Q&A: A Commandment Fulfilled Through a Transgression in Civil Law
A Commandment Fulfilled Through a Transgression in Civil Law
Question
Reuven stole one hundred zuz from Shimon. Afterward he wants to fulfill the positive commandment, “and he shall return the stolen item.” But in order to return the hundred zuz to Shimon, he steals another hundred zuz from Levi and gives it to Shimon.
Can we say in this case that he did not fulfill the positive commandment—and therefore is lashed for the prohibition of theft—since this is a commandment fulfilled through a transgression? Or perhaps, since this is a monetary obligation, it does not matter whether it was done through a transgression or not, so long as Shimon got his hundred zuz back (that is, this is a matter of civil law, not ritual law). It also seems that the question applies only according to the view that distinguishes between “he fulfilled it / he did not fulfill it,” because according to the view of “he nullified it / he did not nullify it,” here he certainly did not nullify it, since he returned the hundred zuz to Shimon!
What do you say?
(The question, though not in the wording I wrote here, appears in the introduction to the pamphlet Eighteen Matters as a question addressed to the Avnei Nezer of blessed memory.)
Answer
In my opinion there is no doubt that this is a commandment fulfilled through a transgression. I don’t see any question here. In my view this is also unrelated to “he fulfilled it / he did not fulfill it.”
Discussion on Answer
This should be considered in light of the Minchat Chinukh’s comments about someone who sits in a stolen sukkah. His claim is that although he did not fulfill a commandment, there is also no neglect of a positive commandment here, since he did not eat outside the sukkah. According to that, perhaps someone who returned the money did not fulfill the positive commandment of “and he shall return,” but also did not nullify it, and therefore did not violate the prohibition of theft. But here the question is whether he repaired the prohibition, not whether he violated it, and the straightforward implication is that if he did not fulfill the commandment of “and he shall return,” then he did not repair the prohibition, even though the money was returned. Consequently, he is lashed.
Independently of all this, one should ask whether there are lashes for the prohibition of theft in a case of “he nullified it / he did not nullify it” or “he fulfilled it / he did not fulfill it.” Here, ostensibly, that does not apply, because returning the stolen money does not nullify the possibility of repairing the prohibition. He can return the second theft, and then the return of the money will constitute fulfillment of “and he shall return” and will repair the prohibition. Therefore it seems that even in such a case he is not lashed for theft.
Okay, but is he lashed for this? After all, Shimon did get his money back.
In other words, even if this is a commandment fulfilled through a transgression, at any rate he is exempt from the monetary debt.