Bava Kamma, Chapter 9, Mishnah 9. The Mishnah continues to deal with the obligation to return stolen property with an additional fifth, without which the thief cannot bring his guilt-offering for robbery and achieve atonement. This time the Mishnah discusses a special case: a person who stole from his father.
The Case in the Mishnah:
"Hagozel es aviv venishba lo vemes" - a person stole four pieces of wood from his father. The father turned to him and asked where they were, and the son replied that they were not in his possession. The father demanded that he swear, and the son swore falsely, even though the items were in his hands. Before he managed to repent and return the stolen property with the additional fifth - a fifth piece of wood - the father died.
The question arises: how can the son remove the stolen property from his possession so that he can bring the guilt-offering and achieve atonement? For the son himself inherits from his father, and the wood he stole now returns to him, in whole or in part, by virtue of inheritance, and he has no way to prevent this.
The Mishnah establishes that he must pay the principal - the four pieces of wood - and the fifth "lebanav o le'echav" - to his sons or his brothers. There is a dispute regarding the explanation of this matter:
The first explanation: "His sons" means the father's other sons, who are the thief's brothers (and even paternal half-brothers); and if there are no other sons, to the father's brothers, meaning the thief's uncles. Even though the thief is the heir, since it is incumbent upon him to remove the stolen property from his possession, he gives it to the next relative in line, and at the very least removes it from his own hands.
The approach of Tosafos: Tosafos wonders about this - why would the uncle take precedence over anyone else, when he is not the heir at all, but rather the thief himself is the heir? Therefore, Tosafos explains that once he inherited, he inherited, and he merely has to transfer the money to someone else. Thus, "his sons or his brothers" refers to the thief's own sons or brothers, meaning his own heirs, and this makes more sense in defining who is fitting to receive the money.
Either way, the underlying principle is the same: the thief must remove the stolen property from his possession before he can achieve his atonement. Therefore, if he has no one to give it to - for example, if he has no brothers and does not know of any uncles - he gives the stolen property to charity, and says to the charity collector: Know that this money is stolen, I stole it from my father. And through this, he achieves his atonement. This is also deduced by the Rambam from the wording of the Mishnah itself, as we will see below.
A Condition: The Stolen Property Must Still Exist Intact:
The Bartenura, following the Rambam, establishes that all of this applies when the stolen object exists exactly as it was: he stole four pieces of wood, and the four pieces of wood are still in his hands. But if they were made into a table in the meantime, the thief acquired them through a physical change, and this is no longer defined as "that which he stole," and he has no obligation of restitution at all, and thus the question is nullified entirely.
The Vilna Gaon points out that the Rosh and Rashi disagree with this: even if the stolen object has changed or is no longer in the world, whatever the case may be, he still has an obligation to pay its value to the victim or to the victim's heirs. In this way, the thief, who is the son, does not benefit from his robbery, and he has the ability to remove it from his possession and achieve atonement by bringing the guilt-offering.
"Im eino rotzeh o she'ein lo" - if he does not want to or does not have:
The Mishnah continues and discusses someone who wants atonement and repentance, and even regrets his actions with a full heart and will not return to steal from his father or from anyone else - but he does not have the strength to give up the money:
"Eino rotzeh" - he does not want: He does not wish to lose the money. Let us assume it involves an inheritance of a million dollars, and he is unwilling to give it up.
"O she'ein lo" - or he does not have: According to the Bartenura, he does not have the means to give up this inheritance. It is all the money he has in the world, and with it he supports his wife and children; if he returns it to his uncle, he will starve his household, and he is unable to do so.
Therefore, the Mishnah provides a halachic opening, through which the stolen object itself leaves his possession, yet its financial value remains in his hands. Let us illustrate: The stolen object is a valuable item worth ten thousand dollars. He is not permitted to take the item itself, but "loveh" - he borrows: he borrows money from another person or from a bank, and tells the lender that he has a valuable object of this worth that he can collect for himself from the brother holding the inheritance.
It turns out that the robber does not acquire the object nor does he sell it, but rather he borrows against it as collateral, and "u'va'alei chov ba'im ve'nifra'in" - and the creditors come and collect: the creditors collect the collateral and take the stolen object for themselves. In this way, the object actually leaves his possession, and yet he derives financial benefit from it.
This is merely a kind of legal fiction, and it is certainly not the ideal way to act initially, nor is it the optimal way to perform the mitzvah, but it is effective. Therefore, for someone who lacks the ability to fulfill the matter in the optimal way, this is his alternative path, and it is far better than nothing at all: the stolen item has left his possession, and he has repented and brought his sacrifice according to the law.
The Approach of the Rambam in Explaining the Wording of the Mishnah:
The Rambam holds that there is no real difference between "eino rotzeh" and "ein lo", since everything depends on his level of willingness to give up the money. Therefore, he explains that "eino rotzeh" includes both of them - whether he does not want to or is unable to; whereas "o she'ein lo" means that he has no one to whom to give the stolen item, as explained above. In this case, he gives it to the charity wardens and declares that he stole this money from his father, and thereby he fulfills the obligation of removing the stolen item from his possession.
In summary: In this Mishnah, we learned the law of one who robs his father and swears falsely to him, and the father dies before the return. Since the robber himself is an heir, he must remove the stolen item from his possession: according to one explanation - to his brothers, and if there are no brothers, to his uncle; and according to the opinion of Tosafos - to the sons or brothers of the robber himself. And if there is no one to give it to - to charity, with a declaration that this money is stolen. We discussed the condition that the stolen item must remain intact according to the approach of the Rambam and the Bartenura, and those who disagree with them, the Rosh and Rashi; and the opening that the Mishnah provided for one who does not want to or is unable to give up the money - that he should borrow against the object and the creditors will collect from it, and thereby the stolen item will leave his possession and he will attain his atonement.