Interestingly, Rema rules that this notion of takkanat
hashavim does not apply to land. That is, if one person stole a piece of land (took
possession of it illegally, for example) and then developed it, so that returning the land
would involve either forfeiting the buildings or razing them, he is nonetheless required
to return the land.
A related application of takkanat hashavim deals with objects that rose in value
after the time of the theft (and the owner’s despairing of recovering the object, the
point of ye’ush). Again, since the thief never really became the owner of the
object (despair alone does not create a valid acquisition for a thief), all of that rise
in value would theoretically be forfeit. However, again because of takkanat hashavim,
Hazal determined that all of that rise in value would belong to the thief, with the owner
receiving only his original object.
A last case of Talmudic takkanat hashavim is the Talmud’s statement that we
do not accept returned money from thieves and from those who lend at interest. That is, in
situations where such people come of their own accord to return the improperly acquired
monies, we are not supposed to accept it from them, so that they will find the path of teshuvah
easier. I would note that the Shulhan Arukh limits this to a "gazlan me-fursam,"
someone who has spent a considerable amount of time as a thief, so that the return of the
value of the stolen property would be an onerous burden.
In addition, two cases allow for accepting returns even from such a confirmed criminal.
First, if the thief had taken an object that still exists, we would accept it from him.
The second exception depends on our realizing that the principle we are discussing here is
a concession to the thief, to help him repair his religious status without driving him to
ruin. It does not mean that a confirmed thief becomes the de jure (by right) owner
of the value of those objects; it only means that Jewish society decided that the
financial loss to the victims was outweighed by the spiritual favor done for the thief. It
was so important to Hazal that we uphold that value statement that they frowned on
accepting that money even if the thief gives it to us without any pressure on our part.
However, the thief must also realize that he has stolen money from people, and that mi-din
Shamayim, in Heaven, his sin could not be fully wiped away until he pays back what he
stole. To the extent that this thief can convince us that he wants to return this
money, and that he wants to do so out of a religious concern— to clean his slate in
Heaven— rather than a social one— that his victims would still look askance at
him— we would be allowed to accept the money. This is obviously a delicate balance,
since we want both kinds of penitents- those who are spiritually concerned enough to
return the money regardless of the financial hardship involved, and those who will repent
only if it does not mean finanncial ruin— to feel comfortable that we accept them
fully.
Since the point of the last rule was to avoid making teshuvah a huge financial
burden, Maharik (Responsum 51) applies the principle to any thief who would be financially
ruined by repaying the value of the property he stole. That would mean, for example, that
if someone committed a stock swindle (but just one) that cost people more money than he
had, takkanat hashavim would nevertheless allow him to avoid repaying all of the
lost money. Let me reiterate (so as not to give the wrong impression) that this is not an
endorsement of the theft, nor is it a principle extended to those who are caught. It is,
rather, Hazal’s attempt to help those who would otherwise be drowned by the financial
enormity of their sin, and would not find their way back to God. We will see Rambam’s
application of this notion (and its contemporary ramifications) next week, be"H. Shabbat
Shalom.
