Unfortunately, Jeremy was not a scrupulous fellow and was often involved in various forms of theft. One day he saw the gabbai of his shul, Mr. Prince, leave an envelope with money in his desk.
Jeremy then approached his friend Yossi and said to him, “I left an envelope with money in shul today. Would you be able to stop by this evening and take it? It’s in the gabbai‘s desk.”
“No problem,” said Yossi. In the evening, he went to the shul and took the envelope.
The following day, the gabbai summoned Yossi to his office. “Last night someone stole money from the shul,” he said. “The surveillance camera shows that it was you.”
“Jeremy told me to take it,” replied Yossi. “If anyone is liable, it’s Jeremy.”
Mr. Prince called Jeremy in and demanded his money back. “How can you hold me responsible?” Jeremy replied. “I didn’t do anything! Yossi didn’t have to listen to me. He’s responsible for his own actions.”
“Where is the money now?” Mr. Prince asked Yossi.
“I was mugged on my way to Jeremy’s house,” said Yossi.
Mr. Prince took the two of them to Rabbi Dayan, who proceeded to analyze the case as follows:
“The Gemara [Kiddushin 42b; Bava Metzia 10b] teaches that there is no agency for sin [ein shliach l’dvar aveirah]. Thus, when someone sends an agent to steal or damage, the sender is not legally liable; the thief himself is accountable.” [Rema Choshen Mishpat 182:1; 348:8]
“Why is that?” asked Jeremy.
“The basic rationale is that each person is responsible to fulfill G-d’s commands,” explained Rabbi Dayan. “Therefore, the excuse that so-and-so sent me to steal or damage does not exempt the thief since G-d – whose commands are superior – instructed him not to steal.” [Sma 182:2]
“In this case, though,” pointed out Yossi, “I had no idea that the money was not Jeremy’s.”
“Indeed, according to one opinion in the Gemara, if the agent did not have a choice not to obey, the sender is liable since the rationale does not apply,” replied Rabbi Dayan. “Tosafos applies this logic to a case like ours in which the agent was unaware that he was instructed to transgress. The Nimukei Yosef, though, disagrees and exempts the sender.” [Shach 348:6]
“Similarly, some maintain that if the agent is known to transgress, the sender is liable since the rationale does not apply since the sender was aware that the agent would fulfill his instructions and not listen to Hashem’s,” added Rabbi Dayan. “Others do not differentiate since the agent remains commanded and has the option to disobey. Some also maintain that if the sender threatened the agent to obey his instructions, he is liable for the theft.” [Rema, Choshen Mishpat 388:15; Shach 388:67; Pischei Choshen, Geneivah 4:24]
“Thus, the question of Jeremy’s culpability is subject to a dispute since Yossi thought the money was Jeremy’s,” concluded Rabbi Dayan. “Regardless, Jeremy has a moral obligation to pay back what was stolen. If the money is now lost, he is liable for it like any other lost item.” [Pischei Choshen, Geneivah 4:23]