge has to deal with people whose behavior is unsavory.  The judge needs patience and careful reflection to reach a correct result in any given case.  The laws that govern civil cases are extensive and complex, so judging civil cases requires great expertise. (Acquiring that expertise will be good for the judge, but it is still difficult.)  The judge has to take each case seriously, even if only a small amount is in dispute.  The judge runs the risk of awarding money to the wrong person, akin to theft, of allowing the litigants to take oaths that turn out to be false, and of being the victim of the hatred of the losing party.  Later in the essay, the author explains that in some situations, a judge in a civil case who gets the result wrong might have to pay out of pocket to correct the erroneous result.  But in mitzvah #235 the author chides those with the skills to be judges, honest men with the necessary learning, to step up and do the job.  Otherwise, less qualified people will step in and the outcome for society will be worse. 

To make the judge’s job a bit easier, the author suggests the judge consult with wiser advisors.  One judge sitting alone may decide a civil case, but the rabbis recommend a court of more than one judge.

The author also explains that a judge can take one of two roles.  The judge can reach a decision as between the two litigants.  In that role, the judge must scrupulously follow the rules as explained in the halachic literature.  Or, if the litigants consent, the judge can try to arrange a compromise that the litigants agree to.  This is probably what the author means at the beginning of the essay when he says that the judge must follow the rules as delineated in the Torah “unless the litigants consent.”   The author explains that this second role is preferable.

            Mitzvah #234 prohibits a judge from treating the two parties to a lawsuit differently.  Mitzvah #235 is a positive mitzvah that requires the judge to treat the litigants in a lawsuit equally.

            The particular example in the source verse, Lev. 19:15, tells the judge not to favor a great person during a trial.  If one of the litigants is someone people normally treat with respect, the judge might have a hard time relinquishing that behavior, but the judge must do so when the respected person is a litigant in a suit.  But the principle applies more generally:  the judge must set the same rules for both litigants, no matter who they are.  Either both stand, or both sit.  Each gets the same amount of time to present arguments.  There is one exception.  If one litigant is a Torah scholar, and the judge tells the litigants to sit, the other litigant may stand in respect to the scholar if the litigant chooses to.

            The author traces changes in court procedure.  Originally both litigants stood throughout the trial.  The judge could let the litigants sit during the proceedings, but had to require the litigants to stand when the verdict was delivered.  But after the time of the Talmud, both the litigants and the witnesses would sit during the entire proceeding.  The author does not explain why that change happened.

            The author gives another example of court procedure changing over time.  If one litigant is rich and dressed well, and the other litigant is poor and dressed shabbily, the judge instructs the rich litigant to provide comparable clothing for the poor litigant.  If one litigant looks much more respectable than the other, it will be hard for the judge to think of the litigants equally.  But the author says this is no longer in practice either.

            Although the judge must treat both parties exactly equally during the court proceedings, that is not entirely true in the administration of the court itself.  Rather, the judge must hear the cases of widows and orphans before other cases.  The Torah admonishes us to treat widows and orphans with special kindness, and this is one way to do that.  The judge should also hear cases in which a woman is a litigant before cases between two men.  Women, who might be less accustomed to the business world and to court proceedings, will be more uncomfortable waiting for their turn while other cases are being heard.  For a different reason, the court should hear cases in which a Torah scholar is a litigant before cases between ordinary people.  That reflects respect for the Torah scholar.  Of course, during the proceedings for each case the judge must treat each litigant equally.

The judge is required to view each litigant in the best possible light.  The author does not explain this principle.  It would seem to mean that the judge should consider the most favorable possible understanding of the case each litigant presents.  But that notion hits a limit.  If the judge is naive, the judge will end up believing stories that ought not be believed.  The author says that this aspect of these mitzvot applies not only to judges, but to all of us at all times.

At the end of mitzvah #233, the author explains some of the principles for determining what happens if a judge gets the wrong answer. This discussion applies to courts reaching judgment, not courts reaching compromise.  The analysis goes through several steps.

The first step is to determine if the deciding court is authorized.  The greatest local Torah authority can authorize a local court.  That reflects a sort of official hierarchy.  The author does not say how one determines who is the greatest local Torah authority.  Or a court can be authorized by the consent of the parties.  If the litigants agree to have specific judges decide their dispute, the deciding court is authorized.

Next is to determine whether the decision is wrong.  For an authorized court, a decision is only wrong if it contradicts “divrei Mishnah.” Rather than referring to the literary work the Mishnah, the author uses this phrase to mean clear undisputed rules in the Mishnah and Talmud.  In the legal community, this is called “black letter law.”  There is less of it than one might think; there is a great deal of dispute in halachic literature.  The author says some authorities extend divrei Mishnah to include uncontroversial rules articulated by the Geonim.   But there is an important exception.  A court can decide that the undisputed rule does not apply to the facts at hand, that the author of the rule would not apply it in this case.  In that situation, the court that fails to follow an uncontroversial rule is not considered wrong.

For an unauthorized court, the standard for the court being wrong is much lower.  The decision is considered wrong even if only the judge’s reasoning is wrong.  The unauthorized court has no legitimate authority, so its verdict is easily overturned.  Although the author gives us the rule for determining when a court decision is considered wrong, he does not say who makes that determination and how to convince the winning party to relinquish the decision in his or her favor. 

What happens when a decision is wrong depends on whether the court was an authorized or unauthorized court.  If an authorized court heard the case, the original winner is obligated to compensate the original loser, so that the final result is reversed from what was decided by the original court. 

If the mistaken court was an unauthorized court, and the judges were personally involved in enforcing the judgment, taking property from one party and giving it to the other party, then the judges are personally liable to compensate the original loser out of their own property.  The original winner need not relinquish the award he or she received, so only the judges lose financially.   If the court was unauthorized, its erroneous verdict is itself considered a tort, and the judge, as tortfeasor, must make the losing party whole.

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