Bava Kamma, Chapter 7, Mishnah 6. The main point in this Mishnah is that for a person to be liable for theft, he must perform a formal act of acquisition - an action capable of transferring ownership from the previous owner to him, exactly as we learn in Tractate Kiddushin regarding a standard commercial transaction. Handing over money, a mere statement ("I agree to give this to you," "This is yours"), or a handshake - none of these are sufficient to transfer ownership. A formal act of acquisition is required.
Two acts of acquisition for an animal:
Meshichah - pulling the animal and moving it from its place.
Hagbahah - lifting the animal from the ground.
Hagbahah is effective in all cases. If the seller said, "Here is my sheep for you," and the buyer agreed and lifted it from the ground - the transfer of ownership from the seller to the buyer has taken effect. The same applies to a thief: from the moment he lifts the sheep from the ground, the sheep becomes his, meaning that he has actually committed the theft.
Meshichah, on the other hand, is not effective as long as the animal is located on the owner's property. It only becomes an effective act of acquisition when the animal is pulled into a neutral area that is not exclusively owned by the current owner - the seller, or the victim in the case of theft.
Two consequences of the thief's act of acquisition:
The obligation to return the item, and in addition to it, the penalty of paying double.
Responsibility for safeguarding: One who steals his fellow's item and brings it into his own domain is no less obligated to safeguard it and bear the consequences of damage - whether damage caused to the animal or by it - than a borrower. A thief is essentially an unauthorized borrower.
These two consequences only take effect from the moment the thief performs an act of acquisition, which transfers ownership and officially makes him a thief, as opposed to someone who is in the middle of the process of stealing.
The first part of the Mishnah:
"Hamoshech veyotzei umeis birshus habe'alim - patur" - The thief pulls the sheep and leads it out of the owner's property, but before it leaves the property, the animal dies on its own (for example, from a heart attack, and not that the thief killed it). In this case, the thief is exempt from any liability, since he has not done anything: he had not yet stolen the animal before it died, and therefore he had not assumed responsibility for it, as he had not performed an act of theft that would make him a person who took the animal without permission.
Obviously, if the thief had caused the animal's death, this would not be an act of theft but an act of damage - damaging his fellow's animal, as we saw earlier. This is not the case in our Mishnah, where the animal dies on its own.
"Hagbiho o shehotzio mirshus habe'alim umeis - chayav" - If the thief lifted the animal from the ground, this is a valid act of acquisition; similarly, if he pulled it and actually removed it from the owner's property. From this moment on, the thief has committed an act of theft and becomes responsible, and therefore, when the animal dies, he is obligated to pay. This is similar to a borrower: someone who asks to borrow a cow for a day's work, and in the meantime the cow dies, cannot suffice with expressing sorrow but is obligated to pay the value of the animal. So too, the thief is responsible for its death at that stage.
"Chayav" - Its meaning here is the obligation of the double payment: one payment is for the return of the dead animal, meaning its value, and this is the principal; and in addition to the restitution - a penalty payment equal to the value of the animal at the time of the theft, which he must pay a second time. This is the double payment.
The Second Part: The Sophisticated Thief and the Unintentional Thief:
The second part of the Mishnah takes this idea a step further: What is the law when the thief is a sophisticated swindler, well-versed in the laws we have learned, and therefore does not perform any action himself that would be considered an act of theft, but rather leaves its execution to another person or tricks him into doing it?
An example of this: The swindler owes his friend a hundred shekels, and this is the value of a small sheep. He says to the creditor: "Come to my courtyard and take one of my sheep for yourself," and tricks him into thinking the sheep are his. The creditor takes a sheep, thinking he is receiving payment for his debt, while in fact he is stealing the sheep of a third party - the victim.
Who, then, is the thief? Is it the swindler, who caused the theft to occur even though he did nothing with his own hands, or perhaps the creditor, who unknowingly took a stolen sheep thinking he was taking what was his? Which of them will be liable for the double payments? The answer is a matter of dispute, and it revolves around the principle we discussed earlier in the tractate: an agent for a transgression.
"There is no agent for a transgression":
The standard rule is that there is no agency for a transgression. If someone commands his friend to rob a bank, and the friend robs it - the robber cannot place the responsibility on the sender. The perpetrator bears full responsibility, and even if he was persuaded to do so in some way, whether by threat or by payment - it makes no difference. He is the one who committed the theft, and even though it was done at the persuasion of another, he is the thief.
The reason for this, as the Gemara states: "The words of the Master and the words of the student, whose words do we heed?" When a person receives instructions from the Master and instructions from the student, to whom should he listen? This is a rhetorical question: Hashem said "You shall not steal," and the persuader says "Steal" - to whom is it proper to listen? The answer is simple, that one must listen to the words of Hashem, and therefore the perpetrator is the one responsible to Heaven for violating the commandment.
The Question of the Rishonim:
The dispute among the Rishonim revolves around the question: What is the law when the one committing the act does not know at all that he is stealing, like the creditor who takes a sheep that belongs neither to him nor to his sender? After all, he has no intention of defying Hashem, since he does not know he is stealing. Do we say that at the end of the day he is the perpetrator and he is responsible, or perhaps here he does indeed act as an agent for a transgression - since he did not know he was defying Hashem and did not know he was acting as a thief - and therefore the true responsible party is the sender, the swindler who tricked him, and he is the one who will pay? The Rishonim answer this question, and we will discuss their approaches below. First, we will explain the text of the Mishnah.
The Cases of the Mishnah:
"Nesano livechoros beno" - The swindler gives the victim's sheep to a kohen for the redemption of his son. The rule is that a firstborn male child, in many circumstances, is redeemed with five selaim - five silver coins or their equivalent - given to a kohen. Here the swindler says to the kohen: "I am giving you five selaim, come to my farm and take one of my sheep worth five selaim." It turns out that the swindler causes the kohen to steal a third party's sheep, and when the kohen walks away with the sheep - he is an unintentional thief.
"O l'vaal chovo" - The swindler owes money to his friend, and causes his creditor to come and select the sheep for himself. Once again, the creditor is the one who actually takes the animal, while the swindler does nothing.
"O l'shomer chinam, l'shoel, l'nosei sachar o l'socher" - The swindler says to a third party: "Act as my watchman, take the animal to my house and I will take care of it later," and presumably his intention is that the kohen or the creditor will take the sheep not from the farm but from the swindler's house. But the one who actually removes the animal from the owner's domain is the watchman, not the swindler.
In all these cases, the Mishnah returns and parallels its first section:
"Haya moshcho vemes birshus habe'alim - patur" - if the unintentional thief, the kohen, or the creditor and the like, pulled the animal, and it died while still in the owner's domain. Since an act of lifting was not performed here, but rather only pulling, and pulling does not acquire or transfer ownership as long as the animal is in its owner's domain. Therefore, everyone is exempt and there is no payment at all. And as the Bartenura says, even the swindler is completely exempt, for he did nothing but tell the kohen to take the animal, and the animal died before an act was technically performed.
"Hagbiho o shehotzio mirshus habe'alim vemes - chayav" - if the kohen or the creditor lifted the animal from the ground, or pulled it and took it out of the domain. From the moment the pulling is done in a neutral area, in an alleyway or anywhere outside the owner's domain, an actual transfer takes place and an act of acquisition is performed, and the animal is considered stolen. Once it dies - there is an obligation to pay.
Who is obligated to pay? Two approaches:
The Bartenura: It appears from his words, even though he does not state this explicitly, that the responsible party is the thief, namely the swindler, as several Rishonim learned. He is the one who will be obligated in the double payment, based on the principle that "there is no agent for a transgression": even though the kohen or the creditor performed the act of stealing, they did not know about it, and therefore the true culprit is the swindler.
The Rambam: Explains explicitly that this is not so. The rule that there is no agent for a transgression is absolute, and even one who was misled into committing the transgression - he is the responsible party. Therefore, the Rambam rules that the kohen or the creditor who took the animal, even though they stole unintentionally, are thieves, and they must return the animal and even pay the double payment.
And seemingly this is indeed the law. It is understood that at this stage the kohen could go back and sue the swindler, but the bottom line is that the person to whom the original owner of the sheep will turn is the actual taker - that kohen or creditor who was deceived and misled.
In summary: In this Mishnah we learned that the obligation of theft, with its two consequences - return and double payment, and responsibility like a borrower - depends on an act of acquisition: lifting which acquires anywhere, or pulling which acquires only outside the owner's domain. If the animal dies before the act of acquisition - he is exempt; after it - he is liable. In its second section, the Mishnah deals with a swindler who tricks another into taking the animal - a kohen for Pidyon Haben, a creditor, or a watchman - and the question of who is the thief: according to the Bartenura it is the swindler, because the perpetrator did not know at all that he was stealing, and according to the Rambam it is the actual taker, since there is no agent for a transgression even when stealing unintentionally.