Commentary for Exodus 22:2

אם זרחה השמש עליו IF THE SUN SHONE UPON HIM — This is only a metaphorical expression signifying: if the fact is clear to you that he is peaceably disposed towards you. The simile is: just as the sun brings peace (happiness) to the world so if it is evident to you that he did not come with the intention of killing, even if the owner of the property would resist him (Sanhedrin 72a), as, for instance, when a father breaks in to steal the money of his son, for it is certain that the father cherishes feelings of pity for his child and the matter of taking human life is not in his thoughts at all, — then

IF THE SUN HAS RISEN UPON HIM.²⁰²The verses read: 1. If a thief be found breaking in, and be smitten so that he dieth ‘ein lo damim’ (there shall be no guilt of blood incurred for him). 2. If the sun be risen upon him ‘damim lo’ (there shall be guilt of blood incurred for him). He shall make restitution; if he have nothing, then he shall be sold for his theft. “This is nothing but a metaphorical expression, [for did the sun rise upon him alone? Does it not rise upon the whole world? It means etc.]²⁰³The Hebrew text shortens here Rashi’s interpretation, since Ramban’s intention here is not to comment on Rashi’s own explanation, but upon Rashi’s understanding of Onkelos. But Onkelos who rendered the phrase if the sun has risen upon him as: ‘if the eye of the witnesses fell upon him’ chose a different way of interpreting the verse, which is as follows: if the witnesses found the thief before the householder came, and when the householder came to resist the thief, they warned him not to kill the thief, then damim lo, he is liable if he killed him, for since there were witnesses watching him, the thief had no thought of taking human life, and he would not have killed the householder.” Thus is Rashi’s language.
But I wonder! When He said above [in Verse 1], there shall be no guilt of blood incurred for him, thereby acquitting the householder for the murder of the thief, it must surely be speaking of a case where the witnesses warned him not to kill him, for no murderer is ever liable to death without prior warning. And if you say then that in stating: there shall be no guilt of blood incurred for him, Heaven permitted the thief’s blood to be shed, that is to say, it is permissible to kill him — that is not true!²⁰⁴I.e., such an interpretation cannot be the true meaning of this particular verse. For while the law itself is true [that the owner is permitted to kill him], but here the verse speaks of a case where he has already killed him! So how can you say that the intent of the verse is to give him permission to kill him, when he has already killed him! Moreover, since damim lo [in Verse 2] declares the householder culpable both by the court and at the hand of Heaven, then ein lo damim [in the preceeding verse, stating the opposite case], must as a counterpart free him from both, and the way Rashi interpreted Onkelos ein lo damim frees him only from punishment at the hand of Heaven! In other words, Verse 2 must be a case where there were witnesses, as is indicated by the phrase if the sun be risen upon him, as Rashi understands Onkelos. In contrast Verse 1 speaks of a case where there were no witnesses, and hence it cannot refer at all to freeing him from the death by the court, for the court can never act anyway without witnesses; but instead it refers only to freeing him from death by the hand of Heaven. But in that case, the ein lo damim [of Verse 1] and damim lo [of Verse 2] are not in exact contrast: ein lo damim frees him only from punishment by Heaven, and damim lo holds him guilty in both! (Mizrachi). Rather etc. Rather, the first verse acquits the householder under all circumstances from the hand of Heaven, [where he had no prior warning], and from the court if he had prior warning, and the second verse [dealing as it does with another set of circumstances], holds him guilty by the law of both. Perhaps the Rabbi’s intention [i.e., Rashi’s intention in interpreting Onkelos’ translation], was to say that if the witnesses found the thief before the householder came, and recognized him, and the thief knew of their presence, then the thief no longer could have intended to take human life, since he saw that the witnesses recognized him and knew that if he would kill, the witnesses would come to court and have him put to death. And this is the reason for the expression, if the sun has risen upon him, for at night, seeing that the witnesses did not recognize him, he would kill the householder and escape.
In my opinion Onkelos intended to say that if the thief has left the break-through, and the householder comes to court to say that he has witnesses that he was found breaking through, damim lo [literally: “he has blood”] as other living people do, and it is not permissible to kill him, and if the householder did kill him, he is to be put to death; but the thief is to pay if he took anything from there. Scripture uses the expression, if the sun be risen upon him because it speaks of the usual manner, for those who break into homes generally do so at night when no one recognizes them, and the one who kills them there is free and may do so with impunity. But if the thief stayed there until the sun had risen upon him, and then left in a stealthy manner and ran for his life, then if the householder comes to bring a charge against him with the help of witnesses, he [i.e., the thief] is not liable to death, neither by the hands of the court nor by the householder. If this is so, then — according to the opinion of the Sage who says²⁰⁵The opinion is that of Rav (Sanhedrin 72 a). that a thief who broke into a house and took some of its vessels and went out, is free from paying for them, because he acquired them with “blood”²⁰⁶Had he been found by the householder while still in the house and he were killed by him, the householder would be free from punishment. — we must say that the second half of the verse which states, he shall make restitution; if he have nothing, then he shall be sold for his theft, refers back to a previous verse [i.e., Verse 37 in the preceeding chapter]: if a man steal an ox etc. A similar case is the verse, And also unto thy bondwoman thou shalt do likewise.²⁰⁷Deuteronomy 15:17. This is to be connected with Verse 14 there, which states that the master must present gifts to a manservant who goes out free, and here it states that the same must also be done to a maidservant. But it does not refer to the first half of that verse [17] which speaks of the piercing of the ear of a manservant, since that law does not apply to a woman.
The plain meaning of the verse is known to be as follows: If a thief dug through into a home at dark, and was found there at night, he may be killed; but if the sun shone upon the thief and someone saw him and recognized him, he may not be killed, but he must pay for what he stole and took from there at daytime. The meaning of the term hashemesh (the sun) is “in the sight of those who saw him.” Similarly, in the sight of this sun²⁰⁸II Samuel 12:11. means “openly.” The reason for this law is as we have mentioned, that one who comes at night will kill the householder, [and therefore the householder may kill him], whilst one who comes at daytime will flee from him [once he is recognized].

ונמכר בגנבתו, if the Torah had not legislated this form of paying off one’s debt for theft most of the poor people of the nation would become thieves, knowing that they did not have to make restitution except with liquid assets. As a result of such lack of legislation civilisation would disintegrate into anarchy.