Stealing with intent to benefit the owner or with intent to return

Stealing with intent to return or as a joke and the like:[1]

Stealing for benefit of owner:[2] It is forbidden to steal even if one’s intention is to benefit the owner, to pay him Keifel, being that he knows the owner will not accept the money otherwise [unless he steals and is forced to pay Keifel]. [This applies even if one intends to return the item and then pay Kefel.[3]]

Stealing to cause pain:[4] It is forbidden to steal an item from another even if one has intent to return the item and is simply doing so to cause pain to the owner.

Stealing as a joke:[5] Furthermore, even if one has no intent at all to cause pain to the owner and is stealing the item merely out of jest, it is nevertheless forbidden to do so.[6]

Are the above prohibitions Biblical or Rabbinical: One who steals [in any of the above ways[7]] transgresses the negative command [against stealing].[8] However, some Poskim[9] rule it is only Rabbinically forbidden to steal with such intent [of paying Kefel, or causing pain, or as a joke[10]], and is not a Biblical prohibition.[11]

Stealing with intent to pay for the item:[12] It is forbidden to steal an item from a Jew even if one has intent to pay the owner for it’s value. Thus, force sales are forbidden. One who does so does not transgress the stealing prohibition but rather the prohibition of Lo Sachmod. It is however permitted to take an item from a gentile with intent of paying the gentile its full value.[13]

Summary:
It is forbidden to take another’s item without permission even if one plans to return it. This applies even if he is taking it as a joke, or with intent to benefit the person, and certainly if one is doing so in order to pain the owner. According to some Poskim, stealing under such conditions is only Rabbinically forbidden, however the main ruling follows that it is Biblically forbidden due to stealing.

 Q&A

May one steal from a gentile with intent to return?
No. It is forbidden to steal from a gentile even with intent to return the item, just as is the law by a Jew.[14] It is however permitted to steal from the gentile with intent to pay for the item its full value, as stated above.

May one steal the Afikoman on the night of the Seder?
Some[15] communities are accustomed to have the children steal the Afikoman on the night of the Seder and hold it ransom until the father redeems it with a promissory gift of some kind.[16] Other[17] communities however specifically avoid doing so due to resemblance of the stealing prohibition, and so is the Chabad custom to avoid this Minhag.[18]

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[1] Admur Gzeila Ugineiva 2-3

[2] Admur Gzeila Ugineiva 2; Michaber 348/1; Braisa Bava Metzia 61b as explained in Rashi ibid; Smeh 348/3; Omitted in Rambam Hilchos Gneiva 1/2-see Lechem Mishneh ibid

[3] So is evident from Admur ibid 3 and Kuntrus Achron 1

Other opinions: Some Poskim rule it is only forbidden to steal with intent to keep the item, however to steal temporarily is permitted, and so is done on a daily occurrence. [Shita Mekubetzes on Gemara ibid, brought in Pischeiy Teshuvah 348/2 and Ketzos Hachoshen 348/1] Pischeiy Teshuvah 348/2 and Ketzos Hachoshen 348/1 conclude it is proper to be stringent

[4] Admur ibid 3

Source for prohibition against stealing for sake of causing pain [however does not mention if plans to return]: Michaber 348/1; Rambam Hilchos Gneiva 1/2; Braisa Bava Metzia 61b “Liminkat”; Admur learns that the ruling in above Poskim includes even when plan to return; however see Smeh ibid who seems to learn differently in Michaber ibid

Source for prohibition against stealing for pain even temporarily: Admur Gzeila Ugineiva 3; Beis Yosef 348, brought in Smeh 347/2; Sifri explicitly writes even if one steals to cause pain and intends to return is forbidden; Implication of Rambam in Sefer Hamitzvos L.S. 244, 1st pirush in Shita Mekubetzes on Gemara ibid, [above is all brought in Ketzos Hachoshen 348/1 and Pischeiy Teshuvah 348/2]

Other opinions: Some Poskim rule it is only forbidden to steal with intent to keep the item, however to steal temporarily is permitted, and so is done on a daily occurrence. [second Pirush, and conclusion, in Shita Mekubetzes on Gemara ibid, brought in Pischeiy Teshuvah 348/2 and Ketzos Hachoshen 348/1; See Smeh ibid who seems to learn in Michaber that stealing for pain is to keep the item] Pischeiy Teshuvah 348/2 and Ketzos Hachoshen 348/1 conclude it is proper to be stringent

[5] Admur Gzeila Ugineiva 3; Michaber 348/1; Rambam Hilchos Gneiva 1/2; Learned from Braisa ibid regarding stealing in order to pay Keifel [See Kuntrus Achron ibid 1]

Other opinions: Some Poskim rule it is only forbidden to steal with intent to keep the item, however to steal temporarily is permitted, and so is done on a daily occurrence. [Shita Mekubetzes on Gemara ibid, brought in Pischeiy Teshuvah 348/2 and Ketzos Hachoshen 348/1]

[6] Admur ibid; Kuntrus Achron ibid 1 in name of Rambam, or based on the ruling of stealing to pay Kefel; Michaber ibid; Rambam Hilchos Gneiva 1/2

[7] The Braisa mentions Kefel and pain to be learned from the verse; Stealing as a joke being Biblical can be derived from this Braisa who prohibits even stealing to benefit owner to pay Keifel, and hence certainly stealing as a joke is forbidden. [See Kuntrus Achron ibid 1] Vetzaruch Iyun, as stealing to pay Kefel perhaps refers to when he plans on keeping the object, and not when stealing temporarily.

[8] Stam opinion in Admur ibid; Implication of Braisa Bava Metzia 61b; Maggid Mishneh Gezeila 1/3 in opinion of Rambam [as explained in Kuntrus Achron ibid 2 that the Maggid Mishneh does not hold its an Asmachta, and the reason the Rambam gives a reason “so one does not come to accustom himself to stealing” does not come to negate its Biblical status, but is just an explanation of why the Torah prohibited it, as explains the Rambam regarding the prohibition of owning faulty weights ]

[9] 2nd opinion in Admur ibid; Lechem Mishneh Gneiva 1/1 in opinion of Rambam ibid that the Drasha in Bava Metzia ibid is Asmachta; Implication of Rambam ibid who writes the reason behind the prohibition is “so one does not become used to doing so” ; Implication of Michaber ibid who writes like Rambam ibid

[10] See Lechem Mishneh ibid; See Michaber and Rambam ibid who mention all three in same Halacha

[11] The reason: The Sages prohibited one from stealing even out of jest lest he make himself accustomed in doing so. [Admur ibid; Michaber ibid; Rambam ibid]

[12] See Admur ibid 5 that one who forces/pressures someone to sell him an item transgresses Lo Sachmod. See Admur Kuntrus Achron 440/11 that the same applies if one takes the item on his own accord, without knowledge or permission of the owner, with intent to pay for it that he transgresses Lo Sachmod, and not Lo Sigzol/Signov.

[13] Admur KU”A ibid

The reason: As when one intends to pay the owner for the value of the stolen object there is no prohibition of stealing, but rather of Lo Sachmod [Admur KU”A ibid based on Bava Metzia 5b; Avnei Nezer 44/4; 324/5; 325/15; See Chikrei Halachos 1/23b], and the prohibition against Lo Sachmod [force sales] was never said regarding the items of gentiles. The reason for this is because the verse states “Lo Sachmod … Reiecha”, your friend, which comes to include only a Jew. [Admur KU”A ibid based on ruling that Lo Sashok does not apply to item of Gentile due to that the verse says Reiacha; See Admur Gzeila Ugineiva 4 who excludes the money of a gentile from the prohibition of Lo Sashok, however in Halacha 5 Admur makes no mention of exclusion of item of gentile from the prohibition of Lo Sachmod; Other Poskim who also rule Lo Sachmod does not apply to a gentile: Chasan Sofer in Shaar Hamakneh p. 92; Poskim brought in Sdei Chemed Mareches Lamed 130; See Avnei Nezer 44/4; 324/5; 325/15; Emek Sheila 82; Tehila Ledavid 3/31; Chikrei Halachos ibid]

Other opinions: Some Poskim rule the prohibition of Lo Sachmod applies even aginst the property of a gentile, and hence it is forbidden to steal his items even if one has intent to pay. [Dvar Moshe Tinyana 98; Poskim in Sdei Chemed ibid; See Perisha 604] Other Poskim leave this matter in question. [P”M 604 M”Z 1]

[14] So is evident from Admur ibid 1 who writes the stealing prohibition applies equally against a Jew and non-Jew and in Halacha 2-3 Admur makes no distinction between Jew/gentile, and only in Halacha’s 4-5 is a distinction made regarding the prohibitions of Lo Sashok and Lo Sachmod, hence clearly implying that Lo Signov and Lo Sigzol have same law by both Jew and gentile.

[15] Many Ashkenazi communities

[16] Source: Chok Yaakov 472/2; Aruch Hashulchan 472/2; Mishneh Halachos 11/393; See Pesachim 109a “Chotfim Matzos Beleil Pesachim”, and as explained in Rambam Chameitz Umatzah 7/3, Sefer Hamichtam, Nimukei Yosef 109a it means “They grab/steal Matzos from each other”; Other Rishonim however explain this Gemara differently

The reason: This custom is followed as an incentive to keep the children awake. [Chok Yaakov ibid; Gemara ibid] There is no stealing prohibition involved being it us done as a holy custom, and is as if it is taken with consent of the father. [See Sukkah 45a regarding stealing Esrogim out of Simcha; Rama O.C. 695/2 regarding Purim; C.M.  378/9 regarding damages by Simchas Chasan Vekallah; Asei Leha Rav 6/35]

[17] Tzans; Beis Avi 3/26; Halichos Shlomo 9 footnote 210; Orchos Chaim Spinka 473/19; Most Sefardi communities don’t steal the Afikoman

[18] Hagada Shel Pesach of Rebbe “Afikoman”: “In the Rebbe’s home we are not accustomed to grab the Afikoman, and to mention the Mamar Chazal in Brachos 5b regarding tasting the taste of stealing”

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