Ein Shaliach LeDavar Aveira

Bava Kama (7:6) | Yisrael Bankier | 11 days ago

The seventh perek discusses the obligation of a thief to pay back more than he stole. A ganav ordinarily must pay double the value of what he stole (kefel). If however he stole a sheep or cow and then either sold or slaughtered the animal, the Torah obligates him to pay four or five times the value respectively. The sixth Mishnah discusses the case where the animal dies as it is being stolen. If he had not picked up the animal or removed it from the property of his victim before the animal died, then since it had not yet been considered in the possession of the thief, he has not stolen it and is exempt from the double compensation.

The Mishnah however discusses cases where the object was considered stolen by an unknowing accomplice. For example, where the thief instructed his creditor to take the animal to pay of his debt, leading him to belief it was his. Similarly, if he instructed a custodian to take the animal, the law would be the same. If this third party picked up the animal or removed it from the property of the victim, then the thief is obligated to pay double.

The Tosfot Yov Tov cites the Tosfot that address the following question on the Mishnah. The shomer or creditor is effectively actings as this thief's shaliach to commit the crime, through which he obligates him with kefel. Normally however, we rule that ein shaliach le'davar aveira -- there is no shlichut in such circumstances -- so how could the actions of this third party obligate that ganav to pay kefel. The Tosfot answer that this case is an exception since the third-party is unaware the prohibition is being violated. The logic behind ein shaliach le'davar aveira is "divrei ha'rav, divrei ha'talmid, divrei mi shomin". In other words, we reason that the shaliach's prime responsibility is to listen to Hashem and not the person that asked to commit the sin. In this case the shaliach thought that it belonged to the ganav, consequently there was no reason why he would not take it for him.

R' Akiva Eiger (Bava Metzia 10b) presents two ways to understand this logic. The first is in the name of the Sema. Divrei ha'rav, divrei ha'talmid, divrei mi shomin is normally the defense for the meshaleach since he would not have expected the shalaich to follow through. For that reason, the Sema maintains that if the shalaich is a mumar, a person with complete disregard for mitzvot, then the defense no longer applies.

R' Akiva Eiger however argues that we would still say ein shaliach le'davar aveira in the case of a mumar. That is because since the individual is required to heed the divrei ha'rav, it automatically annuls any attempted shelichut. That being the case, how do we understand our Mishnah?

The Tosfot Yom Tov cites the Nemukei Yosef who argues that we would still say ein shaliach le'davar aveira in our Mishnah. When the Mishnah say chayav, it obligates that shaliach or creditor to pay. They are not obligated to pay kefel since they did not know that they were affectively stealing. Nevertheless, they become responsible for returning the objects to the true owner.

Finally, the Tosfot Yom Tov cites the opinion of the Rambam, as explained by the Magid Mishnah, who understands that the case in this Mishnah is where this third party is aware the item does not belong to the ganav. The Mishnah is teaching that even though we rule that if one steals from a ganav they are not (also) obligated to pay kefel, in this case, it never was in the possession of the "ganav". Consequently, the third-party is obligated to pay kefel.

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