In our Gemara on Amud Aleph, a discussion arises regarding a Rabbinic dispensation made to facilitate the repentance of a thief. According to biblical law, if a person steals something and the stolen object remains intact, it must be returned to its original owner. However, if the object has significantly changed or has been lost or destroyed, the thief is obligated to provide monetary compensation. This creates a dilemma for a thief who has stolen a support beam and used it to construct an entire house. Technically, according to the biblical requirement, the thief would need to dismantle the entire house, causing significant financial loss. Recognizing this burden, the Rabbis enacted a dispensation known as Takanas Hashavin, allowing the thief to pay only for the object instead of returning it physically.

The Rabbinic dispensation of Takanas Hashavin not only carries legal implications but also represents an ethical responsibility on the part of the victim. The Gemara in Bava Kama (94b) states: "With regard to robbers or usurers that returned either the stolen item or the interest to the one from whom they took it, one should not accept it from them. And with regard to one who does accept it from them, the Sages are displeased with him, since by doing so he discourages those who wish to repent."

This teaching highlights that it is not only the thief who bears the responsibility of repentance but also the victim. The victim is advised not to accept the stolen object or interest returned by the thief, as accepting it may discourage future repentance. This principle is codified in halakha, specifically in Shulchan Arukh Choshen Mishpat 366.1.

גזלן מפורסם (שעסקיו בכך ותשובתו קשה) הבא לעשות תשובה מעצמו אם אין הגזילה קיימת אין מקבלין ממנו כדי שלא ימנע מלעשות תשובה ואם רצה לצאת ידי שמים והחזיר אין מוחין ביד הנגזל מלקבלו: הגה וכן אם לא בא לעשות תשובה מעצמו רק שהנגזל צריך לתבעו מחייבים אותו להחזיר (טור ס"א):

A well-known robber (who was thoroughly engaged in this and for whom repentance is difficult) who comes on their own to repent: if the robbed item still exists, one should not accept it, in order not to prevent them from repenting, but if [the robber] wanted to fulfill Heavenly standards and returned it, we do not prevent the person who was robbed from accepting it. Rema’s gloss: Similarly, if [the robber] did not come on their own to repent, but was sued by the person they robbed, then we do require them to return it. 

Two important conditions are present in this case: 1. That he be a career, thief, and 2. That he comes forward on his own, and is not convicted in court. However, these conditions apply to the situation of stolen goods that still could technically be physically returned with relative ease if not, for the sheer number. On the other hand, in the case of the beam, put into the building, even a noncareer thief would be given the exemption of having to return it, and can just make monetary compensation in order to facilitate repentance.

Shulkhan Arukh also seems to hold that if the career thief wants to “go the extra mile” and return all the stolen goods, despite the victims willingness to forgive payment, he is allowed to make the payment. It seems that most poskim agree with this, except for Chochmas Shelomo (ibid), who argues that it is an ethical obligation to refuse payment no matter what.

So far, we have discussed the case of a career thief. But what about situations of an ordinary individual who stole where the stolen object is extremely difficult to remove and will incur significant financial loss, such as the support beam in our initial example? Even though the Rabbis granted a dispensation, is it "allowed" or even commendable for the thief to go the extra mile and return the object anyway, for the sake of complete repentance?

This poses a psychological conundrum. On one hand, one might argue that a person should be allowed to pursue the fullest form of repentance dictated by their conscience. On the other hand, indulging in excessive guilt or creating an overwhelming environment for repentance may hinder others from properly repenting. In such cases, it becomes crucial to consider the overall effects versus the individual effects, a principle seen in other areas of halakha.

It is known as התיר סופו משום תחילתו that the rabbis will permit a certain action after a permitted activity that is technically a violation, because if they do not allow it, in the future people will abstain from the original activity that was permitted. As we are taught in Rosh Hashana 23b that Rabbi Gamliel allowed the witnesses who came forward to testify about the new moon and traveled outside of the techum boundary to have a full 2000 cubits in all directions even though once they discharged their duties to come forward and offered to testify, they would be strictly limited to only four cubits. However, this will discourage people from coming forward in the first place, and therefore the rabbis made this allowance (see Tosafos ibid).

This pedagogical dilemma is also subject to debate among the commentaries of Chovos Halevavos (Gate of Teshuva 7:9). Tov Halevanon and Pas Lechem assert that the penitent has an obligation to fully discharge their obligations to God and return the beam. However, Marpeh Lenefesh seems to suggest that no such requirement exists. Once the Rabbis have exempted the thief from physically returning the beam, payment alone suffices for complete repentance.

This debate reflects the need for nuanced judgment in determining when to demand full restitution and when to accept a higher extralegal form of restitution, should the penitent choose to go beyond what is required. Moreover, there are instances where refusing such extra restitution is necessary to prevent discouragement among others and to avoid burdening the process of repentance. The halakha and ethics may change depending on the situation, necessitating careful evaluation. What remains essential is finding a balance between facilitating sincere correction and moral reform without enabling moral laziness, as well as avoiding inducing despair. These considerations may vary between individuals and cultures.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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