Q&A: Modes of Acquisition in Theft
Modes of Acquisition in Theft
Question
I saw in one of the responsa (“Acquisition through Change by a Thief,” 3 years ago) that the Rabbi wrote that acquisition through change is what makes liability for unavoidable accidents possible (and one could even understand from his words there that the desire to impose liability for unavoidable accidents is what led to the innovation of the theft-related modes of acquisition), and I was puzzled, since he becomes liable for unavoidable accidents even before he acquires the stolen item.
“Regarding the question itself, you could ask about the whole law of a thief’s modes of acquisition in general. The Torah transfers the object to the thief for various reasons (so that he will be liable for unavoidable accidents). Why not simply make him liable for unavoidable accidents without giving him acquisition? Because Jewish law works with fixed legal patterns, and liability for unavoidable accidents requires ownership” (from the Rabbi’s words there).
Perhaps the Rabbi meant the concept of “modes of acquisition in theft” found among the later authorities (Acharonim), who direct their discussion to the exemption from benefit-payments for use of the stolen object (for example: one who forcibly seizes another person’s ship—if he went down to it with intent to steal, he is liable only for depreciation payments), and the like.
Answer
Simply speaking, there is no liability for unavoidable accidents before the acquisition. He is simply obligated to return it under the laws of theft. But one might have thought to exempt him when an unavoidable accident happened to the animal, as with a guardian. For that, there are the theft-related modes of acquisition, and then it is his property that was lost through an unavoidable accident, not the property of the robbery victim.
Discussion on Answer
As far as I know, no. Maybe there are views like that…
Bumping this discussion again, sorry for the delay.
The plain sense of the Talmudic text in Bava Kamma 56b is as I wrote. Tosafot on Bava Kamma 56b, s.v. “Peshita,” writes explicitly that the thief becomes liable for unavoidable accidents from the moment of lifting, and not from the time he acquires the stolen object (through despair and some sort of change).
That also seems to follow (though this proof is not absolute, unlike the previous one) from the Talmudic text in Bava Kamma 106a, which obligates a person who stole and swore that he was an unpaid or paid guardian. The Talmudic text there explains that he is liable for his oath because by means of his oath he exempts himself from payment in a case of unavoidable accident (where, in the plain sense of things, we are not speaking about a person who made a change in the stolen item; moreover, it seems that if he had already acquired the very body of the stolen item through change, the Talmudic text would not have explained the liability in this way).
On that same page it is also brought that one who falsely denies holding a deposit is liable for unavoidable accidents because he is like a thief, and there it is very difficult to say that the Talmudic text holds that the denial turns the stolen item into something in his domain the way despair and change do.
And it also seems, in the most straightforward way from logic itself (which connects to the last proof), that a thief should not be treated more leniently than a borrower. So there is no reason to wait until the time when the thief makes a change in the object; from the moment the object is with him, he should already be liable for unavoidable accidents.
I hope I’m not overdoing it. Thanks in advance.
There is certainly room to distinguish it from a borrower, since with a borrower there is a contract that creates that obligation. The borrower receives the item for his use and therefore takes on liability for unavoidable accidents.
It’s hard for me to get into this right now, but that is the simple understanding (see Tosafot, Ketubot 31b, s.v. “and in the owner’s domain,” and s.v. “and in the public domain,” where they write this explicitly). See also Pri Moshe (Theft and Robbery), sec. 1.
Just on the level of logic—the right of use exists for a thief too, not only for a borrower (the Talmudic text says that a thief is not liable for benefit-payments from the stolen object—I wrote sources for this above).
From the sources the Rabbi brought, it comes out as I wrote. It may be that I wasn’t clear enough in my writing, so I’ll repeat briefly to make sure I understood the Rabbi’s words correctly (I’d be glad if the Rabbi could confirm this)—
As I understand it, liability for unavoidable accidents in a case of theft applies already from the time of the act of theft, meaning from the time of lifting, pulling, and the like, whereas despair and change of domain / an act of change do not function as what creates liability for unavoidable accidents, but rather as what transfers the very body of the stolen item into the owner’s domain. There is no connection between despair and change of domain and liability for unavoidable accidents, since that liability precedes them.
Again, thank you for the effort.
Those sources imply the opposite. They are talking about an acquisition in order to become liable for unavoidable accidents.
But the acquisition is the acquisition of lifting, not the full acquisition of despair and change. The acquisition that helps regarding unavoidable accidents is not the acquisition that helps regarding gaining ownership of the object. Even though there is an acquisition through lifting, the original owner can demand the stolen object back and the thief cannot refuse, since that acquisition does not help him acquire the very body of the object. Acquisition of the body of the object is done only through despair and change, not through lifting.
For otherwise there would be no need at all for acquisition through despair and change of domain, since acquisition through lifting would always come first.
To the best of my knowledge, the modes of acquisition in theft that treat the stolen property as belonging to the thief regarding liability for unavoidable accidents are not an actual acquisition through despair plus change, but rather ordinary acts of acquisition such as pulling or lifting up (and courtyard acquisition according to some views), and so on. The questioner there asked the Rabbi about the type of absolute acquisition that turns the object into the thief’s and makes him liable only for the value of the theft, whereas the Rabbi answered that the purpose of this acquisition is to make him liable for unavoidable accidents.