This week’s parasha describes how Avraham Avinu turned down the King of Sodom’s offer for a share in the war-loot after rescuing the local residents. Why did he refuse it? What was wrong with the loot? This week’s article will focus on fencing, or knowingly dealing in stolen goods. Is one permitted to make a profit from stolen goods? Is buying suspicious merchandise permitted? Can goods be bought from the back of a truck, if the driver’s honesty is unknown? What can be done if one purchased an object in good faith, only later to discover that it was stolen – can the owner retrieve his object? How can the buyer salvage his money?
This week’s parasha tells of Avraham Avinu who did not turn down the Egyptian pharaoh’s offer of gifts, yet turned down the Sodomite king’s offer of a share in the war booty. Avraham even raised his hand in oath on the matter: “And Avram said to the king of Sodom, ‘I raise my hand to the Lord, the Most High G-d, Who possesses heaven and earth. Neither from a thread to a shoe strap, nor will I take from whatever is yours, that you should not say, ‘I have made Avram wealthy’” (Bereshis 14:22-23).
The Gemara (Chulin 89a) writes that in merit of refusing the Sodomite king’s offer of war booty, his descendants merited two special mitzvos – the strap of tefillin and the sky-blue string in the tzitzits. The Gemara expounds on these mitzvos – of the tefillin it is written: “Then all the peoples of the earth will see that the name of the Lord is called upon you, and they will fear you” (Devarim 28:10), and the sky-blue string serves as a constant reminder of the heavenly Throne of Glory.
Why was Avraham’s refusal so praiseworthy? He didn’t refuse Pharaoh and Avimelech’s gifts, and they were not exactly righteous individuals. Why was refusing the Sodomite’s loot outstanding?
Indeed, the loot rightfully belonged to Avraham – he had rescued it along with the residents of the city against all odds. The king of Sodom was right in offering it to Avraham – he had saved him and his city from death or slavery.
Rashi (Chulin, 89a) explains that Avraham did not want to enjoy stolen goods. Pharaoh and Avimelech, while neither righteous, didn’t acquire their riches through theft. Sodom, and their king, on the other hand, made their income dishonestly. Of this kind of wealth Avraham Avinu wanted no part.
Furthermore, the Gemara writes: “Rabbi Abba says: Difficult is the return of theft that has been consumed, as even the perfectly righteous are unable to return it, as it is stated: “That I will not take a thread nor a shoe strap nor anything that is yours…except only that which the young men have eaten with me” (Bereshis 14:23–24). Even the righteous Avraham was unable to return that which the young men had already consumed — paying the king of Sodom for it would be ridiculous because he should rightfully be paying to feed people on a mission to save his own life, however, since the money didn’t belong to him but to the wayfarers from whom it was stolen when they passed through Sodom, returning it was impossible.
This issue raises several questions. Can one buy stolen merchandise or that which is suspected to be stolen? Who does stolen merchandise belong to?
Buying stolen merchandise can violate two distinct prohibitions:
- When the thief is not the halachic owner of the merchandise, and consequentially even after buying it, it will not be the halacha property of the buyer (see below when this is the case), the one who bought such merchandise violates the prohibition of gezel (theft) for every single moment that he holds onto the merchandise.
This occurs when the owner did not give up retrieving his stolen item. Since the thief doesn’t acquire halachic ownership of it, it belongs to the original owner. Therefore, the buyer is obligated to return the stolen object to its original owner (just as is the halacha of returning lost items to the rightful owners) and the buyer cannot use the object.
However, where is it clear that the owner has given up hope of ever retrieving his possession, with his purchase the buyer gains halachic ownership. The thief owes the owner only the value of the merchandise, not the object itself. Buying it still remains prohibited because it encourages theft, but post facto, or where the buyer was unaware of the status of the product, he is not obligated to return the object to the original owner.
2) The prohibition to assist criminal behavior – one who buys stolen merchandise is responsible for encouraging theft. In this context, the Gemara (Gitin 45a; Kiddushin 56b; Erchin 30a) uses the proverb, “It is not the mouse which steals, it is the hole that steals.” If the mouse hadn’t had a hole to store his stolen grain, he wouldn’t steal more than he needed for himself. If a thief does not have a market for his stolen goods he would not steal. Therefore, the Gemara reasons, it is necessary to fine the buyer, or whoever is currently holding the stolen goods, to prevent future theft.
The Shulchan Aruch (Choshen Mishpat 356:1) rules that buying stolen goods from a thief is a grave sin because with that he is assisting the thief in his criminal behavior.
The Sma (Choshen Mishpat 356:2) wonders why that is true – the thief can take the merchandise to a faraway locale where nobody knows him and sell it there – why is buying it from him considered helping him commit a crime? He answers that giving him an easy way to rid himself of the goods encourages him to steal again in the future. If he had to travel and work hard to get rid of his stolen goods he wouldn’t steal so fast again in the future.
The Sma adds that while a single person who refuses to buy from a thief will not deter him from further theft, an entire population that refuses to buy will cause him to rethink his choice of profession.
The Hole that Steals
As proof for Chazal’s ruling, we can take a look at the recent decline in theft of Torah scrolls. While in the past many Sifrei Torah, valued in tens of thousands of dollars, were stolen, ever since a scanned, personalized ID was created for every Torah scroll and a stolen scroll could easily be detected, thieves were caught and convicted quickly and stolen scrolls because impossible to sell. The ‘hole’ was sealed, and Torah scrolls became unattractive for thieves.
Buying Merchandise of Unknown Origin
The Taz (Choshen Mishpat 356:1) adds that one should not buy anything of unknown origin from a thief. This is also the opinions of the Shulchan Aruch Harav (Choshen Mishpat, Gzeila U’Gneiva, 10) and Aruch Hashulchan (Choshen Mishpat 356:1). See below the halacha of buying merchandise from unknown people where the circumstances seem to indicate the merchandise is stolen.
Buying From a Suspect
Buying merchandise when the circumstances indicate the merchandise is stolen is also prohibited. An example is buying milk and wool from a shepherd, since he most probably stole it from the owner. This halacha is true even where we have no specific knowledge about the shepherd’s honesty.
These halachos are spelled out clearly in the Shulchan Aruch (Choshen Mishpat 358), but since these halachos play out differently nowadays, we are not citing the specific cases that are described. It will suffice to mention that buying merchandise from the back of a truck where the truck driver may be stealing some of the merchandise he is transporting, or where this is a known way of selling stolen merchandise, may be prohibited and should before one should ask a competent rabbi for ruling.
Assisting Fraudulent Activity
The Rama (Choshen Mishpat 356:1) adds that the prohibition of assisting theft includes assisting in any fraudulent activity.
The Rivash (chapter 108), for example, was presented an interesting question:
A poor woman remarried a wealthy man and ran his business. Since she wanted to give all his assets to her eldest son from her first marriage and leave nothing for her husband’s sons or their children from their joint marriage, she slowly but steadily stole merchandise from her husband’s warehouses and allowed her mother or eldest son sell it. After a while, her husband suspected she was responsible for the losses and asked for the keys to the warehouses so he could oversee what was going on. Before handing them over, the wife ran to the locksmith to duplicate the key, asking him to keep her order a secret. The locksmith agreed and asked for a high price for the job. The Rivash ruled that the locksmith should have understood that the secretive duplication of the key was related to criminal behavior and should have informed the husband, especially in light of her husband’s constant complains about her behavior. Following his ruling, the local Beis Din fined the locksmith for taking part in criminal behavior.
From this poskim deduce (Beis Yosef, Choshen Mishpat 356; Sma, footnote 3; and others) that Beis Din is obligated to fine a person who assists in anything that should have been assumed as intended for unscrupulous activity. Obviously, assisting in outright criminal behavior is forbidden.
Enjoying Stolen Merchandise
Borrowing or otherwise enjoying a stolen object is forbidden. Therefore, one cannot be hosted by a thief. If, however, some of his income is known to be made through honest business, and the particular object he wants to use is of unknown origin, enjoying it is permitted due to the doubt (Shulchan Aruch, Choshen Mishpat 369:2-3).
Buying in Good Faith
The following question was presented:
A man bought a cell phone from a cell-phone dealership under the assumption that the phone was new. After powering it he discovered the phone had a list of contacts, one of them which was ‘Abba’. When he dialed the number, the person at the other end of the line informed the buyer that the phone belonged to his son and the phone was stolen. The person demands the phone back, but the buyer, who spent good money, claimed he didn’t deserve to lose his payment.
In order to answer this question, we much first define the halachic status of the phone. The Shulchan Aruch (Choshen Mishpat 356:3) writes that a stolen object becomes the property of the thief only when the original owner gives up on expecting to finding his possession. When that transpires the object changes ownership – i.e. it enters the thief’s domain. As long as the original owner didn’t give up on finding his stolen object, there is no way someone can achieve halachic ownership of the object. The second condition that is required is that the object changes domain after the original owner gave up on retrieving his stolen object.
The following example illustrates these rules:
A cup was stolen from Reuven’s house on Sunday. On that same day he sold the cup to Shimon. On Monday, Reuven realized he has no way of recovering his stolen cup and gave up on retrieving it. Since the cup was in Shimon’s domain before Reuven gave up on retrieving it, Shimon can never acquire ownership on the cup. However, if he sells it on Tuesday to Levi, Levi indeed acquires ownership of the cup since it changed domains after Reuven had given up.
The thief himself can never acquire ownership even if the owner gave up on finding his stolen object immediately after the theft because it came into his domain before the owner had given up on finding it. However, the first buyer, in this case, will acquire ownership.
The Rishonim are dispute the nature of the buyer’s ownership. According to the Rambam the original owner still owns his object and the buyer’s ownership only allows for him to pay for the object instead of returning the object itself, should the original owner demand it. The Shulchan Aruch follows this ruling (Choshen Mishpat 356:3). However, Ri (mentioned in the Tur, Choshen Mishpat 353:5) maintains that the object belongs to the buyer for all purposes, and he has no obligation towards the original owner. It is the thief who must pay the original owner the value of his theft. The Rama follows this ruling (ibid).
Buying Stolen Goods Before Despair
In light of the above, the Shulchan Aruch rules (Choshen Mishpat 356:2) that as long as the original owner didn’t give up hope of recovering his goods, he can demand the return of his object, even from the buyer. However, since this will cause people to avoid shopping out of fear their purchase may turn out to be stolen — even if it passed through many hands on the way and harm market dynamics, Chazal instituted a rabbinical provision called takanas hashuk. This provision protects buyers from liability for buying stolen items, while at the same time enabling the original owner to recover his stolen object. According to takanas hashuk the owner must compensate the buyer for his loss. The sum he must pay depends solely on the sum the buyer paid, even if the buyer paid more or less than the item’s market value. This provision does not, in any way obligate the original owner to buy the object from the buyer – it only enables the original owner to retrieve his stolen goods, and the buyer to recoup his loss.
When takanas hashuk is invoked, the owner can then turn around and demand the thief repay him for what he was obligated to pay the buyer.
If the buyer bought the object from a person whom he should have suspected as a thief, his purchase was not made in good faith and takans hashuk is not invoked. In this case, the original owner can take his object without compensating the buyer for his loss (Shulchan Aruch Choshen Mishpat 356:2, see Shach and Taz). The Maharil Diskin (Psakim 227) writes that every halachically forbidden purchase is not protected under takanas hashuk (such as purchasing from a person that should be suspected as a shoplifter, or goods that should be suspected as stolen).
Buying After Despair
Once the original owner gives up on retrieving his items, he has no claim towards them. According to the Tosafos the owner can demand nothing from the buyer, only from the thief.
According to the Rambam, however, although the owner cannot demand the stolen object from the buyer, he can sometimes demand payment for the object. Takanas hashuk, however, forces owner to uphold the buyer’s rights and make sure he is not harmed by his purchase. There are two scenarios in which the owner can demand payment from the buyer:
According to the Rama (Choshen Mishpat 356:3) if the buyer bought the stolen for $50 when the market value is 100$, the owner can demand the buyer to pay him the $50 he saved. However, if the buyer paid the full price or more, he is not obligated to pay anything more.
If the buyer bought something from one who us known as a thief whose sales are not protected under takanas hashuk, the buyer has to pay the owner the full price of the stolen object, independent of the price he paid for it (Shulchan Aruch, Choshen Mishpat 356:3).