Kedoshim: Embezzlement- From a Penny to a Ponzi

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The Journal of Talmudic Law & Finance
This week's journal is dedicated in memory of שלוה ראכיל בת ר' ישראל מנחם  Halperin ע"ה יאר צייט ל' ניסן May the Torah studied through this publication be an everlasting zechus for her Neshama. Amen.


Embezzlement: From a Penny to a Ponzi 


This week’s Parsha discusses many mitzvos which govern the relationship between man and his fellow man. One of these mitzvos is the prohibition of stealing.Parshas Kedoshim Feature Shiur: Embezzlement: From a Penny to a Ponzi Issues relating to theft and stealing arise frequently in the mitzvos between man and his fellow man.


This week’s journal will focus on some of the practical and lesser-known halachos of theft.

  Click here for this week’s Featured Audio Shiur by Rav Dovid Grossman:

Embezzlement: From a Penny to a Ponzi  


Choshen Mishpat Chiddush


It is considered to be gezeila, stealing, to take anything that belongs to someone else if it is likely that they would be upset to discover that the item has been taken. This is true even if the item has very little value. Nevertheless, the Shach (in CM 358) is of the opinion that if it is known that the owner of the item wouldn’t mind if it was taken, then it is permitted to do so. There is much discussion among the later authorities as to whether or not the halacha is in accordance with this view. Nevertheless, most poskim are of the opinion that if the item is something that does not become worn out or diminished through use then one may follow the view of the Shach. See Shulchan Aruch Harav (aveida par. 5 and Shomrim par. 5) who makes this distinction between different types of items.


Parsha Perspectives from the Archives

Parshas Kedoshim: Our Duties Vs. Their Rights


Anecdotes of the Ethics 


“Well, Your Honor,” said the irate baker to the judge, “as I said, I have been purchasing butter from this farmer on a daily basis for months, and recently I began noticing that the blocks of butter that he has been selling me every day looked smaller than it should be. So a few days ago, I weighed the butter when I got home, and I discovered the truth! The “1 kilo” block of butter weighed actually only 900 grams! The next day, I bought another kilo of butter, and again it was underweight. This man has been swindling me for who knows how long!”

In this Issue:

Anecdotes of Ethics


Parsha Perspectives from the Archives: Our Duties Vs. Their Rights


Ask the Dayan: The Little Monkey who Ate Bananas

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OU Choshen Mishpat Series  

The judge turned to the farmer with a stern look.


“What weights do you use on your scales?” he asked.


“I don’t own any weights,” replied the farmer.


“You don’t have any weights?” asked the judge. “So how do you know how much butter to give your customers?”


“It’s simple,” he replied. “Every day I buy a 1 kilo loaf of bread from this baker, and then when I sell him the butter, I simply put his loaf on one side of the scales and measure him some butter that balances exactly the bread. That way I know exactly how much butter is a kilo.”


There are a number of lessons to be learned from this story, but let us consider just one of them. People are often quick to criticize others, and to notice their wrongdoings. The slightest fault in others’ behavior is immediately pounced upon – and yet often the accuser can be just as guilty of a similar type of wrongdoing, but he simply doesn’t see it that way.


Gezel - stealing – is a most serious offense. Chazal tell us that, “[If one has] a box full of sins, which is the one [sin] that accuses before all? Theft!” (Yalkut Shimoni, Vayikra, 660).  “For people sin with idol worship, immorality and murder, yet gezel [i.e. theft] is more severe than all of them” (ibid). The wicked generation that perished in the Flood at the time of Noach transgressed some of the most severe offenses, yet the one that sealed their fate was gezel (Sanhedrin, 108). And Chazal tell us that “One who steals even a penny from his fellow man is considered to have taken his life” (Bava Kama, 119b).


Now, most of us do not transgress the sin of theft in the classic sense. We don’t rob banks or steal other people’s property. Nevertheless, the Torah demands a lot more under the rubric of gezel. Don’t flat-out steal, but also don’t cheat, lie, or trick. Don’t force a person to sell his property, don’t hold back wages, don’t encroach on another’s livelihood, and don’t overcharge or underpay. Keep your word, honor your commitments, and deal fairly and with integrity to all. And don’t use the boss’s phone without his permission, even for just a moment!


Mesillas Yeshorim (Chapter 11) teaches an important lesson, “Just as the desire for money is great, so too the opportunities for stumbling in this area are numerous. To be genuinely uncontaminated from gezel, one needs to employ much assessment and scrutiny. But one who succeeds in cleansing himself from any trace of gezel has achieved a very high spiritual level.” The Mesillas Yeshorim is telling us that good intentions by themselves are not enough. Real vigilance regarding the specifics of the Halacha is needed or else one can easily transgress direct Torah prohibitions of gezel.


Ask the Dayan 


The Little Monkey Who Ate Bananas 




A delivery of fruit and vegetables was made to the home of Family Silberberg. Little Avremi (age 4) and Moishi (age 3) decided to sample the goods. Avremi is a real monkey; he ate three bananas! Moishi creatively converted the tomatoes into a puree. Worse still, when Mrs. Silberberg took a look at the delivered goods she realized that they had been delivered to the wrong address. She phoned the fruit store to advise them to collect the goods, but is not sure whether there is any liability to pay for the consumed goods. If the children have money of their own are they liable to pay? Is her husband liable to pay? Do the boys have to pay when they reach adulthood?




The Gemoro (Bovo Kama, 112a) discusses a case in which a father passed away, leaving a cow to his sons. The sons had the cow slaughtered and ate the meat. They then discovered that this cow did not actually belong to their late father. He had only borrowed it!

The law is that the sons must pay the cow’s owner for the cow that they slaughtered and ate.

However, the reason that they must pay is not because they damaged another’s property. The sons were under the reasonable impression that this cow was part of their late father’s estate. Their resultant destruction of another person’s cow is therefore deemed causing damage through circumstances beyond their control (mazik b’oness) for which there is no liability to pay (see Tosafos, (Bovo Kamo (28b).


Nonetheless, quite apart from the damage that they did, they also enjoyed a good meal on someone else’s account! They must therefore pay the owner the value of the benefit derived from the meat.


(There is a difference in the evaluation of liability between paying for damage done and paying for benefit derived. Damages are evaluated as the value of the object damaged, which in our case would be the full value of the live cow. Benefit derived, however, is usually considerably less, because it is evaluated as how much the person who benefitted would be willing to pay for this benefit, which in this case is assumed to be the cheapest rate that one could get hold of a similar meaty meal.)


The Nesivos Hamishpat (232:5) therefore points out that had the sons destroyed the cow, without deriving any benefit, they would have been completely exempt from payment.


To return to our story of the tomatoes and the bananas, it would therefore appear that even if an adult had accidentally eaten and damaged another person’s food under similar circumstances, he would be exempt from paying for the damage and would only have to pay for the benefit derived from eating the food. So there would be no compensation for the squashed tomatoes, but whoever ate the bananas thinking that they were his would have to pay for the benefit derived.


In fact, there is an additional reason to exempt the boys in our case.


The Mishna in Bovo Kama (87a) informs us that a minor is not responsible for any damage that he causes. The reason for this is that a young child is not considered to have a sufficiently developed mindset to make him responsible for any of his actions. It therefore follows that even when he reaches adulthood, he will remain exempt from any damages that he caused in his childhood, and indeed so rules the Shulchan Aruch, (Choshen Mishpot, 349:3, 424:8)


As for the parents, according to the Halachah a parent bears no financial liability for damage done by his children.


So Moishi, who crushed the tomatoes, is exempt from liability for damage that he caused to the tomatoes, even if he had known that they didn’t belong to him, because he is a minor.

But what about Avremi? He didn’t just cause damage, he actually benefitted from the bananas that he ate. Perhaps he is liable to pay at least for the benefit derived?


Shvus Yaakov (Vol. 1, No. 177) understands that there is no reason why a minor should not have to pay for benefit that he derives from others. He is exempt from damages that he causes because he is considered to have acted without intent, but if he benefits from another he would have to pay because with regard to this kind of liability intent if not a factor at all.


Shvus Yaakov’s source for this ruling is the case (Shulchan Aruch 335:15) of an adult lending money to an orphan to buy food, with the intention of collecting the money when the child reaches adulthood and has money of his own. Our Sages gave the lender the right to reclaim the loan. The reason for this, says the Shvus Yaakov, is because a minor who benefits from another is obliged to pay for that benefit.


In fact, though, the Shulchan Aruch itself quotes other opinions regarding the orphan who borrowed money. Some say that only if the child is an orphan and needs the loan to survive is there an obligation to return a loan that was lent to him, but otherwise one who loans a minor cannot reclaim the money even when the child grows up.


In that case it would appear that the fact that a minor derives benefit from another’s property is not actually grounds for obliging him to pay for the benefit.


To sum up, then, Moishi, who created the tomato puree, would be exempt from paying for the damage that he caused, but whether Avremi must pay for the benefit derived from the bananas appears to be a matter of debate.


One final point. Although a minor need not pay for damage that he caused even when he subsequently grows up, there are sources that indicate that there is a chiyuv latzeis yedei shomayim – a “moral” obligation (alternatively, a requirement lifnim mishuras hadin – to go beyond the letter of the law) to make amends to the damaged party when he has grown up (see Shvus Yaakov ibid, Mishneh Berurah, 343:9)


This was written by  Rabbi Yoel Yosef Moore Shlit”a and is being reprinted with his permission. To see more of his articles or for any questions you can email to:  


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