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Thought for the Day: Stealing in Halacha -- גניבה, גזילה, עושק; and Returning in Halacha

The Torah forbids stealing. One who does steal needs to return the stolen goods (if they exist, their value otherwise) and, of course, do תשובה. How much more could there be to say about it? Yet, in the Choshen Mishpat section of the Shulchan Aruch, you will find a full 29 chapters -- from 348 to 376, inclusive -- on the topic. Let's get clarity on some of the basics.

First, it is interesting to observe the organization of the Shulchan Aruch. The chapters immediately preceding 348 discuss withholding a worker's wages. Immediately after 376 begins a long section of dealing with damages. Stealing, in the system of halacha, stands between withholding wages (not quite stealing, but smells like it) and outright damage to another person's property.

At its root, stealing means to have taken control over someone else's financial resources against their will. There are three ways that can happen.

  • גניבה -- Take the money without the owner's knowledge. A cat burglar, if you will.
  • גזילה -- Take the money by force. Mugging, armed robbery, etc
  • עושק -- Someone gives the money willing, such as for a cleaning deposit on an apartment. When the owner comes to claim the deposit, the landlord unlawfully retains the money and refuses to return it.

There seems to be a category missing -- taking money under false pretenses. This came up recently, when I was discussing the following case with a chavrusa. The rebbi of a sixth grade class had offered a prize to any talmid who would learn a certain amount extra each week of the school year. Anyone completing the task would be able to claim a prize worth $100.00. Pretty sweet, no? One talmid really wanted the prize, but really didn't want to do the work. He convinced himself that he had done enough (not quite zero, but close enough) to earn the prize. And he claimed it. Decades later, this (now not so young) man had remorse and wanted to do תשובה. However, he really didn't want to go back to the school with the money and also have to embarrass himself by explaining why he was giving them the money. Could he just send a צדקה check and be done with it?

What's the problem? One category of stealing -- גניבה -- often requires telling the victim that he is getting his stolen money back. Why? Because once he realizes that his wallet is empty, then he won't be protecting it so much. Therefore if A sneaks money out of B's wallet, and B notices, then when A does תשובה and returns the money, he has to tell B so he can resume watching his wallet. If B hasn't noticed the money is gone before A has a chance to return it, then A doesn't have to say anything. As the expression goes: No harm (the money was not missed and the wallet was always guarded the same), no foul.

Question is: under what category does taking money under false pretenses fall? A didn't take it, B gave it to him; so sounds like עושק. On the other hand, B isn't claiming it back -- he doesn't even know the money is still rightfully his!

I asked R' Fuerst and learned three חידושים. First, taking money under false pretenses is called גניבה. It doesn't matter if the victim doesn't realize the loss because he hasn't checked or because he was duped into giving the money of his own free will; it's straight out גניבה. Second, not knowing the money was actually stolen is the same as not knowing the money is missing. Third, any (kosher) way that A can get the money back to B -- gift (unexpected, of course) to a person, charity to an organization -- it's all good. Once the money is back in B's pocket, then A is ready to repent and return to HaShem's good graces.

One more cute addition. Of course, if returning the money as charity, A can't also take the money out of his מעשר/tithe account-- it's returning stolen money, not giving charity, no matter what B thinks. Except... if A was a minor when the theft occurred. In that case A is only returning the money because it is the right thing to do and it is part of his תשובה process. That being the case, he can even take it from his מעשר/tithe account.

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