Q&A: Robbery and Theft
Robbery and Theft
Question
Hello,
From the plain sense of the passage in Bava Metzia (61), it emerges that the source for the prohibition of theft or robbery is a binyan av (an analogical derivation, a “common denominator”), and the verse “You shall not steal” was written in order to prohibit stealing in order to cause pain, etc., while “You shall not rob” refers to withholding a laborer’s wages and making one violate two prohibitions thereby. But Maimonides, at the beginning of the Laws of Theft, wrote that the source for the prohibition of theft is the verse “You shall not steal,” and he wrote similarly regarding the prohibition of robbery at the beginning of the Laws of Robbery.
And in Lechem Mishneh (there, in the Laws of Theft) he wrote that Maimonides holds that since they expound the verse as referring to stealing in order to cause pain, they then return to the simple meaning by way of an a fortiori inference: “If the verse already prohibited stealing in order to cause pain, then all the more so ordinary theft.” The common denominator only sharpens the meaning of the verse and does not serve as an independent source. But from the continuation of Maimonides’ words there in halakha 2 it appears that stealing in order to cause pain is prohibited only rabbinically (“so that one not accustom himself to such behavior”). Perhaps Maimonides was troubled by Tosafot’s question there (s.v. “They say, yes indeed”): after all, “one does not derive warnings from legal inference,” so how can one derive the prohibition of robbery from other prohibitions by means of the common denominator? And therefore he concluded that stealing in order to cause pain, etc., is only a mere asmachta. But again this does not fit, because this rule was said only regarding prohibitions that carry lashes, since through the derivation we punish the person; but where even after the derivation there would be no liability for lashes, this rule was not said. End quote.
The Rabbi has written in several places that Maimonides, in the second root, understands the rule “one does not derive punishments / warnings from legal inference” as applying to every derivation through the thirteen hermeneutical principles, and not only to an a fortiori inference, unlike Nachmanides and most medieval authorities (Rishonim). He determines that such a derivation cannot serve as the source for a negative prohibition / a punishment. Maimonides sees this rule as an outgrowth of the rule “one does not punish unless one first warns.” A halakha derived through the thirteen hermeneutical principles is not considered written in the Torah, and therefore from his perspective it is as though there is no warning here at all—unlike Nachmanides, who holds that the status of these laws is clearly that of Torah law, and one should not distinguish between these laws and laws explicitly written in the Torah.
1. Did Lechem Mishneh overlook such a basic principle in Maimonides’ method, or am I missing something?
2. Must one who accepts the passage according to its plain sense (unlike Maimonides) say that the Torah-level definition of robbery and theft is more severe—not only depriving another of his money, but even money that is coming to him; and not only utilitarian theft, but even theft in order to cause pain—or not necessarily?
3. According to those who hold that the common denominator removes the refutation and in the end the law is learned from the a fortiori inference itself and not from a binyan av, one could ask “one does not derive warnings from legal inference” even on Nachmanides himself—or does Nachmanides hold like Tosafot that this rule applies only to prohibitions that carry lashes?
4. Why did Maimonides codify as halakha (Hiring 11:2) the Talmud’s statement (Bava Metzia 111a) that one who withholds a laborer’s wages also violates robbery, if that exposition is based on Rava’s common-denominator derivation?
Thank you
Answer
The passage in Sanhedrin 86a states that “You shall not steal” is the source for the prohibition of theft, and many halakhic decisors wrote this as well, and that is indeed the accepted view. Even Rashi on the Torah there wrote this. It is strained to say that all of these refer specifically to stealing in order to cause pain. And in truth, the passage at the beginning of “Which is usury” is very difficult from several angles. After all, the prohibition of robbery is also learned from “You shall not rob,” and that too is the accepted view. The whole passage there seems odd, and it is no wonder that the halakhic decisors do not rule in accordance with it in practice. It is definitely worth checking with the “researchers” what the nature of this passage is.
Beyond that, the rule in Maimonides is that he chooses a source for a prohibition without being committed to the source presented in the words of the Sages, according to whatever seems suitable to him. Several of the authors of methodological rules and commentators on his work wrote this. I was asked about this in recent weeks here on the site.
As you mentioned, it is explicit in Maimonides that his view is against all the medieval authorities (Rishonim): every warning that is derived through exposition is a warning from legal inference and is considered a prohibition of rabbinic origin.
1. The fact that Lechem Mishneh missed this is not difficult at all. Most of his commentators missed it and explained that “words of the Sages” here refers to the source and not to the force of the law. I discussed this at length in my book Ruach HaMishpat and in the article on the second root.
2. I did not understand the question. If one accepts the passage, then one accepts what is written in it, no?
3. The common denominator is not considered an a fortiori inference according to the overwhelming majority of views (I seem to recall Atzmot Yosef on Kiddushin discussing this). It is a binyan av. Nachmanides of course holds like all the other medieval authorities that a warning derived from legal inference creates a Torah prohibition, and only punishments are excluded. That itself is his dispute with Maimonides in the second root. And there he bitterly laments Maimonides’ words, saying: “His palate is sweetness and he is altogether lovely”—except for the second root, because of which perhaps it was not worthwhile to write the whole book.
4. I am not sure he means actual Torah-level negative prohibitions there (perhaps he means one violates the warning of robbery, which is a warning of rabbinic origin). But even if so, it may be said independently of the passage in “Which is usury,” simply based on logic: you are taking money that is not yours. The claim is that when you do not pay his wages, you are holding onto his money—not like a loan, which is given to be spent, but like payment for a purchase, where in several places in Maimonides it appears that the money belongs to the seller even while it is still in the buyer’s possession).