Takanat HaShavim: Building a System of Justice One Stolen Beam at a Time

(21) When a person sins and commits a trespass against the LORD... (23) When one has thus sinned and, realizing his guilt, would return that which he got through robbery...

(24) ...and add a fifth part to it. He shall pay it to its owner when he realizes his guilt. (25) Then he shall bring to the priest, as his penalty to the LORD, a ram without blemish from the flock, or the equivalent, as a guilt offering.

Rabbi Yoḥanan says: Anyone who robs another of an item worth one peruta is considered as though he takes his soul from him, as it is stated: “So are the ways of every one that is greedy for profit; it takes away the life of the owner thereof” (Proverbs 1:19). And it states: “And they shall consume your harvest, and your bread, they shall consume your sons and your daughters” (Jeremiah 5:17). Since they will consume the harvest and bread, it is as though they consume one’s children as well because there will be no food to feed them.

The Gemara relates: There was a certain old woman who came before Rav Naḥman. She said to him: The Exilarch and all the Sages in his house have been sitting in a stolen sukka. She claimed that the Exilarch’s servants stole her wood and used it to build the sukka. She screamed, but Rav Naḥman did not pay attention to her. She said to him: A woman whose father, Abraham, our forefather, had three hundred and eighteen slaves screams before you, and you do not pay attention to her? She claimed that she should be treated with deference due to her lineage as a Jew. Rav Naḥman said to the Sages: This woman is a screamer, and she has rights only to the monetary value of the wood.

§ The mishna teaches that Rabbi Yoḥanan ben Gudgeda further testified about a stolen beam that was already built into a building and said that the injured party receives the value of the beam but not the beam itself. With regard to this, the Sages taught in a baraita (Tosefta, Bava Kamma 10:5): If one robbed another of a beam and built it into a building, Beit Shammai say: He must destroy the entire building and return the beam to its owners. And Beit Hillel say: The injured party receives only the value of the beam but not the beam itself, due to an ordinance instituted called Takanat HaShavim. The Sages were lenient and required the robber to return only the value of the beam. The mishna was taught in accordance with the opinion of Beit Hillel.

(5) Anyone who commits robbery must return the very object he robbed, as it is written: "He shall restore what he took by robbery" (Leviticus 5:23). If, however, the object is lost or altered, he must pay its value. Whether he has confessed of his own accord, or witnesses have testified that he committed robbery, he is required to repay the capital value only. Even if he took a rafter by robbery and built it into a structure, inasmuch as it underwent no change, biblical law requires that he shall pull down the whole building and give back the rafter to its owner. The sages, however, have ruled for the benefit of repentant sinners (Takanat HaShavim), that he may repay its value and does not have to demolish the structure. The same is applicable to all similar cases. Even if one took a rafter by robbery and used it for the sukkah, and the owner came to claim it during the Sukkoth festival, he has to repay only its value. But if it is claimed after the festival, he must return the rafter itself, inasmuch as it has not been altered and he has not built it in with mortar.

Rabbi Yoḥanan says: This mishna, i.e., the statement of the Tosefta, was taught in the days of Rabbi Yehuda HaNasi, as it is taught in a baraita: There was an incident with regard to one man who desired to repent after having been a thief for many years. His wife said to him: Empty one [reika (dummy)], if you repent you will have to return all the stolen items to their rightful owners, and even the belt that you are wearing is not yours, and he refrained and did not repent. At that time, the Sages said: With regard to robbers or usurers that returned either the stolen item or the interest to the one from whom they took it, one should not accept it from them. And concerning one who does accept it from them, the Sages are displeased with him.

Anyone who robs another of an item worth one peruta is considered as though he takes his soul from him, as it is stated: “So are the ways of every one that is greedy for profit; it takes away the life of the owner thereof” (Proverbs 1:19). Even so, (despite the severity we just described of even a small theft), if the object is no longer available and the thief wants to do teshuvah and comes of his own initiative to return the value of the theft, the sages instituted a regulation that we do not accept this from him. Rather, we should help him and forgive him, all in order to make the straight path accessible to penitents.’