Shabbos Parashas Mishpatim - 5777

Shabbos Parashas Mishpatim - 5777

Rabbi Hal Miller

If a man shall steal an ox, or a sheep or goat, an slaughter it or sell it, he shall pay five cattle

in place of the ox, and four sheep in place of the sheep. [Shemos 21:37]

If the theft shall be found in his possession, whether a live ox or donkey or sheep or goat, he

shall pay double.​ [Shemos 22:3]

As Nechama Leibowitz says, "Theft is an offense in all societies." She lists the penalties in

various ancient codes of law, and notes that the Torah does not follow any of them. Our two

verses seem to conflict with each other. What is the Torah teaching us about this offense?

Obviously there must be some identifiable differences in situations for there to be a double,

but also a fourfold and a fivefold penalty. What are those differences and when do they apply?

The Gemora in Bava Kama 79 ties the penalties to the value lost by the owner of the object.

For example, where an ox had been working, the penalty is five times the value of the lost work.

Sheep yield wool, but do not pull a plow, so are worth a little less. Thus, an object not used to

produce anything for the owner would be subject to the double penalty. Rashbam cites this.

Abarbanel's opinion is similar, in that the penalty depends on the impact upon the victim rather

than from the viewpoint of the thief. Where Abarbanel differs is that he rules based on

replacement value rather than original value.

Rambam differentiates based on whether the thief still holds the item, or has either disposed

of it or destroyed it, such as butchering an animal. If it is still whole and in the thief's possession,

he pays double. If it has been sold or destroyed, he pays the four or fivefold, depending on

what animal it was.

Rav Hirsch notes that the penalty applied depends on the stolen item. Oxen are recompensed

at five, sheep at four, and other animals or inanimate items at double.

But we still have sheep and ox listed in the four and five times section and also in the double

section. How do we understand this? Mechilta asks that if the second verse includes these

animals at double, what is the first verse teaching us with the increased penalty? And why does

this exception verse come before the more general case? Malbim answers by noting that the

second verse, the double penalty, applies where the animal is found in the possession of the

defendant, which does not require that this defendant be the one who stole it--he could have

found it on the street and not tried to locate the true owner. The first verse specifies that this

defendant is in fact the one who stole the animal, thus he gets the larger penalty. Had the

order been reversed, the double penalty would be seen to apply in all these cases, not just to

the situation of sale or butchering.

Rambam explains the order by saying that most thieves will either butcher or sell the animal

as quickly as possible to prevent it being found in their possession, thus this is the more

ordinary case, and the practice of the Torah is to first explain the ordinary case.

Ramban includes this law under the Seven Noachide laws, making it one of the most

important in that the entire world is supposed to follow it. Stealing anything is clearly wrong,

but stealing a person's livelihood requires an even greater penalty in order to maintain the

operation of the world.