QUESTION: The Mishnah teaches that if one stole the value of a Perutah (the smallest denomination of coin) and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.

The Mishnah later discusses two additional cases. In the first case, the victim waived the Keren (principle) obligation of what was stolen from him, but he did not waive the penalty of Chomesh (fifth) which the Torah requires a thief to add to his payment when he stole, swore falsely, and admitted his wrongdoing. In the second case, the victim waived both the Keren and the Chomesh, except for less than a Perutah's worth of the Keren. In both cases, the penitent thief is not required to go after the owner in order to return the Chomesh or less than a Perutah of the Keren.

TOSFOS (104b, DH Chutz) asks, why is it necessary for the Mishnah to say that if he waived the Keren except for less than a Perutah, he does not have to go after the owner in order to return the stolen item? The first part of the Mishnah states that he is obligated only to go after him to return the money if he stole something worth at least a Perutah. It follows that if it is worth less than a Perutah, he is exempt from returning it. Why does the Mishnah need to mention another case in which the thief owes less than a Perutah of the Keren?

(a) The SHITAH MEKUBETZES answers in the name of the ROSH that if the exemption in this second additional case would not have been mentioned, one might have thought that the thief is obligated to travel to the owner and return less than a Perutah. Since he originally stole something worth more than a Perutah, perhaps his obligation to return it remains even if the owner waives all but less than a Perutah's worth. The second part of the Mishnah therefore needs to teach that he is exempt and does not have to travel to the owner and return it. (This answer is also given by REBBI AKIVA EIGER in his commentary on the Mishnayos, #74.)

(b) The TOSFOS YOM TOV (9:6) answers this question with a statement of the RAMBAM (Hilchos Gezeilah 7:11). The Rambam rules that when the thief is obligated only to pay less than a Perutah or to pay a Chomesh, he is not required to travel to the owner to return the money. The Rambam adds, "But the victim of the theft may come and take the remainder." According to the Rambam, when the Mishnah states that the thief does not have to travel to the owner, it implies that if the owner comes to the thief and asks for his money, the thief is obligated to give it to him even though it is less than a Perutah.

(The SHULCHAN ARUCH (CM 359:1) rules that even though Beis Din cannot force a person to return the theft of less than a Perutah, one certainly is prohibited from stealing less than a Perutah. See also the MINCHAS ASHER (Parshas Noach) who discusses at length the nature of the prohibition of stealing less than a Perutah.) (D. BLOOM)

QUESTION: The Mishnah teaches that if one stole the value of a Perutah and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.

The Gemara infers from the Mishnah that the thief is required to travel to the owner to return the stolen object only if he swore falsely that he did not steal it. If he made no oath, he is not required to travel to return it. The Gemara asks that this is not consistent with the opinions of Rebbi Tarfon and Rebbi Akiva as expressed in the Beraisa. The Beraisa discusses a case in which a person stole from one person in a group of five, but he does not know exactly from whom he stole. Each person in the group claims that he was the victim. According to Rebbi Tarfon, the thief fulfills his obligation to return the stolen object by leaving it in front of them. The RASHBA (based on Bava Metzia 37b) comments that Rebbi Tarfon does not mean literally that he places the object in front of them and leaves, because the object might end up being taken by someone other than the true owner, or the people in the group might share it among themselves when in truth it belongs only to one of them. Rather, Rebbi Tarfon means that the thief places the object in Beis Din. RASHI in Bava Metzia (37b, DH Amar Rav) writes that the thief asks Beis Din to find out who is the real owner. (Rashi's opinion will be discussed in detail in answer (b) below.)

Rebbi Akiva argues with Rebbi Tarfon and rules that the thief must give back the value of the stolen object to every one of the five people in the group.

The Gemara discusses which opinion the Mishnah follows. It cannot follow the opinion of Rebbi Tarfon, because he maintains that even if the thief swore falsely he may place the stolen object among them and leave. RASHI (DH Meni'ach) explains that the Gemara means that the thief clearly is not required to return the stolen object to the victim; it suffices for him to place it in front of the victim (or in this case, in front of Beis Din who acts as the agent of the victim).

The Gemara continues that the Mishnah does not seem to follow the opinion Rebbi Akiva either, because he maintains that even if the thief did not swear falsely he must return what he stole to all five possible victims. The Mishnah, however, states that the thief must ensure that the stolen object reaches the victim only when the thief had sworn falsely. The Gemara concludes that indeed the Mishnah follows the opinion of Rebbi Akiva, and Rebbi Akiva maintains that the thief must repay all five only when he had sworn falsely.

Why does the Gemara suggest that the dispute between Rebbi Tarfon and Rebbi Akiva in the Beraisa applies only when the thief swore falsely? Perhaps the dispute in the Beraisa refers to a case in which the thief did not swear. When he did swear falsely, perhaps even Rebbi Tarfon agrees that he must deliver the stolen object to the hands of the victim. According to this possibility, the Mishnah could follow the view of Rebbi Tarfon as well! Why does the Gemara not suggest this possibility?

(a) TOSFOS (DH l'Olam) answers that the Gemara always attempts to set up the Mishnah consistent with the opinion of Rebbi Akiva. Tosfos provides a source for this from the Gemara in Bava Metzia (82a) which asks on a certain point, "If so, does the Mishnah argue with Rebbi Akiva?" This suggests that the Mishnah normally follows the opinion of Rebbi Akiva.

RASHI (DH l'Olam) cites the Gemara in Sanhedrin (86a) which provides good reason for assuming that the Mishnayos should follow Rebbi Akiva's opinion. Rebbi Akiva was the teacher of Rebbi Meir, the primary author of all of the Mishnayos which are not attributed to any specific Tana. Accordingly, the opinions stated by Rebbi Meir presumably were learned from Rebbi Akiva.

(b) The RASHBA answers that when the Gemara says that the Mishnah follows the view of Rebbi Akiva, it does not mean that it follows only Rebbi Akiva and not Rebbi Tarfon. Rather, it means that the Mishnah follows even Rebbi Akiva and it certainly follows Rebbi Tarfon.

The Rashba adds that Rebbi Tarfon agrees that if a thief swore falsely, according to the letter of the law he must return the theft personally to the owner. (This in fact is the conclusion of the Gemara below, end of 103b.) If he does not do so, he may not bring his Korban Asham to receive atonement.

However, even though Rebbi Tarfon agrees in principle that he must return the theft personally, in practice he does not have to track down the owner to return the theft to him when he stole from one out of five people and does not know the identity of the victim. This is because of the decree of Rebbi Eliezer b'Rebbi Tzadok mentioned here in the Gemara, that if the expenses involved in returning the theft are greater than the theft itself, it suffices to pay the Keren and Chomesh to Beis Din.

As explained above, the Gemara in Bava Metzia (37b) states that he may place the stolen object in Beis Din. This is consistent with the decree of Rebbi Eliezer b'Rebbi Tzadok. The Rashba also asserts that the source for the ruling of the Mishnah (103a) that the thief may give the stolen object to the agent of Beis Din is the decree of Rebbi Eliezer. (See Rashi to 103a, DH l'Shali'ach, but see Tosfos DH ha'Gozel who disagrees.)

Therefore, the Rashba writes that when the Gemara states that the Mishnah follows Rebbi Akiva, it means that it can be consistent even with Rebbi Akiva's opinion. In fact, it is more consistent with the view of Rebbi Tarfon, who maintains that one may place the stolen object among the group of people (which means that he may place it in Beis Din, a law mentioned in the Mishnah.) (D. BLOOM)