This article originally appeared in the Jewish Free Press, Calgary

Beam Me Up*

Imagine the following scenario:

You've finally gotten around to building that new extension to your house. And it looks as if you've been graced with an additional stroke of luck, since your brother-in-law has succeeded in obtaining a supply of high-quality building materials at bargain-basement prices.

A few days after the completion of the project, you are visited by a police officer, and discover that the deal that you got on the lumber was truly a "steal"--in the most literal sense of the word. The wood was part of a load that had been pilfered from a warehouse several months earlier.

How does this unfortunate development affect the status of that new extension of your house?

The Torah is quite explicit in its insistence that one who is in possession of illegally acquired property "shall restore that which he took violently away, or the thing which he hath deceitfully gotten."

The sages of the Mishnah also taught that as long as the stolen article is still intact, the illicit possessor is personally obligated to restore it to the hands of the lawful owner. So grave is the moral obligation imposed by Jewish law that an individual might be required to carry the stolen items all the way to far-off Media.

If follows from this that the unfortunate soul who make use of ill-gotten timber would have to disassemble the offending structures in order to return the boards and beams to their original owners.

In fact, the adjudication of such cases was a topic of controversy among the Jewish religious authorities of the first century.

The School of Shammai insisted that one who had built a stolen beam into a residence was required to dismantle the entire building in order to extract the beam, in compliance with the dictates of the Torah.

However the school of Hillel, which became normative for subsequent Jewish law, took a more flexible approach to the matter, allowing the culprit to compensate the owner with the cash equivalent.

This view of the school of Hillel invites an instructive comparison with the ostensibly similar ruling in Roman law, as codified in Justinian's Code and other sources of judicial procedure. The "Twelve Tables" stipulated that "no one shall be compelled to take out of his house materials, even though they belong to another, which have once been built into it."

In both legal systems, the case of the "stolen beam" became a proverbial expression for any stolen property that was subsequently embedded into a structure. The Talmud calls gives it the Hebrew designation "merish ha-gazul," while the Latin Jurists knew it as "tignum iunctum."

On the surface, the laws seem identical. However, when we examine them more closely, we realize that they derive from very different motives.

The Romans had an eminently pragmatic reason for this rule; namely "to avoid the necessity of having buildings pulled down."

The sages of Israel, on the other hand, had a very different concern in mind in foregoing the obligation of taking apart a house to retrieve stolen beams. They refer to "takkanat ha-shavim," an ordinance for the sake of the penitent.

Our rabbis were worried that the resulting financial loss would be so burdensome upon the culprits that it might impede their eventual repentance, which was the overriding purpose of the judicial structures of Jewish law. It was for this reason that they enacted that financial compensation would be acceptable in such circumstances.

As we noted, it was the view of the House of Hillel that became normative, and was adopted in the Mishnah. Nevertheless, though the court could not compel an individual to dismantle a house in order to restore stolen planks, the third-century sage Samuel insisted that the culprit was still under the Torah's personal obligation to do so.

The rabbis encouraged victims to forego their claims to restitution, where that would facilitate the rehabilitation of the criminal. Rabbi Yohanan claimed the ruling was enacted as a result of an actual incident, when a criminal was on the verge of repentance until his wife argued "Idiot! If you were to make full amends, then even your belt is not your own!"

To be sure, I would be the last person to recommend that you build a house out of stolen materials. Nevertheless, you should be aware that if you should find yourself in such an unfortunate situation, it could provide you with some profound lessons about the relationship between law and ethics in Judaism.

This article and many others are now included in the book

Ask Now of the Days that Are PastAsk Now of the Days that Are Past

by

University of Calgary Press


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My email address is: eliezer.segal@ucalgary.ca

[1]

  • First Publication:
    • Jewish Free PressJune 17 1999, p. 26.

  • Bibliography:

    • Cohen, Boaz. Jewish and Roman law, a comparative study. New York: Jewish Theological Seminary of America, 1966.
    • Federbusch, Simon. ha-Musar veha-mishpat ba-Yisrael. Yerushalayim: Mosad ha-Rav Kuk, 1979.
    • Moyle, J. B., ed.. Imperatoris Iustiniani Institutionum, libri quattuor. [Ed. 5] ed. Oxford,: Clarendon Press, 1964.