Bava Kamma 094

נושא: BK

BET MIDRASH VIRTUALI

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If someone robs his father and swears to him an oath and [then] the father dies, he must repay the capital and the "added fifth" to his sons or to his brothers. If he does not want to do this, or if he does not have [the wherewithall], he must borrow it and the creditors come and are repaid.

1:
We continue the discussion of the situation of a person who has sworn an oath that he did not receive money, when, in fact, he did, and who later recants and admits the theft.

2:
It will perhaps be easier to understand the situation with which our mishnah is dealing if we suggest a scenario:

David steals from his father Isaac. When Isaac confronts him with his suspicions David swears that he did not take the money. There is nothing more that Isaac can do since no witnesses are forthcoming. Isaac dies with the theft still unsolved. However, David's conscience now pricks him and he wants to make amends. However, the ruling of the Torah is explicit:

When a person sins … through robbery … if he swears falsely … and, realizing his guilt, would restore that which he got through robbery … he shall repay the principal amount and add a fifth part to it. He shall pay it to its owner when
he realizes his guilt. [Leviticus 5:21-24]

And herein lies David's entanglement: he can't fulfill the command of the Torah that "he shall pay it to its owner" for two reasons. Firstly, the original owner is dead; secondly, as Isaac's heir David is now the owner of the money! (Even if David has brothers he is still heir to part of his father's estate.)

3:
Rambam, in his commentary on our mishnah, gives a succinct description of what must happen:

The Torah says that he must "pay it to its owner". Therefore, things can only be made right either by his removing what was stolen from his possession or by being forgiven by the person from whom he stole… Therefore, when his father dies and he is still in possession [of what he stole] and unforgiven by his father, what was stolen must be removed from his possession. If he has a brother from the same father he must give him what he stole, or he must give it to his own sons, in such a way as what was stolen is removed from his possession. If he does not have a brother or sons, or if he did not give what was stolen to his sons, he must use it to repay a debt or his wife's Ketubbah or to charity. In all cases he must declare that this is property stolen from my father. He may not give it as if it were his money.

4:
So, let us return to our scenario. David is in possession of money which he stole from his late father, Isaac. He wants to ease his conscience now that the old man is dead. He can give the money (together with the "added fifth") to his brother or to his sons. However, David does not have a brother nor does he have any sons. So he must use the money to pay off his debts and, in doing so, he must make the declaration: "This is money that I stole from my late father, Isaac."

5:
Concerning the latter part of our mishnah Rabbi Ovadya of Bertinoro explains:

If he does not have the wherewithall – he does not have so much money that he can relinquish his share of the estate.
If he does not want to do this – he does not want to lose his share of the estate.
he must borrow it – from others, and give what was stolen to his brothers in order to fulfill the mitzvah of restoring stolen property.
And the creditors – from whom the robber borrowed [as above].
Come and are repaid – from the robber's share in what was stolen.

In the rest of his commentary Rabbi Ovadya follows Rambam's explanation.

6:
Other commentators understand the text of our mishnah slightly differently. They would render it thus:

He must repay the capital and the "added fifth" to his father's sons or to his father's brothers.

In other words, he must make restoration (including the "added fifth" and the declaration of guilt) to his own brother's or to his own uncles. This is, presumably, to ensure that the stolen property would not remain part of his estate to be inherited by his own sons.

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