Sefer HaChinuch ספר החינוך

The commandment of returning theft: That we were commanded to return the theft intact (Bava Kamma 66a). Meaning to say, that if the thing itself that he robbed is with him and it has not changed in his possession, he is obligated to return it to the one robbed; and not take it for himself, and give its value to the one robbed — as it is stated (Leviticus 5:23), “and return the theft that he robbed.” And we say in Bava Kamma 102a in the chapter [known as] HaGozel Batra, “The Rabbis learned, ‘And return the theft that he robbed’ — what do we learn to say [from] ‘that he robbed?’ That he return the intact item that he robbed.” But if the theft changed in the possession of the robber, he is [only] obligated to repay its value, and he is exempted with that — even though the owners did not forsake it (Bava Kamma 66b). And what is a change that exempts from returning the theft? Like the change that he cannot reverse afterwards to its original state — for example, one who robs wood and burns it or cuts some of it up or digs holes in it; and so [too,] one who robs wool and dyes it or robs spun fabric and makes a garment out of it, and all that is similar to it. But one who robs boards of wood, even if he builds a box out of them — this is not a change that cannot revert to its original state. As behold, it is possible to dismantle them and they will go back [to being] boards as they had been. And therefore, he is obligated to return them intact. And so with all that is similar to this.

The root of the commandment is well-known.

Its laws: For example, that which our Rabbis, may their memory be blessed, said (Sanhedrin 57a): How much would the theft be that obligates the robber in repayment? Any theft that is worth a small coin (perutah). But less than that is not in the category of repayment, even though he has transgressed a Torah prohibition. And as we shall write at length in the negative commandment of “You shall not rob” (Sefer HaChinukh 229), [it is] because Israelites are the children of Avraham, Yitschak and Yaakov — generous men, the children of generous men. And it is a well-known thing that even a poor Israelite will pardon less than the worth of a perutah that was stolen from him, and he will not want to seek it at all. And therefore, they, may their memory be blessed, said (Bava Kamma 105a) that one who robs three bundles, worth three perutah at the time of the theft, and they depreciate in the hand of the robber and became worth two perutah — even though he returned two — he is obligated to return the third; since we judge according to the time of the robbery, and [the] third was already worth a perutah at that time. [If] he stole two that are worth one perutah [together] and he returned one, there is robbery here [but] there is not repayment here.

And the laws of despairing (yiush) and the transfer of domain are many. But the principle of the matter is thus according to that which appears from the Gemara: That any time that the [actual] theft is in the robber’s hands — or even his son’s — and it has not changed, they are obligated according to Torah writ to return it like it is to the one robbed. [And this is] even though we knew with certainty that the one robbed has despaired it; and that is like they said in the Gemara (Bava Metzia 23a), “For example, that people heard him saying, ‘Woe to him for his loss’” — meaning to say, that he concedes in his mind about that thing, that it is already lost from him, and his mind does not rely upon seeing it again. Even if [its value] appreciated in the hand of the robber, the appreciation is to the one who was robbed. And this is [the understanding] of that which is written in the Torah, “and return the theft that he robbed.” And the explanation comes — if it is the same as what he robbed, meaning that it has not changed, he must return it as it is, and even if it appreciated much.

But the Sages ordained (Bava Kamma 94b), as a result of the Ordinance of the Penitents, that anything that appreciates in the hand of the robber after the forsaking be his. And [so] when he comes to return it, he calculates with the robbed one how much it was worth at the time of the robbery; and the robbed one pays him the money of that which it appreciated, and takes it. And the Sages have the power to do this thing, since they may do according to their will in a monetary matter — and even against the commands of the Torah. As it is well-known that what the court makes ownerless is ownerless (Yevamot 89b, Gittin 36b). And therefore if a gentile (to which the Ordinance does not apply) robbed and [the item] appreciated, whether before the forsaking or whether after the forsaking; or if an Israelite robbed it and he sold [it] to a gentile, and the gentile makes [it] appreciate — [the appreciation is for the one robbed. If he sold it (Minchat Yitschak)] before the forsaking, the law of the [purchaser] is like the law of the [robber] — as transfer of domain does not create acquisition without forsaking. But after the forsaking — whether that forsaking was after the theft came to the hand of the purchaser, or when it was still in the hand of the robber — since there was forsaking and a transfer of domain with this theft, the purchaser has acquired the body of the theft. And if that robber that sold it to him is a robber that is not famous, it is completely his; and he is not obligated to return anything to the one robbed. Rather the robbed one should go and sue the robber. But if he is a famous robber, the purchaser is obligated to return the value of the theft to the robbed one, and he sues the robber.

And the laws of the theft as to how far he is to burden himself to return it to its owners is like that which our Rabbis, may their memory be blessed, said (Bava Kamma 103a) that one who robs the worth of a perutah from his fellow is obligated to bring it after him, even to Medea - meaning to say, to a far place. But in order to lighten his burden if the expense [to do this] is great, our Rabbis, may their memory be blessed, said that he [shall] leave it with the court and they know that this money is for x, and they give it to him when he happens by.

And the law of what will be with a beam that he built into a mansion (Gittin 55a); and the law of one who robbed in a settlement and he wants to return it in the wilderness (Bava Kamma 118b); and the law of one who robs and consecrates [it]. And what is the law of one who robs a lamb and it becomes a ram; and the law of the appreciation that comes from inflation — which is not under the Ordinance, but rather goes to the robbed one, as they only ordained that the appreciation be for the robber after the forsaking, in such a case as with shearings or offspring, but not appreciation from inflation; the law of one who overpowers the slave of his fellow and does work with him, or overpowers his ship; the law of one who lives in the courtyard of his fellow without [the latter]’s knowledge; and the rest of its details are elucidated in the final chapters of [Bava] Kamma.

And [it] is practiced in all places and at all times by males and females. And one who transgresses it and robs but does not return has violated this positive commandment, besides the negative commandment that he violated at the time of the robbery. And woe to the one who has it in his hand to “fix the twisted,” and does not fix it before his death (Yoma 85b)!