Bava Kamma 058

1:
The Torah recognizes three kinds of theft and the punishment is different for each kind. The most serious kind of theft is the kidnapping of a human being, which is a capital offence. This is how the verses in the Ten Commandments [Exodus 20:13] were understood by the sages:

Since the Torah deals with theft of property elsewhere, as we shall see, and since it is axiomatic that there is no needless repetition in the Torah, the theft that appears in the Ten Commandments was understood according to its context: the other three offences itemized in the verse are capital offences so the command not to steal must also refer to a capital offence, and this is kidnapping. The issue of kidnapping is not a part of the theft which is the subject of our present mishnah. (It is dealt with in Tractate Sanhedrin.)

2:
It would perhaps be useful at this stage to quote in full the verses of the Torah that legislate concerning theft:

Three situations are described here:

1. the theft of an ox or a sheep;
2. the theft of anything else;
3. the circumstances in which a householder is entitled to prevent theft even at the cost of the life of the thief.

3:
The last item in the above list is not really pertinent to our present discussion, so I shall explain it very briefly. If a thief is caught breaking into a house in the dead of night the householder is entitled to prevent the theft even by the application of force, even if the force applied costs the thief his life. The reason is that in pitch darkness the householder has no means available to ascertain the extent of the danger posed by the intruder. But if the thief is caught breaking in during daylight hours he must be apprehended without force that takes his life. This issue is not a part of the theft which is the subject of our present mishnah.

4:
So, for the sake of comprehension let us repeat the verses of the Torah without the interpolation concerning the apprehension of the intruder:

When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep. A thief must make restitution; if he lacks the means, he shall be sold for his theft. But if what he stole (be it ox or ass or sheep)is found alive in his possession,he shall pay double.

Two obvious questions present themselves: why does the Torah differentiate between the theft of an ox or a sheep and the theft of anything else? Furthermore, why does the Torah differentiate between an ox and a sheep? Regarding the first question the Gemara [BK 79b] quotes Rabbi Me'ir:

The ox is used for heavy tasks such as ploughing or grinding, so the theft of the ox entails not only the loss of the value of the ox itself but also the loss of the value of its labour, whereas in the case of a sheep the only loss is the sheep itself.

Regarding the second question the Gemara quotes Rabban Yoḥanan ben-Zakai:

The thief abases himself when stealing a sheep by having to carry it off over his shoulders, whereas he leads an ox by a lead, a lesser derogation of his dignity.

In his commentary of these verses Rabbi Avraham Ibn-Ezra quotes a different reasoning:

5:
Anything which is stolen is punishable by monetary repayment. This is because theft is viewed as causing damage, and all damage involves making good the damage by payment. It is for this reason that there is no such thing as a fine or imprisonment for theft: the repayment is made to the owner of the goods stolen. In rabbinic jurisprudence theft is a kind of tort, not a kind of crime.

To be continued.