HALAKHAH AND ULTERIOR MOTIVES

M. Gitin 5:5; b. Gitin 55a. See Rashi on Gitin 55a(s.v. mipney): if we enforce the Toraitic standard and require the thief to tear down the house in order to retrieve the stolen beam and return it to its rightful owner, he will likely refuse to do so. In other words, we effectively prevent him from doing teshuvah. It is better to leave the building standing and allow him to compensate the beam’s owner.

Rambam’s analogy to the taganat hasahvim is, at best, problematic. There, the thief must at least restore the value of the stolen object, if not the object itself; here, the marriage and conversion allow the sinner to keep the fruits of his transgression. This would violate the Talmudic principle that the sinner not be permitted to benefit from his action(b. Yeb. 92b and parallels cited in Masoret Hashas).

Compare the taganah of R. Yehudah Hanasi that, in order to encourage thieves to repent, we do not accept payments of compensation from them(b. Baba Kama 94b). Tosafot(s.v. bimey) notes that this contradicts common Talmudic practice, where thieves were in fact expected to restore the value of stolen goods. Moreover, were this rule to be taken literally, any thief could pretend to do repentance and thereby exempt himself from the compensation requirement. See Yad, Gezeilah 1:13, and Shulhan Arukh, HM 366:1.

See R. Barukh Halevy Epstein, Torah Temimah to Deut. 21:11, n. 72, and below for R. Haim Ozer Grodzinsky’s critique of the notion that the bet din may violate a"little" commandment to save another from transgressing a"big" one.

Resp. Rashba, 1, no. 1205. I say"virtually" because this case is complicated by the fact that the man who cohabits with the Gentile maidservant is already married. Rashba is incensed at the man’s abandonment of wife and child, and this might account in part for his stringent ruling. Nonetheless, Rashba makes clear that the conversion and marriage of the maidservant is a separate wrong, quite apart from the man’s betrayal of his first wife.

Yad, Mamrim 2:4 and commentaries; Elon, pp. 425-426.

The best comprehensive treatment of these principles is Eliezer Berkovits, Hahalakhah: Kocha Vetafkidah(Jerusalem, 1981). See also Shalom Albeck(note 19, above); Louis Jacobs, A Tree of Life, London, 1984, pp. 182-192; Shimeon Federbusch, Hamusar

vehamishpat beyisrael, Jerusalem, 1947; Boaz Cohen, Law and Tradition in Judaism, New York, 1969, pp. 182-238; David Novak, Halakhah in a Theological Dimension, Chico, CA, 1985, pp. 11-28; Moshe Silberg, Kach Darko Shel Talmud(Jerusalem, 1964), pp. 66-138.

P.V. Baker and P. St. J. Langan, Snell’s Principles of Equity, 28th ed.(London, 1982), pp. 5-22; W. W. Buckland, Equity in Roman Law(London, 1911).

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