Q&A: Why Doesn’t a Robber Pay Rent?
Why Doesn’t a Robber Pay Rent?
Question
A robber stole a goblet, drank from it for a whole year, then was caught and returned it. Why doesn’t he pay rent? Where’s the justice?
Answer
In Bava Kamma 97 it is explained that a robber does not pay usage fees. This is unlike someone who used an item without intending to rob it. That is how it is ruled in the Shulchan Arukh, Choshen Mishpat 363 (sections 3 and 5). However, the Rema there writes that if he rented it out to others, then he is indeed obligated to pay the owner. I should note that this whole discussion applies only where the item is normally rented out (available for rent); otherwise even an ordinary unauthorized user is exempt, under the rule of “this one benefited and that one did not lose.”
The commentators disagreed about why this is so. The Sma, Choshen Mishpat 363:3, wrote that in principle he really is obligated to pay, but they exempted him because of the enactment for penitents. On that basis he also explains the Rema’s distinction: the enactment for penitents was not meant to allow him to rent it out to others. But the Shakh there, subsection 8, disagrees and wrote that he is exempt as a matter of basic law, because he has acquisition rights through the robbery, and it is considered his for all purposes except for the obligation to return it. That is apparently in line with the Beit Yosef there, who disagreed with the Rema and held that he is exempt even if he rented it out to others.
I should note that Rabbi Shmuel, in his novellae to Bava Kamma 12:3, wrote a different approach in the name of Rabbi Shimon Shkop: he is exempt from paying for the use because he himself created that use, and therefore its value belongs to him. See there. One can discuss whether this also fits with the Rema’s distinction.
As an aside, I would add that the acquisition rights created by robbery themselves are apparently part of imposing responsibility on the robber, and so they were actually instituted for the benefit of the victim of the robbery. The price is that the victim will not receive payment for the use.
Discussion on Answer
They do have a way. The fact is that they left the duty of returning the item in place even though the robber is the owner. But the model has to be consistent, even at the cost of a certain injustice.
As for Gali Baharav-Miara, that’s true of all sides. Everyone is agenda-driven and juggles interpretations in favor of their own agenda.
Is money considered something available for rent? If someone stole 1,000 shekels, does he at least pay the interest that could be earned permissibly?
Many thanks, and thank you for the quick reply (in the meantime I managed to squeeze in the morning prayer, skipping parts of Pesukei DeZimra other than Barukh She’amar, Ashrei, and Yishtabach so I wouldn’t miss the proper prayer time), and along the way I also managed to add a new word to my meager vocabulary (probably because of my lack of core studies): “consistent.” For that alone it was already all worthwhile, as the Sages said about the fish in the sea, that they rejoice over every additional new drop of rain.
Aharon,
Obviously not. Money is not something available for rent, because it is forbidden to rent out money. That is the prohibition of interest (“payment for waiting”). Changes in the value of things is a discussion in the Talmud itself (and it is ruled that the robber pays according to the value at the time of the robbery, because of the robbery-acquisitions).
Why do we need a model—that is, why do we need consistency? Maybe in Torah-level law they understand there to be a metaphysical model of legal states with rules, which are identified through halakhic intuition and are apparently connected to some extent to the laws of everyday physics, as you wrote in the past, and the Sages too enacted things in a quasi-Torah-level way?
Or maybe the abductive model was created by the Sages as a tool to allow later generations to derive conclusions about new cases on the basis of the model?
The Sages did not create an abductive model. The abduction is being done by my analysis here. They just carried out a kal va-chomer, and that’s it.
I think the rationale is that a legal system is supposed to be consistent; otherwise you can derive from it a thing and its opposite—or really, nothing at all.
I liked the explanation. The Sages have no way to get around the consequences of the robbery-acquisitions (only the bad consequences, of course), which, as you said, were fundamentally enacted for the benefit of the robbery victim, and the price of that is exempting the robber from usage fees—which is really a byproduct that works against the victim. And there’s no way to nail the robber from every direction? (It’s clear to me that Gali Baharav-Miara would manage to untangle this mess and square the circle so as to produce the desirable result: on the one hand giving all the rights to the victim, and on the other imposing all the obligations on the robber, by arranging words and legal slogans. Then again, I remembered what you wrote, that there is also the consideration of the enactment for penitents, so maybe there really is a genuine and calculated fair balance here. Was that your intention in the above answer, Michi?)