E. Robbery and Theft of a Gentile
With regards to robbery and theft from a Gentile, the Tanna'im disagreed, and subsequently so did the Rishonim, whether the prohibition is from the Torah or only Rabbinic.
It is explained in the Jerusalem Talmud, chapter 4 of Bava Kama, halacha 3: "It happened that the [Roman] kingdom sent two officials to learn Torah from Rabban Gamliel. They learned from him Scripture, Mishnah, Talmud, Halacha, and Aggadah. In the end they said: your entire Torah is fine and praiseworthy, except for these two matters which you say -- a Jewish woman should not be a midwife for a Gentile woman, but a Gentile woman can be a mid-wife for a Jewish woman, and a Jewish woman cannot breastfeed the son of a Gentile woman, but a Gentile woman can breastfeed [the child of] a Jewish woman with her permission; robbery of a Jew is forbidden, but robbery of a Gentile is permitted. At that moment Rabban Gamliel issued an edict that what is stolen from a Gentile is forbidden because of the desecration of G-d's name." According to the Jerusalem Talmud, that which is stolen from a Gentile is forbidden because of Rabban Gamliel's edict and it is only a Rabbinic prohibition. Likewise it is written in Sifri on the portion of V'zot HaBracha, section 344, except that the edict of Rabban Gamliel is not mentioned there.
This is also what is written in the Tosephta, Avodah Zarah chapter 8, halacha 5 (in the Zuckermandel edition; in the Vilna edition it is chapter 9, halacha 4): "...Regarding theft -- a thief, a robber, one who takes a [captive] beautiful woman, and the like -- these are things it is forbidden for a Gentile [to perpetrate] against a Gentile, or [against] a Jew, but it is permissible for a Jew [to perpetrate] against a Gentile."
Thus Rashi wrote on the aforementioned beraitha which appears in Sanhedrin 57a, s.v. yisrael b'goy mutar: "For 'You shall not exploit your neighbor' is written, and it is not written 'a Gentile,' but there is a Rabbinic prohibition, according to the one who says that robbery of a Gentile is forbidden because of desecration of G-d's name in the last chapter 'HaGozel' [chapter 10 of Bava Batra]." Thus it also appears in Bava Metzia 111b: "And since the first Tanna learned the law from the phrase 'his brother,' what does he do with the phrase 'his neighbor'? That phrase comes to teach something in his view also, as stated in the beraitha: 'his neighbor' -- and not a Gentile. But isn't it appropriate to learn that a Gentile is excluded from the phrase 'his brother'? One [phrase] comes to permit exploiting him [a Gentile] and the other comes to permit robbing him, as he holds that robbery of a Gentile is permitted."16 And so it is determined in the commentary attributed to the Ran on Tractate Sanhedrin 57a. Thus, too, ruled the Rama in Even HaEzer, paragraph 28, section 1, and also the Maharshal in Yam shel Shlomo on Bava Kama, paragraph 20.17
In contrast, it is explained in Torat Cohanim on the portion of Behar Sinai, beginning of chapter 9 (and it appears in Bava Kama 113a with differences): "Rabbi Shimon says: from where do we learn that stealing from a Gentile is forbidden? It is written: 'after he [a Jew] is sold [to Gentiles].' Perhaps one can take him by force and leave? [Take the Jew by force from the Gentile's house without paying, to steal him from the Gentile -- commentary attributed to Rabbi Simon Sens]. It is taught: 'He shall be redeemed.' Perhaps one can deceive him? [Fool the Gentile and treat him like an imbecile in order to buy his slave cheaply -- ibid..] It is taught: 'He shall reckon with the one who bought him' -- to be precise with him... If the Torah is so strict in [forbidding] robbery of a Gentile, how much more so concerning robbery of a Jew." It is explained that robbery of Gentiles is prohibited, and the plain meaning of the beraitha is that this prohibition is from the Torah, as the GRA wrote in his commentary on Choshen Mishpat, paragraph 348, section 8, and as the Radbaz wrote in his Responsa, part 2 paragraph 1276.18
Thus it also appears in Sifri on the portion of Ki Teze, section 266: "'When you come into your neighbor's vineyard' -- 'your neighbor's,' to exclude others, 'your neighbor's,' to exclude a vineyard dedicated to the Temple..." ('To exclude others' -- that is to say, the vineyard of Gentiles, for concerning 'your neighbor's' it is written: 'But you shall not put any in your vessel' -- so in the vineyard of a Gentile it is permitted, and it is derived according to the one who says that view which states that generally robbery of a Gentile is forbidden... -- commentary of Rabbeinu Hillel.) Thus it also appears in Tractate Bava Metzia 87b: "...in your neighbor's vineyard and not in the vineyard of a Gentile. It is understandable according to the one who says robbery of a Gentile is forbidden, that is to say, we need this verse to permit a robbery to a worker..." According to these Tanna'im, robbery of a Gentile is forbidden by the Torah. Likewise it is stated in Seder Eliyahu Rabba (Tanna d'vey Eliyahu) chapter 16 (in the Ish Shalom edition, in other editions it is chapter 15), see there. See further the Tosephta on Bava Kama, chapter 10 halacha 15 (in the Vilna edition, halacha 8).
Maimonides wrote at the beginning of The Laws of Theft: "Anyone who steals property worth the value of a prutah and above transgresses a negative commandment, as it says: 'You shall not steal'... no matter if he steals money from a Jew or the money of a Gentile idolater..." In The Laws of Robbery and Lost Items, chapter 1 halachas 1 and 2, he wrote: "Anyone who steals from a his fellow something worth a prutah transgresses a negative commandment, as it says: 'You shall not steal'...and it is forbidden to steal anything according to the ruling of the Torah. It is forbidden to rob or exploit even a Gentile idolater, and if one robs or exploits him, he must recompense him."19 This is also the opinion of the Tur and the Shulchan Aruch in Choshen Mishpat, paragraph 348, section 2, and in the beginning of paragraph 359. Thus also ruled the Gaon of Vilna there, paragraph 348, subsection 8, and in Even HaEzer, paragraph 28, subsection 5, and the Ridbaz in the aforementioned responsum. (It is appropriate to note what the Ridbaz wrote: even though stealing from a Gentile is forbidden by the Torah, one does not transgress a negative commandment by doing it; it is also explained so in Likutei HaGRA on Maimonides, and according to this, once again there is no equality between a Jew and a Gentile). See Chidushei Rabbi Akiva Eiger, paragraph 359, where he proved that according to the view which holds that stealing from a Gentile is prohibited, the prohibition stems from the Torah.
However, even according to Maimonides's opinion that stealing from a Gentile is forbidden from the Torah and that consequently one transgresses a negative commandment by doing it, we find nevertheless found in his words a distinction between a Jew and a Gentile, for thus he wrote in The Laws of Robbery, chapter 6, halacha 7: "The Sages prohibited many things on account of robbery, and one who transgresses these matters is a robber according to their words -- for example, pigeon racers and dice rollers," and there in halacha 11: "one who plays dice with a Gentile does not transgress the prohibition of robbery, but he transgresses the prohibition of engaging in idleness, for it is not worthy of man to engage himself all the days of his life in matters other than words of wisdom and cultivation of the world." That is, in this issue also a Gentile is not completely equal with a Jew. See in the Tur and Shulchan Aruch, Choshen Mishpat, paragraph 370 who brought the words of Maimonides and did not dispute him on this matter, and the SM'A in subsection 4 and in the Prisha in subsection 7. The GRA, in subsection 7, agreed with him.
It is written in the Torah (Deuteronomy 22:2): "You shall not see your brother's ox or sheep going astray and hide yourself from them. You shall surely bring them back to your brother." It is also stated (Exodus 23:4): "If you meet your enemy's ox or his ass going astray, you shall surely bring it back to him." In the Mechilta of Rabbi Shimon bar Yochai on the latter verse it is written: "'Your brother's ox' -- I only have [learned about] my brother, from where [do I learn about] my enemy? It is written: 'your enemy's ox' anyway. Perhaps this is also the case concerning others? It is written: 'your brother,' as your brother is your partner, so too, any man who is your partner." And in Tractate Bava Kama 113b: "Rabbi Bibi bar Gozla said in the name of Rabbi Shimon Chasida: robbery of a Gentile is forbidden... his lost item is permitted, similar to what Rav Chama bar Guryeh said in the name of Rav: from where do we know that the lost item of a Gentile is permitted? As it says: 'In like manner shall you do with his ass; and so shall you do with his garment; and with every lost thing of your brother's' -- every lost thing of your brother's and not every lost thing of a Gentile. It was taught in a beraitha: Rabbi Pinchas ben Yair said, in any instance where there is a desecration of G-d's name, even his [a Gentile's] lost item is forbidden..."20
We learn in Tractate Machshirin, chapter 2 mishnah 8: "One who finds a lost item -- if the majority [in the surrounding area] are Gentiles, he does not have to publicly announce his finding; if the majority are Jews, he must publicly announce it; if half are Gentiles and half are Jews, he must publicly announce." Thus wrote Maimonides in the beginning of chapter 11 of The Laws of Robbery and Lost Items: "One who returns a lost item to a Jew fulfills a positive commandment, as it says: 'You shall surely bring them back to your brother.' One who sees a lost item of a Jew and ignores it and leaves it there transgresses a negative commandment, as it says: 'You shall not see your brother's ox and hide yourself from them,' and he also abandons a positive commandment. And if he returns it, he fulfills a positive command." But in halacha 3 he wrote: "A lost item of a Gentile is permitted, as it says: 'Every lost thing of your brother's'." Thus it is explained in the Tur and Shulchan Aruch Choshen Mishpat, paragraph 266, section 1.
In addition, it is explained in Sanhedrin 76b: "Rabbi Yehuda said in the name of Rav: one who marries his daughter to an elderly man, and one who marries his son of minor age to a woman, and one who returns a lost item to a Gentile, concerning him the verse says, 'To add drunkenness to thirst: the Lord will not spare him'." These are the words of Maimonides there, halacha 3: "If one returns a lost item [to a Gentile] to sanctify G-d's name, in order that the Gentiles glorify the Jews, and know that they [the Jews] are a faithful people -- this is praiseworthy. In a case where there is a desecration of G-d's name, his [a Gentile's] lost item is forbidden, and he [the Jew] is obligated to return it...". The Tur and the Shulchan Aruch wrote similarly there. (In regards to what Maimonides wrote "If he returned the lost item to sanctify...," this is according to the Jerusalem Talmud, chapter 2 of Tractate Bava Metzia, halacha 5 -- but it is important to emphasize that one cannot learn general permission from this, as the Maharshal wrote in Yam shel Sholomo, chapter 10 of Bava Kama, section 20: "G-d desires a man's heart [aspiration to worship Him], therefore [one may do it] if this is his intention [to sanctify G-d's name], however if his intention is that he, and not the faith of Israel, should be praised, or because he loves the Gentile and has mercy on him, it is forbidden [to return the Gentile's lost item].")
The error of a Gentile [i.e., property of which he deprived himself due to an error] is permitted, similar to the case of his lost item.21 Thus it is explained in Bava Kama 113b: "Shmuel said: and his error is permitted." However, the Rishonim disagree about whether it speaks of a case where a Gentile erred in his calculation on his own or if it is permitted to deceive him. In the opinion of Rashi, there (s.v. v'ivla lei zuza) it is permitted to deceive him, in accordance with Rashi's opinion which was clarified above, that stealing from a Gentile is permitted. The Tosaphot also wrote there, s.v. ya'chol, that it is permitted to deceive a Gentile, however only if he cannot discover it and it won't cause a desecration of G-d's name. This is also the opinion of the Tur in Choshen Mishpat, paragraph 348, section 3: "However, his error -- that is, to deceive him in calculations or to raise his loan -- is permitted, but only if it will not become evident to him -- for in such a situation there is no desecration of
G-d's name."22
But this is not the opinion of Maimonides, who wrote in chapter 11 of The Laws of Robbery and Lost Items, halacha 4: "The error of a Gentile is similar to his lost item and is permitted -- that is, if he erred on his own, but to deceive him is forbidden." Likewise he wrote in the beginning of chapter 18 of The Laws of Transactions. This is also the opinion of Rabbeinu Chananel (brought in Shita Mikubetzet; in Aruch, entry plez, it is brought without attribution) of the Rif, of HaRaviyah (brought in the Mordechai, paragraph 158, and in Or Zarua there on Bava Kama), of the Mordechai, and of the Nimukei Yosef.
The Rama in Choshen Mishpat, paragraph 348, section 2, brought both opinions and did not determine in this matter; however, the Maharshal ruled in Yam shel Shlomo (chapter 11 of Bava Kama, paragraph 20) that it is forbidden to deceive a Gentile, and this is the intent of the Gaon of Vilna there, subsection 13.
In any case, the entire essence of this dispute is specifically concerning a Gentile, for with regards to the error of a Jew, everything must be recompensed, as it appears in a number of places, including Kiddushin 42b: "Rava said: anything concerning [faulty] measurements, weights or calculations, even if they are of minimal value, is also recompensed," and so wrote Maimonides in the beginning of chapter 15 of The Laws of Transactions, and the Tur, and the Shulchan Aruch in Choshen Mishpat, paragraph 232.
It is written in the Ten Commandments (Exodus 20:13): "You shall not steal," and also there (21:16): "Whoever steals a man and sells him -- if he is found in his hand, he shall be put to death." In Mechilta, Yitro section 8 it is explained: "'You shall not steal' -- why is this stated? Since it says 'And he that steals a man, and sells him' -- his punishment is stated, from where do we learn a warning? It is written: 'You shall not steal,' this is a warning with concerning abduction." In Deuteronomy 24:7 it says: "If a man is found stealing any of his brethren of the children of Israel and maltreating or selling him, that thief will die: and you shall eliminate evil from within you" -- so it is clearly stated in the Torah that only for abduction of a Jew is one punished by death.
In Sifri on the portion of Ki Teze, paragraph 273: "Stealing any of his brethren -- and not others" (that is, Gentiles -- commentary of Rabbeinu Hillel). Thus we also learn in the beginning of chapter 11 of Sanhedrin: "These are the ones who are [put to death by] strangulation: one who hits his father and mother, and one who abducts a Jew..." And this is the wording of Maimonides in The Laws of Theft, chapter 9, halacha 1: "Anyone who steals a Jewish person transgresses a negative commandment, as it says: 'You shall not steal.' And there in halacha 6: "No matter whether he abducted [one born] a Jew or a convert or a manumitted slave, as it says: 'Any of his brethren,' and these are considered our brothers in Torah and commandments. However, one who steals a slave or a man who is half-slave/half-free is exempt" -- in any case, we learn that one who abducts a Gentile is exempt.
It is written in the Torah (Deuteronomy 25:2-3): "And it shall be, if the wicked man is worthy to be beaten, the judge shall make him lie down, and he shall be beaten before him, according to his fault, by a certain number. Forty lashes he shall give him and not exceed, lest, if he exceeds and beats him with more lashes than these, your brother shall be made vile before you."
In the Mechilta, Mishpatim section 5 on the verse "And he that smites his father or his mother shall surely be put to death," it is explained: "We have heard the punishment, but a warning we have not heard. It is as written, 'Forty lashes he shall give him, and not exceed,' and the matter is an a fortiori inference: if one who is commanded to beat is warned not to [over]beat, one who is commanded not to beat is obviously warned not to beat."
All this is regarding a Jew, as Maimonides wrote in Sefer HaMitzvot, negative commandment 300 (in Rav Kapach's edition): "And from this negative commandment stems the warning not to beat any Jew: if concerning this sinner we are warned not to beat him, all the more so regarding any other man." Likewise, he wrote in The Laws of Monetary Damages in the beginning of chapter 5: "It is forbidden for one to injure himself or his fellow. And not only the one who causes injury, but anyone who strikes a kosher Jewish person, whether a minor or an adult, whether a man or a woman, in any manner like fighting, transgresses a negative commandment, as it is written: 'He shall not exceed to beat him'." See further in The Laws of the Rebellious, chapter 5, halacha 8, and in chapter 16 of The Laws of Sanhedrin, halacha 12. Thus it is also written in Sefer HaChinuch, commandment 600 (in other editions, commandment 595).
Furthermore, one who injures his fellow is obligated to recompense him, as we learn in the beginning of chapter 8 of Bava Kama: "One who injures his fellow is obligated in five categories: damage, pain, healing, rest, and embarrassment." However, the obligation of compensation applies specifically to one who hit a Jew, as Maimonides wrote there, halacha 3: "One who hits his fellow a blow which does not have the value of a prutah is given lashes, for there are no payments appropriate to enable the paying off of this negative commandment. Even if he hits a slave of his fellow, giving him a blow which does not have the value of a prutah, he is given lashes, for he [the slave] is obligated in some commandments" -- but one who hits a Gentile is not liable for any punishment.
In contrast, it says in Sanhedrin 58b: "Rabbi Chanina said: a Gentile who hits a Jew is punishable by death, as it says: 'And he looked this way and that, and when he saw that there was no man, he slew the Egyptian" (because [the Egyptian] had hit a Jewish man -- Rashi, s.v. v'yach). Thus wrote Maimonides at the end of halacha 3: "And a Gentile who hit a Jew is punished by death, as it says, 'And he looked this way and that...he slew the Egyptian'." (However, in The Laws of Kings, chapter 10, halacha 6 he wrote: "And a Gentile who hits a Jew, even if he injured him slightly -- even though he is punishable by death, he is not killed." See there, in the Kesef Mishneh and the Ridbaz, for an explanation of why he is not put to death).
It is written in the Torah (Leviticus 25:14): "And if you sell anything to your neighbor, or buy anything from your neighbor's hands, you shall not defraud one another." In Sifra on the portion of Behar Sinai, section 3, halacha 4 it is written: "'You shall not defraud one another' -- this is monetary fraud." Maimonides wrote in The Laws of Transactions, in the beginning of chapter 12: "It is forbidden for either the seller or purchaser to defraud his fellow, as it says: 'And if you sell anything to your neighbor, you shall not defraud one another.' Even though one [who does that] transgresses a negative commandment, he is not given lashes, for it can be recompensed. Whether he defrauded with intent or he did not know that the transaction was fraudulent, he is obligated to recompense."
However, regarding a Gentile the law is different. In Tractate Bechorot 13b it is explained: "They said: to your partner you return [something gained by] fraud, and you don't return it to a Gentile." Maimonides wrote in chapter 13, halacha 7: "A Gentile has not [been included in the transgression of] fraud as it says: 'one another' [literally, 'each his brother']. But a Gentile who defrauded a Jew must recompense him according to our laws -- it should not be more severe than it is with a Jew." Thus also wrote the Tur and the Shulchan Aruch in Choshen Mishpat, paragraph 227 (in the Tur, section 30 and in the Shulchan Aruch section 26). In this matter also the inequality of a Gentile is obvious.
16Here, too, it is appropriate to point out the printed version: "That phrase comes to teach something in his view also, as stated in the beraitha: 'his neighbor' -- and not an Amalekite. But isn't it appropriate to learn that an Amalekite is excluded from the phrase 'his brother'? One [phrase] comes to permit exploiting him [a Gentile] and another comes to permit robbing him"!! That is to say, they replaced "Gentile" with "Amalekite" and the words "and as he holds, that robbery of a Gentile is permitted" were removed. No doubt average students, and even many Torah scholars, are not aware that the Talmud they have before them has been corrupted and distorted by malicious hands. I have copied the wording from Dikdukei Sofrim, see there sections 40 and 50, and the quotations in the novellae of Nachmanides, the Ran, and Tosaphot HaRosh.back to text
17Concerning what is written there by the Maharshal to critique Rashi, that the reason for prohibition is not because of desecration of G-d's name -- in the Jerusalem Talmud it is clearly as Rashi wrote.back to text
18However, from the aforementioned words of Rashi in Sanhedrin it is clear that he meant this prohibition to be Rabbinic prohibition, and so the aforementioned Yam Shel Shlomo clearly states.back to text
19In the commentary attributed to the Ran on Sanhedrin 57a, it is specifically learned from what Maimonides wrote in the beginning of The Laws of Robbery, "Anyone who steals from his fellow...," that in Maimonides's opinion, stealing from a Gentile is permitted by the Torah. But this is very difficult to accept, for in a number of places Maimonides uses the term 'his fellow' even though the same halacha applies to a Gentile. See, for example, the beginning of chapter 7 of The Laws of Theft: "One who weighs for his fellow using weights which are less than those customarily used or those which have been agreed upon transgresses a negative commandment, as it says: 'You shall do no unrighteousness in judgement, in surveying, in weight, or in measure,'" and there in halacha 8: "One who has dealings with a Jew or with a Gentile idolater -- if he measures or weighs falsely, he transgresses a negative commandment and is obligated to recompense…" The wording 'his fellow' includes Gentiles. The Kesef Mishneh also wrote in the beginning of his comment on The Laws of Robbery that in Maimonides's opinion, the prohibition against robbing a Gentile is not from the Torah, and the Shach, in the beginning of paragraph 359, had already critiqued him and wrote that judging from the wording of Maimonides in the beginning of The Laws of Theft, this is not the case. And in the beginning of paragraph 348 he wrote that it is seemingly so, judging from the wording of the Shulchan Aruch itself.back to text
20The wording of the Gemara is according to Dikdukei Sofrim 8, Rif, and The Rulings of the Rid. In other editions it appears differently.back to text
21This is the wording of Maimonides's ruling which will follow, and see Tzafnat Pa'aneach on Bava Kama 113b, where it is explained that if a Gentile erred on his own, it is similar to a lost item.back to text
22Thus appears in older editions, however in our editions the wording is: "However, the error of a Samaritan was permitted, but only..." and it is difficult to know whether to laugh or to cry regarding such 'corrections' of the censor.back to text