Question:
In my youth I was irreligious, and on one occasion I, together with a friend of mine, stole from a warehouse two doors. Since then I have done Teshuvah, and I realize that I must repay the theft. My former friend, however, is still irreligious and has no desire to repay anything. Must I return to the owner payment for both doors, or is it sufficient that I pay only for my share in the heist?
Answer:
Amnesty for career thieves
The Talmud (Bava Kama 94b) relates a story of a serial thief who decided to repent and return all the property that he had stolen over the years. His wife said to him, “”Fool! If you repent you will have to give back even the belt you are wearing [because everything you own is stolen property]!” On considering this, he decided not to repent. As a consequence of this story, the Rabbis, who wanted to encourage thieves to repent decided to remove this possible impediment and instituted an amnesty for a thief who voluntarily comes forward to repent. He need not repay everything that he has stolen,
However, the Shulchan Aruch (Choshen Mishpot 366:6) rules that this applies only if he repents of his own volition. However, if he gets caught, this dispensation is superfluous and he must pay back everything that he has ever stolen. Further, this applies only to a serial thief who will find it well-nigh impossible to pay back everything.
In our case, then, the penitent thief must repay the theft.
Paying for his partner in crime
Chasam Sofer (Responsa, vol.5 chapter 133) points out that if one thief actually carried out the act of stealing, and then passed the stolen property to the other, then either one can be made to pay the entire sum – the first because he actually stole everything himself, and the second too because he should have given it back to the owner when he had it in his hands.
What if they both carried out the stolen property together?
The Talmud (Bava Metzia 8a) rules that two thieves who steal together are both obliged to pay. If only one repents, however, the Talmud Yerushalmi (Bava Kama 10:1 quoting Tosefta Bava Kama 10) rules that he be required to pay only for his part of the theft.
Shvus Yaakov (Vol.1 chapter 178), however, rules that each one can be made to pay for his fellow thief’s share as well. He compares this to a case of two people who take out a joint loan. Each one owes his half of the loan, but he also guarantees the other half of his fellow borrower in the event that the lender cannot collect from him. So too two people who steal together assume not only responsibility for their own share but also for their fellow thief’s share.
He brings an interesting proof to this from a Medrash (Bereishis Rabbah 85) which relates that Yehudah advised his brothers (after they had sold Yosef into slavery) that they should split up – “As long as we are together the “bill of debt” against us can be claimed.” Said The Almighty, “If ten people steal together, cannot one made to pay for all of them?” (The tragedies that Yehudah suffered in the next chapter of the Torah is interpreted by the Medrash to be an accounting for the sin of selling Yosef.)
It is clear from the Medrash, argues the Shvus Yaakov that any one of a group of thieves can be held accountable for the joint act of all of them.
As for the Yerushalmi quoted earlier that rules that he must return only his part of the theft, Shvus Yaakov interprets to be discussing a thief who repents of his own accord. Although he is granted no amnesty for his share in the crime unless he is a serial thief, as noted earlier, nonetheless, if after all he initiates his own repentance, he is granted a lesser amnesty, that he need only return his own share of the theft and not his fellow thief’s share.
However, Ateres Zvi (reponsum printed at the end of the book) and Chavos Yair (Chapter 212) disagree, and understand the Yerushalmi to absolve the thief of his fellow thief’s share in all cases, not only where he has repented of his own volition. Shvus Yaakov’s comparison to two borrowers, who accept mutual responsibility for each other’s share of the loan, is not precise, claims Ateres Zvi, because in that case, by virtue of the fact that they borrowed the money together, there is an implicit agreement with the lender that they will each take responsibility for the other’s share of the loan. However, if two people steal together, there is obviously no intended commitment on behalf of the two thieves to the owner to assume responsibility for each other’s crime, and therefore each one need only pay for his own crime and not his friend’s.
Chasam Sofer (ibid) concurs with this opinion that absolves one thief of responsibility for his partner’s share in the crime.
Conclusion
In our case, then, assuming that the two thieves carried out the stolen doors together, the penitent thief need only pay for his part in the crime. Most authorities do not require him to pay for his fellow thief’s part in the crime, and even Shvus Yaakov, who does require him to pay, agrees that in the event that the thief is not caught but rather repents of his own accord he is granted an amnesty from responsibility for his partner’s part of the crime.
We are intending to give general guidelines only; since every circumstance is unique, actual cases should be referred to a Dayan or Beis Din.
