Suffer The Thief
‘One Stole And Another Stole It From Him …’
(Bava Kamma 68a)
The baraisa on our daf states that a person who steals a stolen object from a thief must only pay keren (the object’s worth), not kefel (the penalty). Rashi (s.v. “vesheni eino meshalem ela keren”) cites the Gemara (infra 69b), which derives this halacha from Shemos 22:6: “ve’gunav me’beis ha’ish – and it was stolen from the man’s house.” Only if the item is stolen “from the man’s house” must the thief pay kefel. If it is stolen from another thief’s house, the thief is exempt from the penalty.
Defining A Thief
The Ketzos Hachoshen (34:3) explains that theft means removing an object from its legal owner’s domain. Thus, stealing an object from someone to whom it does not belong is not theft. Therefore, the Ketzos Hachoshen argues, not only does the “thief” not pay kefel, he is not even legally classified as a thief and, as such, is not disqualified (as thieves are) from serving as a witness in beis din. Furthermore, if the stolen object was accidentally damaged while in his possession, he is not held responsible.
The Ohr Same’ach (Hilchos Geneiva 3:2) disagrees. He maintains that although this person need not pay kefel, he is legally a thief and is held responsible if the item is damaged while in his possession.
To Whom
While, at first glance, it would seem that our baraisa, which requires the second thief to pay the principal, accords with the position of the Ohr Same’ach, Rashi (s.v. “ve’lo teima”) interprets the baraisa differently. He writes that if the original owner despaired of recovering the stolen object, the second thief must pay the principal to the first thief.
The Victim
Rabbi Elchanan Wasserman (Kovetz Shiurim os 17) explains that since the first thief must return the object he stole to its owner, the second thief caused the first thief a loss by stealing it from him. And that is why the second thief must pay – not because of any obligation to the original owner but because he caused a loss to the first thief.