The distinction between a ganav and a gazlan is fairly well known. The former in trying to hide his crime pays double the amount stolen whereas the latter consistent in his fear of neither G-d nor man must return that which he stole and is given no further fine or punishment. Somewhat less well known is a third type of thief, one who denies under oath that they have stolen something only to admit later to their crime. In such a case the person must return the object, pay a 25%[1] fine and bring a korban asham, a guilt offering.
This is most strange. One who commits armed robbery and never comes forward to admit their crime but is apprehended and convicted in court pays back that which he stole and nothing more. Yet when a person admits his guilt we add on a 25% penalty and a sacrifice to boot! What happened to the principal of modeh bknas patur, that one who admits to his wrongdoing (before being caught) is exempt from penalties? This seems like a sure way to discourage people from admitting their sin. As we discussed in our last post the rabbis were willing to uproot laws of the Torah and perhaps even allow a thief to retain his ill-gotten gain all in the name of encouraging people to repent. Why not here?
As we will see even regarding this law our Sages introduced exceptions to help one on the path of teshuva. However swearing falsely is considered a most serious sin, one that threatens the proper functioning of our justice system. Perjury is a most heinous crime and must be treated as such. Maimonides in his Laws of Repentance (may I suggest you study a chapter a day during the aseret yemi teshuva finishing the tenth and final chapter on Yom Kippur) classifies swearing falsely as a “heavy sin” in the same league as those actions which carry a death penalty or that of karet, excision from the Jewish people. Yes, teshuva is to be encouraged but swearing falsely in court cannot be countenanced. Hopefully the 25% penalty is enough to serve as a reminder of the importance of honesty – especially in a court of law – but not enough to deter one from repenting,
The seriousness of a false oath is further see by the fact that in such a case one must “go after him even to Madai” (Bava Kamma 103a) in order to make restitution. “He may not return it to his child nor to his messenger.” If one has perjured oneself to try to avoid payment one cannot wait until the victim returns home, one must seek out the victim wherever he may be. And if that means travelling half way around the world so be it.
In making restitution it is not enough just to return the money, nor is it even enough to ask for forgiveness. Reconciliation requires a face-to-face meeting. This is an especially important message for our generation where texting, Facebook, email and a host of other social media I have never heard of have replaced face-to-face discussion[2]. While there is much room for multiple methods of communication nothing can quite replace face-to-face meetings, be it in business, diplomacy or friendship.
Yet despite the Torah’s biblical admonition to return the object directly to the victim our Sages did allow one to “give it to the messenger of the court.” As the Gemara explains “a great enactment they enacted that if the expense [of returning the stolen property] is greater than the amount stolen he pays the principal and 25% to the beit din, brings his guilt offering and he is expiated“. Without this enactment few would be willing to give up the time and expense to travel to Madai to return the stolen goods.
Rabbi Tarfon and Rabbi Akiva debate as to how far we can extend “this great ordinance”, giving people ‘expense relief’ to help on the road to teshuva. Such is the case when one has stolen from one of five people but does not know which one.” Rabbi Tarfon says one need only put $100 “between them and leave” letting the “victims” fight it out. Rabbi Akiva argues “this is not the way to remove oneself from sin. Rather he must pay the stolen amount to each and every one.” (Bav Kamma 103b) It is the view of Rabbi Akiva that we follow, meaning a $100 heist ends up costing five times much.
This debate reflects a fundamental dispute as to the nature of “punishment.” Rabbi Tarfon focuses on the perpetrator of crime. He stole $100 and he must repay $100. On the other hand Rabbi Akiva views crime from the perspective of the victim. It is they who must be compensated for their loss. They had $100 stolen from them and it is the duty of the criminal to ensure that the victim has been compensated. And the only way to do that is by paying each potential victim. Sometimes doing teshuva requires more not less.
[1] The Torah actually tells us to add a fifth. However the Torah’s system is “from the outside” meaning that that the extra payment represent a fifth of the total payment. In modern parlance we do math “from the inside” so what the Torah calls on fifth we call a quarter but they are one and the same. To illustrate when one adds 25% to 100 we get 125 with 25 being one fifth of 125.
[2] The phenomenon of people literally sitting next to each other yet carrying on a conversation by text is – as I and I imagine many in my generation see it - a scary one.