YeshivaThe torah world Gateway
Beit Midrash
- Sections
- Chemdat Yamim
- Bemare Habazak - Rabbis Questions
- Family and Society
- Financial Laws and Tzedaka
- Theft and Damage
Answer: We will only scratch the surface of the scholarship on whether one is obligated for geneiva b’shogeg and relate to some of the issues you raise.
The K’tzot Hachoshen (25:1) is among those who posit that a ganav b’shogeg is exempt. He infers this from Rishonim, but his main rationale is that the concept of culpability for accidental financial harm to his friend is limited to mazik (one who physically damages another’s property) because it specifically is derived from a pasuk. Thus, if one takes another’s object without damaging it, he is not responsible to pay for it. Of course, he has to return it when he finds out the truth, but the matter is important if it was lost, damaged, or passed on to someone else.
The Machaneh Ephrayim (Geneiva 7) cogently presents opinions of Rishonim, but agrees with those who obligate a ganav b’shogeg. He is particularly impressed by the gemara (Pesachim 32a) concerning payment made by one who accidentally ate teruma, which says that if the food’s price went down after he ate it, he pays the higher price because "it is no less than one who steals." The Machaneh Ephrayim sees this as proof that there is payment for geneiva b’shogeg.
Let us now discuss your quandary about the need for intention. The gemara (see Bava Kama 79a) does speak of a kinyan (an act of acquisition) as a necessary step for the obligations of a ganav, and kinyanim require a certain level of intent. However, not all of the levels of intent pertinent to geneiva are equal to those regarding other acquisitions. If one lifted up an object to move it out of his way, he would clearly neither acquire nor be considered stealing it. If he wanted to use it without ever returning it, this would be intention for theft even if he tried to be "shrewd" by having in mind to "not acquire it" (it indeed would not become his). Furthermore, even one who intended to briefly borrow something without permission is considered a ganav (Shulchan Aruch, Choshen Mishpat 359:5).
The Machaneh Ephrayim makes a relevant fundamental distinction. Geneiva b’shogeg can be culpable when one intended to bring the object from another’s possession into his own. If one thought he was just continuing using his own, that would not be considered an act of stealing. (This idea is indeed parallel to the halacha regarding intention to acquire something legally (see Yevamot 52a).) According to this, the accidental coat switcher is not even a ganav b’shogeg and does not have, as of the time he took the object, the accompanying responsibilities for its welfare. Cases in which geneiva b’shogeg applies include unknowingly buying a stolen object or even borrowing one.
The Marcheshet (II:32) posits that a ganav b’shogeg has the basic obligations of a ganav. He sees the K’tzot Hachoshen’s source to exempt – the obligation of an unintentional mazik – as the source to obligate an unintentional ganav as well. As such, though, just as a mazik is exempt b’oness (under extenuating circumstances), so too a ganav b’oness is exempt. In our case, taking another’s coat is usually shogeg rather than oness. According to this approach, it could be considered geneiva. Regarding intention, he does intend to use something that turned out to actually belong to someone else.
All agree that one is not disqualified for anything (e.g., testimony) due to such an unintentional aveira. Kefel is never levied in our days, and it is thus not discussed much by poskim. However, logic and implicit statements indicate that this k’nas (penalty), which applies to only certain types of theft and when one is exposed by witnesses, is predicated on full culpability and does not apply b’shogeg.
Bemare Habazak - Rabbis Questions (657)
Rabbi Daniel Mann
161 - Hachnasat Sefer Torah on Chol Hamoed
162 - Stealing by Accident?
163 - The Need for a Mechitza Without a Minyan
Load More
Rabbis in Midrash
Lessons
fast navigation
Shoftim TESHUVA IN COURT OF LAW?
Parshat Shoftim-Chodesh Elul
Why does parshat Shoftim always come out during Elul? This innovative and central explanation is an eye-opener regarding many aspects of Judaism.
The Month of Elul TESHUVA IS THE ANSWER
The month of Elul serves as a vital time for self-reflection and personal accountability to prepare for true repentance.
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Chemdat Yamim Moreshet Shaul: The Goal of an Agricultural Yeshiva – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Chemdat Yamim The Goal of an Agricultural Yeshiva – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Re'e NEVER EXTREME EXCEPT ISRAEL
Parshat Re'eh
Judaism is against extremism, so how can we understand the seemingly extreme statements found in our sages in favor of living in the Land of Israel and against living in Chutz laAretz? The article deals with the seeming contradiction between the strength of Free-Will and the strength of being influenced by our surroundings.
Ekev DANCE FOR ISRAEL- FOR YOUR BENEFIT
Parshat Eikev
Description: The 7 Haftarot we read after Tisha B'Av ("Shiva D'Nichemta") surely get us excited that they're coming TRUE, and awaken us to yearn, dance & join the return to Zion! The short article also deals with the problems and solutions facing the American Jewish community as discussed at a recent panel, as well as the question why Jews come from America to Israel to help when we face problems, but Israelis don't come to aid Jews in America when they face anti-Semitism.
