레위기 5:23 할라카: Shulchan Arukh, Choshen Mishpat, Sefer HaChinukh, Kitzur Shulchan Arukh & Mishneh Torah, Positive Mitzvot

[With respect to] cattle that injured man, — [the law is that] Judges who are not duly ordained in the Land of Israel²⁸, supra par. 1, n. 1 may not collect payment for his injury because it is a matter that is not of frequent occurrence.²⁹, B.K. 2b where it is stated that ‘man is cautious’ and Rashi explains that it is more difficult to injure a man than an animal since he possesses foresight. However, a man who caused damage to his fellow-man's cattle pays full damages everywhere.³⁰Whether in or outside the Land of Israel. As in the case of one who tears his fellow-man’s garment or breaks his vessels or mutilates his shoots. Likewise, cattle that caused damage by means of Tooth and Foot, since [with respect to the latter] it is regarded as Mua'd ab initio, this is considered a matter of frequent occurrence, and Judges who are not duly ordained in the Land of Israel²⁸, supra par. 1, n. 1 may order the payment thereof.³¹Yad, Sanhedrin V, 11-12. Derived from B.K. 84a-b in the case of the ox that chewed the hand of a child and Raba ruled, ‘Go forth and value the child as if it were a slave,’ and after a lengthy discussion in the Talmud (ibid.), Raba’s dictum, viz., that payment may be collected in Babylon where chattel was damaged by cattle, is explained to have reference to damage done by Tooth or Foot which is considered Mu‘ad ab initio. For Mu‘ad v. Glos. Thus also, [with respect to] one who stole or robbed³²This refers to the unlawful acquisition of chattels by violence. Cf. Lev. V, 23; II Sam. XXIII, 21. [an object], they may collect from him the principal only.³³Yad, Sanhedrin V, 1 , B.K. 84b where it is concluded that in matters of a penal nature we do not act as agents of the former authoritative Judges of Israel. Hence, only the principal may be collected. , also B.K. 115a where such cases were dealt with in Babylon and B.K. 96b in the case of the man who misappropriated a pair of oxen and B.K. 21a in the case of a certain person who built a villa on the ruins that belonged to orphans and when R. Naḥman advised the defendant to make a peaceful settlement with the orphans, he refused to do so, whereupon R. Naḥman confiscated the villa. Cf. also ibid. 37a and 4b. In the latter reference it is stated that theft (גניבה) and larceny (גזילה) involve civil liability. A difficulty, however, presents itself, viz., in the Mishna San. I, 1 and Gemara ibid. 3a we are told that cases of larceny are dealt with by Mumḥin Judges only, which contradicts the present ruling. Tosaf. (ibid. s.v. שלא; B.K. 84b s.v. אי נמי; Git. 88b s.v. אי הכי) explain that the Mishna ibid. refers to cases of larceny by means of injury inflicted (גזילות ע״י חבלות), in which case only Mumḥin Judges may adjudicate the matter. Hence, in such cases of larceny we nowadays cannot act as the agents of the former authoritative Judges, since this is a matter of infrequent occurrence, but cases of larceny where no bodily injury resulted we may act as the agents of the former. Thus also Kes. Mish. and B.Yos. N.Yos., however, removes the above difficulty as follows: Caro’s ruling that we may order the payment of the principal in cases of larceny refers only to matters of frequent occurrence, such as, one who denies a deposit (v. Gloss anon), but actual larceny is of infrequent occurrence. Hence, it is not adjudicated today (v. D.M. a.l.). ShaK advances a different opinion, viz., that in San. ibid. we deal with the adjudication of fines, e.g., the repayment of the double amount, the four and five-fold restitution, which require only Mumḥin Judges (v. supra par. 1 and notes), but the actual principal is recoverable even by laymen Judges (this is however, a stained interpretation, since the payment of the double etc., refers to cases of theft but not to larceny — Ba’er Heteb). ShaK also writes that the increment (שבח) of the misappropriated article prior to the owner’s resignation, is also recoverable today contra BaḤ. RaN and N offer an altogether different explanation in removing the above difficulty, viz., that as to San. ibid. that requires Mumḥin in cases of larceny, it has reference only to the period when such Judges were available, but if, as today, Mumḥin are no longer available, even laymen Judges may deal with such matters. Thus also Nethiboth, K.H. and Tummim. Otherwise, the earth will become full of violence — A.H. Gloss: And some say [that this applies] only to cases of larceny that are of frequent occurrence, e.g., [a guardian] who denies [having received] a deposit and the like, but actual larceny is not [considered] of frequent occurrence and they do not adjudicate [this] unless the robbed object is [still] intact, [in which case] they order [him] to return it.³⁴N.Yos. to B.K. 84b — G. , previous note.

And one of these sins is: one who illegally has money of a Jew in his hand, from the worth of a small coin and up — for example, he robs him or steals from him, or [money] that remained in his hand from a deposit that was deposited with him or because of a loan or a partnership. The principle of the matter is that [in a case] if he were to admit to him, he would be liable to pay by law, and the robbed or oppressed — or his inheritor or his authorized representative — sues him for it, but he denies it and swears falsely about it; when he repents and regrets his sin and returns the “loot that is in his hand,” he is liable to bring this sacrifice that we said for his sin, besides the fifth that he is obligated to add on the principal and to give to the robbed, as it is stated (Leviticus 5:21), “A soul that sinned and misappropriated a misappropriation from God and denies his kinsman, etc.” And Rabbi Akiva says, “What do we learn to say [from] ‘a misappropriation from God?’ Because any lender and borrower act only with witnesses, [therefore] when he denies, he only denies the witnesses; but one who borrows without witnesses and denies it, he denies the Third Party among them — the Divine Presence — that is why it states, ‘and misappropriated a misappropriation from God and denies his kinsman, etc.’” (Sifra, Vayikra Dibbura d'Chovah, Chapter 22:4). And it is written after it (Leviticus 5 23-25), “And it shall be when he sins and is guilty” — meaning to say that he will repent, such that he takes responsibility for his own guilt — “and return the theft, etc. and he shall pay it from its principal, and a fifth shall he add upon it, etc. And he shall bring his guilt-offering to the Lord, a ram, etc.” And this is what is called the guilt-offering of thefts; and this is from those that come whether for the inadvertent or for the volitional.

It is from the roots of the commandment [that] a person not think that even though the matter of the prohibition of robbery is rectified by a positive commandment, as it is stated (Leviticus 5:23), “and return the theft” — that each one should go and rob what he wants from his fellow and imagine in his heart to say that when he has it and he returns the theft, his iniquity will be atoned and he will be purified from it; and behold, it will be as if he never did it. And this would be an opening for sinners. Hence the Torah made known that even with the repayment with the addition of a fifth, he [still] needs a sacrifice for atonement, for his having sinned. And I have already written above (Sefer HaChinukh 123) about this matter, that nonetheless, it does not save him from having transgressed the will of his Creator. And it is a pity on his head that He transgressed the will of the Master of the Heavens, [even if] he sacrificed several [fat] sheep (peace-offerings) for burnt-offerings. And there I also wrote that the sacrifice and the principal impede the atonement, but the fifth does not impede [it].