פירוש על שמות 22:3

המצא תמצא IF THE THEFT BE CERTAINLY FOUND IN HIS HAND i. e. in his possession (Mekhilta d'Rabbi Yishmael 22:3:2), he having neither sold it nor slaughtered it he shall pay only double.

אם המצא תמצא ביד הגנב, If it was indeed found in the hands of the thief, etc. The reason that the Torah repeats the word המצא "to be found" is, A) if there are witnesses who testify that the thief has stolen this particular animal; B) that the owner or others have found the animal in its original state in the possession of the thief. If neither of these two conditions exists the thief is presumed to have either sold or slaughtered the animal in question and he has to make four or five-fold restitution on the basis of this assumption. The words: "he shall pay double" apply only when the animal is located unharmed. You should appreciate also that the law of four or five-fold restitution applies not only in the examples cited by the Torah; the same applies if the animal was lost or the thief gave it away as a gift. As long as the animal left the domain of the thief he becomes liable for this four or five-fold payment. Baba Kama 79 states so explicitly. The same applies even if the thief donated the animal to the Temple. I believe we can use this nuance as proof that if someone stole from a pagan or idolator he is not liable either for the double payment or to be sold for such theft if he is unable to make restitution as provided for in verse two. I am basing this on the use of the word רעהו in connection with this legislation (compare verse 35). This word always refers to someone who is a fellow-Jew. Clearly, the legislation in 21,35 applies only to offences committed against fellow Jews as mentioned in the Mechilta. We also know that the situation of a Jew being sold into servitude when unable to make repayment for theft applies only when the theft had been perpetrated against a Jew. Theft from Temple property also does not carry this kind of a penalty. The above is the opinion of Maimonides expressed in chapter three of his Hilchot Geneyvah. Since Maimonides does not cite a reason for these rulings I have decided to suggest the reasons for his decisions.

אם המצא תמצא בידו, he had not sold or otherwise disposed of the stolen animal;