Bava Kamma 79

Thieves vs. robbers.

Under common law — meaning under English-based legal systems like those in the United States, England, Australia and much of Canada — theft involves taking something without the owner’s permission, while robbery has the added component of violence or the threat of violence. For this reason, under our judicial system, robbery usually incurs a steeper penalty. Our daf, however, defines these terms differently and evaluates punishment accordingly.

The rabbis define robbery as taking place out in the open, in full view of everyone, while theft involves a degree of stealth or hiding. With this definition in place, the rabbis note that only a thief is required to pay double, fourfold or fivefold payment for their crime while a robber is not. This may strike many as counterintuitive: Isn’t bold wrongdoing worse than sneaky wrongdoing? Why should the stealthy thief pay more than the brazen robber? Rabbi Yohanan ben Zakkai’s students put this question directly to him and he responded:

This one (the robber) equated the honor of the servant to the honor of his Master, and that one (the thief) did not equate the honor of the servant to the honor of his Master.

According to Rabban Yohanan ben Zakkai, the robber is completely shameless: An equal-opportunity offender, he insults the honor of both his Master (God) and his Master’s servants (other people). The thief, on the other hand, hides his actions from other people even as an all-perceiving God knows what he’s doing, indicating a greater concern for humanity’s opinion than for God’s. This makes his crime more insidious and he incurs greater punishment.

The Gemara cites several biblical passages that offer support for this explanation:

As it were, the thief establishes the eye below (i.e., God’s eye) as though it does not see, and the ear below (i.e., God’s ear) as though it does not hear. As it is stated: “Woe to them who seek deeply to hide their counsel from the Lord, and their works are in the dark, and they say: Who sees us, and who knows us?” (Isaiah 29:15). And it is written: “And they say: The Lord will not see, neither will the God of Jacob give heed” (Psalms 94:7). And it is written: “For they say: The Lord has forsaken the land, and the Lord does not see” (Ezekiel 9:9).

In short, denying God’s perception increases the severity of the crime, which is why the thief is subject to a more stringent punishment than the robber. To really drive the point home, the Gemara brings a parable from Rabbi Meir and Rabban Gamliel:

To what is this matter comparable? To two people who were living in the same city, and both of them prepared a feast. One of them invited the people of the city to his feast but he did not invite the king’s sons. And the other did not invite the people of the city and also did not invite the king’s sons. Which of them deserves a greater punishment? You must say that it is this one who invited the people of the city but did not invite the king’s sons.

Imagine directing this question to an advice column: Is it worse to keep your guest list short and invite neither ordinary people nor local notables, or to invite the public and leave notables out? The Talmud concludes that the latter is worse, since it singles out the king’s sons for insult. Likewise, the behavior of the thief insults God — incurring a harsher financial consequence.

Read all of Bava Kamma 79 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 20th, 2024. If you are interested in receiving the newsletter, sign up here.

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