he Mishnah discussed the case of one who is unlawfully in possession of another person’s property and takes an oath denying his possession of it1. Such cases include robbery, withheld wages, a collateral to a loan or a lost item. We have learnt that if the person later admits of his own accord (and not forced to by witnesses) then he must return the withheld item as well as an additional payment of 25% of item’s value (chomesh). He is also obligated to bring a korban asham. The source for this law was in last week’s Parasha (Vayikra 5:20-26).
The Mishnah (9:5) explains that if the object in question has a value of at least a perutah, then the robber must take the item and return it personally to the original owner, even if it requires him to cover a great distance. By extension, the Rambam (Gezeila 7:11) explains that if it is less than the value of a perutah then the gazlan holds on to it, till the original owner collects it.
The next Mishnah (9:6) deals with various cases where the principal and/or chomesh was partially paid or forgone by the original owner. The Mishnah explains which cases impact on the gazlan’s obligation to deliver the stolen items. One case listed is if the original owner forwent both the principal amount and chomesh aside from less than a perutah of the principal amount. The Mishnah rules that in that case the robber would not be required to deliver the remaining amount.
The Tosfot (104b s.v. “chutz”) question the Mishnah’s necessity of teach this case. As cited above, the previous Mishnah already taught that if the stolen item was valued at less than a perutah, the gazlan would not be required to deliver it. What is the novelty of this Mishnah?
The Tosfot Yom Tov suggests that since the first Mishnah did not state what the law was for less than the value a perutah, one might have thought that due to it being an insignificant amount, it need not be paid back. The second Mishnah however teaches that it need not be delivered. Recalling the Rambam cited above, the Mishnah is however teaching that if the owner came to collected it, the gazlan must return it. As the Rambam teaches (Gezeila 1:2) robbery of even the smallest amount is biblically forbidden.
The Tosfot R’ Akiva Eiger however suggests that the case in the second Mishnah is different. The principle amount was initially more than a sha’ve perutah. Unlike the first Mishnah, the gazlan was obligated to deliver the item back to the owner. Even though the value of what needs to be return has decreased, one might have thought that the obligation to deliver it remains. The Mishnah teaches that this is not the case.2
R’ Yehonatan also explains that the case in the second Mishnah is different. In that case the galzan had not paid anything and the owner forwent the bulk of the financial obligation. One might have thought that since he is still retaining some of the original amount and the deduction to less than a perutah’s worth came with ease and no financial loss to the gazlan he would still be required to return it. The second Mishnah teaches that since it nevertheless less than a perutah, the gazlan is not required to deliver it.
1 The Tosfot (103a) explain that one is only required to take an oath if they partially admit to the claim; if at least the claim was shtei kesef and he admitted to a perutah. Our case must be where the gazlan made an oath voluntarily or it was a case of modeh be’miktzat.
2 This is also the opinion of the Rosh as cited by the Shita Mekubetzet
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