QUESTION: The Mishnah (108b) discusses a case of a son who steals from his father and swears falsely that he did not steal. Afterwards, the father dies and the son admits to the theft. The Mishnah rules that he must pay the Keren (principle) and Chomesh (additional fifth) to the other heirs of his father.

RASHI (DH Harei) explains that although the son inherits his father (and thus one might argue that he need not pay anything), he nevertheless is obligated to fulfill the Mitzvah of Hashavas ha'Gezeilah, returning the stolen property. Therefore, the son may not keep even his share of the money that he stole, and he must return all of the money to his father's other heirs.

In the Gemara (109a), Rav Yosef states that if the father has no other heirs to whom the thief can return the money, he may give the money to Tzedakah. The MAHARSHA in MAHADURA BASRA explains (on the comments of Rashi DH v'Afilu l'Arnaki) that Rav Yosef does not mean that the father actually has no relatives who inherit him, because only a convert has no relatives. Rather, he means that the son cannot find the relatives and does not know to whom he can return the money.

The Gemara asks, why does the son have to give the money to Tzedakah? Why can he not pardon the debt to himself? Rashi (DH v'Nimchelei) explains that in a case where the thief is the only son of his father, the money he owes to his deceased father automatically becomes his. Accordingly, why must he give the money to Tzedakah?

Why does the Gemara wait to ask this question until after Rav Yosef says that he must give the stolen money to Tzedakah? The Gemara should ask this question immediately on the Mishnah which states explicitly that even when there are no other brothers, the thief must give the stolen money to his uncles, even though he is his father's sole heir.

ANSWER: The PNEI YEHOSHUA answers that if not for Rav Yosef's statement, one might have thought that immediately after the father dies the Torah removes from the son any rights of inheritance of anything in his hands which he had stolen from his father, and it grants the rights of inheritance to the father's other relatives. Since the money automatically goes to his father's other heirs, the son cannot pardon the debt to himself. However, when Rav Yosef states that the son must give the money to charity, this proves that one cannot say that the Torah removes his rights of inheritance from the stolen money and grants it to his father's other relatives. If this were the case, there would be no reason for him to give the money to charity. Rather, he would be obligated to entrust the money to Beis Din who would hold the money until the nearest relatives of the father would be located and could come to collect the money. This is why the Gemara asks its question that the son should be able to pardon the money to himself, only after the statement of Rav Yosef. (See Maharsha in Mahadura Basra to Rashi DH v'Nimchelei.) (D. Bloom)

QUESTION: The Gemara cites a Beraisa that discusses the case of one who steals and swears falsely that he did not. He must return the stolen object to the owner. If, however, the owner is no longer living, the thief must make an effort to locate relatives to whom he can return the money, as the verse states, "If the man has no relative to whom to return the debt..." (Bamidbar 5:8). The Gemara infers from the verse that the thief must make an effort to locate the relatives only when the person from whom he stole was a "man," i.e. an adult. The thief is not obligated to find the relatives of a minor from whom he stole. RASHI (DH Katan) writes that since the minor is not an adult, he certainly has no sons, and therefore the thief gives the money directly to the Kohanim.

Rashi adds that the Gemara in Sanhedrin (69a) infers from this verse that it is not possible for a minor to have children. This inference is problematic, however, because the same Gemara in Sanhedrin (69b) states that in the early generations, people used to have babies at the age of eight. If it was natural at the time the Torah was given to have children under the age of thirteen, how can the Gemara derive from this verse that a minor cannot have children (such that a thief is not obligated to attempt to locate his descendants)?

(a) TOSFOS in Sanhedrin (69a, DH b'Yadu'a) answers that earlier generations and the later generations differed with regard to the age at which a person reached maturity. In the later generations, one generally became an adult at the age of twelve for a girl and thirteen for a boy. In the earlier generations, they became adults at a much earlier age. Accordingly, when the Torah excludes a minor, it excludes any minor in any generation. The fact that there was a shift in the age of maturity does not change the definition of the verse.

(Similarly, the SHITAH MEKUBETZES in the name of ROSH says that in the earlier generations it is possible that men grew beards and women showed signs of physical maturity before the age of eight, signs that they became adults at a much younger age.)

(b) The CHIDUSHEI HA'RAN in Sanhedrin answers that there was no major shift in the age of maturity between the earlier generations and later generations. Rather, when the Gemara says that the earlier generations gave birth young, it refers only to exceptional cases, as mentioned in the verses cited by the Gemara there. Even in those days, the vast majority gave birth only after the age of thirteen years and one day. Accordingly, the verse teaches that a thief does not need to be concerned that the minor from whom he stole might be from the very small minority who has children, and thus he is not obligated to search for his descendants. The Ran writes that this is because the laws of the Torah relate only to the majority of cases. (D. Bloom)