In this chapter we move on to a completely new topic. Until now we have dealt with property that causes damage - a person's property that causes damage - and now we move on to a person who causes damage himself, focusing on the laws that apply to theft.
Theft and Robbery:
The Torah divides the act of taking an object that does not belong to a person into two basic categories:
Theft - taking without the owner's knowledge, such as one who sneaks into a person's house at night and takes what is not his.
Robbery - taking by force and openly, in the manner of a robber.
What is a Penalty:
In the previous six chapters we saw only compensation payments: the damager pays for the damage he caused, and sometimes even less than that. With theft, the Torah adds an additional payment, which is a sort of punishment, and in the language of the Torah - a penalty. The Rambam explains that the distinguishing mark of a penalty is that it does not come as compensation, meaning he does not pay for the amount the victim actually lost.
Two Types of Payments for Theft:
Double payments - In every case of theft, there is an obligation to return the stolen object, and in addition to this, when it is discovered that the stolen object is in the thief's possession, he makes a double payment. If Reuven stole a book worth a hundred dollars from Shimon, he must return the book if it exists and add a hundred dollars; and if the book does not exist, he pays two hundred dollars - one hundred for the principal, the return of the value of the stolen object, and one hundred as a penalty.
Four and five-fold payments - An exceptional penalty applying to the theft of an ox or a sheep. "Ox" means cattle, and does not refer specifically to a certain gender, but rather to any animal of the cattle family: a bull, cow, or calf. "Sheep" means a sheep or a goat. If a person stole an ox and subsequently sold it or slaughtered it with a halachic slaughter, he pays five times its value; and if he stole a sheep and sold or slaughtered it, he pays four times its value.
For illustration: a thief who stole an ox worth a hundred dollars and subsequently sold it, will return a total of five hundred dollars. The first of the five is the returned principal, the second is the regular double payment, and to these are added another three for an ox, or another two for a sheep, completing the total of four.
The Source in the Verses:
The double payments are stated in the Book of Shemos, in Parashas Mishpatim: "If the theft is found in his hand" - if the stolen object is found in his possession, "whether it be an ox, a donkey, or a sheep, alive", "he shall pay double" - a double payment. An additional verse teaches that this is not limited to animals: "For any sinful word, for an ox, for a donkey, for a sheep" - animals, "for a garment" - clothing, "for any lost article" - anything that was lost, "he shall pay double to his neighbor".
However, the special payments of four and five are stated in a separate verse: "If a man steals an ox or a sheep, and slaughters it or sells it" - if a person stole an ox or a sheep, meaning a goat or a sheep, and subsequently slaughtered it or sold it, "he shall pay five oxen for the ox" - five in place of the one ox he took, "and four sheep for the sheep" - four of the flock in place of the one sheep he stole and sold or slaughtered.
The Text of the Mishnah:
"Merubeh midas tashlumei kefel mimidas tashlumei arba'ah vachamishah" - The scope of cases where the double payment applies is much broader than the scope of cases where the fourfold and fivefold payments apply.
"Shemidas tashlumei kefel noheges bein bedavar sheyesh bo ruach chayim uvein bedavar she'ein bo ruach chayim" - The double payment applies to everything, whether a living creature or an inanimate object.
"Umidas tashlumei arba'ah vachamishah einah noheges ela beshor vaseh bilvad" - These payments apply exclusively to oxen, goats, and sheep alone, and we cannot derive from them to apply to horses, and certainly not beyond that.
"Shene'emar: ki yignov ish shor o seh utvacho o mecharo vegomer" - The Mishnah abbreviates and leaves the completion of the verse to the learner: "he shall pay five oxen for an ox, and four sheep for a sheep" - fivefold for a cow, and fourfold for a goat or sheep.
One Who Steals from a Thief:
The second part of the Mishnah deals with a completely different matter. Let us set up a scenario with three people:
The original owner.
Thief A, who stole from the owner.
Thief B, who stole from Thief A.
Who pays the double payment here and to whom? Regarding this, the Mishnah says: "Ein hagonev achar haganev meshalem tashlumei kefel" - Thief B, who stole from Thief A, does not pay the double payment, but rather returns only the value of the stolen item to Thief A, and Thief A is the one who will return a double payment to the original owner.
"Velo hatove'ach velo hamocher achar haganev meshalem tashlumei arba'ah vachamishah" - Even if Thief B not only stole but also sold or slaughtered the cow, goat, or sheep, he will only pay the value of the animal he stole, and Thief A will only pay the double payment to the owner. In short: there is no scenario in which Thief A derives a large profit from the fact that the item he stole was stolen from him and subsequently slaughtered or sold.
One who slaughters or sells after stealing from a thief does not pay fourfold or fivefold to Thief A, because he is not the original owner. This law is also derived from the verse: "and it is stolen from the man's house... he shall pay double" - the derivation is that the double payment applies specifically to one who stole "from the man's house", from the original owner, and not to one who stole from someone who stole.
In summary: In this Mishnah, we moved from the laws of damages caused by one's property to the laws of damages caused by a person, and we learned the distinction between theft and robbery and the nature of a fine that does not come as compensation. We discussed the double payment that applies to everything, living or inanimate, as opposed to the fourfold and fivefold payments that apply only to an ox and a sheep and only when he slaughters or sells them, and their source in the verses of Parashas Mishpatim. Finally, we learned that one who steals from a thief does not pay double, nor fourfold or fivefold, as it is stated "and it is stolen from the man's house" - and not from the thief's house.