If the Jew experiences distress when an object less than a Shaveh Perutah is
stolen from him, then why is stealing such an amount considered only
*similar* to Gezel, and not actual Gezel? If the answer to this question is
that the Halachah l'Moshe mi'Sinai teaches that one does not transgress the
Isur of Gezeilah for stealing less than a Shaveh Perutah even though the
victim suffers, then why should the same Halachah l'Moshe mi'Sinai not
exempt a Kusi who steals less than a Shaveh Perutah, just as it exempts a
Jew?
In addition, from the Gemara later (end of 59a) it seems clear that the
reason for the difference between a Jew and a Kusi who steal less than a
Shaveh Perutah is not related to a Halachah l'Moshe mi'Sinai. Rather, the
reason a Kusi is Chayav is because he is "Lav Benei Mechilah," he is not
Mochel less than a Shaveh Perutah. That Gemara itself needs further
elucidation, because we see in the Beraisa here that a Kusi is Chayav when
he steals less than a Shaveh Perutah even when he steals from a Jew, who
*is* Mochel less than a Shaveh Perutah.
(a) RASHI (DH Tza'ara) seems to have been bothered by this question. Rashi
answers that we learn from the verse in Vayikra (5:22) that a person
transgresses the Isur of Lo Sigzol only when he steals the type of object
which he will be obligated to return (or to pay for if it is sold, lost or
consumed) afterwards. When less than a Shaveh Perutah is stolen from a Jew,
it will not have to be returned since the Jew is Mochel it, and therefore we
can deduce that the Torah does not include less than a Shaveh Perutah in the
Isur of Lo Sigzol. However, this does not exempt a Kusi from the Chiyuv of
Gezeilah when he steals less than a Shaveh Perutah, since it can be proven
that the Chiyuv Gezeilah of a Kusi is not linked to the obligation to return
the stolen object, the obligation of "Hashavah." Rashi proves this from the
fact that a Kusi can *never* be obligated to return a stolen object, since
he is Chayav Misah for stealing (as the Talmidim of Rav learn from a Mah
Matzinu). The rule of "Kam Lei b'd'Rabah Minei" -- which apparently applies
to a Nochri as it applies to a Jew, according to Rashi -- will exempt him
from the obligation to pay for what he stole, since he is being punished
with Misah. If a Kusi is never obligated to pay for a stolen object (which
was sold, lost or consumed) and yet he is commanded not to steal, then
obviously the two are not linked with regard to a Kusi. Therefore, a Kusi
should be Chayav Misah even when he steals less than a Shaveh Perutah from a
Jew who is Mochel the money. This seems to be the intention of Rashi here
and in Eruvin (62a, DH Lo Nitan l'Hishavon).
Rashi seems to be following his opinion elsewhere with regard to how to
define the obligation to pay for a stolen object. The Gemara in Makos (16a)
says that one is not Chayav Malkus (for transgressing Lo Sigzol) when he
destroys a stolen object, since he is obligated to pay for it. Rashi there
(16b, DH Hasam) seems to understand the Gemara to be saying that if a person
is obligated by the Torah to pay for a certain sin that he committed, then
he cannot be punished with Malkus for that sin, since we do not administer
two punishments. This is consistent with our Girsa of the Gemara there in
Makos.
TOSFOS there (16a, DH Hasam) understands the Gemara differently. Tosfos
understands the Gemara to be saying that since a person may still pay for
what he stole, he does not receive Malkus because the Isur is "Nitak
l'Aseh," it is still rectifiable. According to the understanding of Tosfos,
a Nochri should not be exempt from the Mitzvah of paying for a stolen object
just because he is being killed. On the contrary, if a Nochri is commanded
to perform Hashavah, then we will *not* be killed for stealing if he pays
for, or returns, the object. (According to the opinion that says "Bitlo v'Lo
Bitlo" (Makos 15a), it will be impossible to kill a Nochri for Gezel, since
he can always return the stolen object. Therefore, the verse which teaches
that a Nochri is killed for Gezel will also teach that the Nochri's Gezel is
not "Nitak l'Aseh" for Hashavah.)
The Gemara later (59a) is teaching the reason why a Kusi is Chayav when he
steals from another Kusi, even if his Isur of Gezel *is* linked to Hashavah.
In truth, however, he is Chayav even when he steals from a Jew, for the
reason that Rashi gives here.
(b) The YAD RAMAH writes that the explanation of Rashi is not logically
sound. (Perhaps he learned the Mitzvah of Hashavah like Tosfos in Makos.)
Instead, he explains that when a Jew steals less than a Shaveh Perutah, it
*does* constitute an act of Gezel. However, it cannot be collected in court,
because the victim was Mochel the property that was stolen. Because it
cannot be collected in court, the Gemara calls this form of Gezel "ka'Yotzei
Bo," and not actual Gezel, meaning that it is not *identical* to the normal,
common case of Gezel, but rather it is only *similar* to the common case of
Gezel. However, it is an act of "Lo Sigzol" in either case.
The Gemara rejects Rav Papa's answer by asking why the Beraisa only calls it
"similar to Gezel" when a Kusi steals less than a Shaveh Perutah from
another Kusi. Since he is not Mochel, it should be actual Gezel! According
to the Yad Ramah, this means that a Kusi can be obligated by court to return
even less than a Shaveh Perutah which he stole. From the Yad Ramah it seems
clear that the obligation of Hashavah *does* apply to a Kusi (for otherwise
it would not be called actual Gezel).
According to the Yad Ramah, when the Gemara (59a) says that a Kusi is Chayav
for stealing less than a Shaveh Perutah from another Kusi because the victim
is not Mochel, it is only giving a reason for why the Kusi has an obligation
to *return* what he stole (as REBBI AKIVA EIGER writes on the Rambam,
Hilchos Melachim 9:9). With regard to the Isur of Gezel, a Kusi and a Jew
are the same and they both transgress the Isur even when they steal less
than a Shaveh Perutah. That is why the Gemara there does not address the
Isur of Gezel, but rather the obligation of Hashavah. (This is also the
opinion of Tosfos in Eruvin 62a, DH Ben Noach, and Avodah Zarah 72b.)
(c) The RAMBAM (Hilchos Melachim 9:9-10) seems to take a different approach.
The Rambam writes that a Nochri is Chayav Misah even when steals less than a
Shaveh Perutah. Similarly, a Nochri is Chayav Misah even when he eats less
than a k'Zayis of Ever Min ha'Chai. The Rambam seems to have learned that
the Shi'urim that apply to Isurim for Jews do not apply for Nochrim. This,
then, will explain why a Jew does not transgress the Isur of Gezel when he
steals less than a Shaveh Perutah, but a Nochri does transgress it. Why,
though, do the laws of Shi'urim not apply to the Isurim of Benei Noach?
The RADVAZ there explains that all Shi'urim are learned through a Halachah
l'Moshe mi'Sinai (Sukah 5b). The Rambam learns that anything given over to
Moshe at Sinai cannot apply to a Nochri, since the Isurim of Benei Noach
existed before Moshe received them at Sinai (and we assume that the Shi'urim
were not included in the oral tradition of the seven Mitzvos which were
given to Benei Noach). The Radvaz does not cite a source for this. He seems
to base it on logical argument alone.
The Gemara later (59a) seems to contradict this explanation of the words of
the Rambam. The Gemara there says that a Kusi is Chayav for stealing less
than a Shaveh Perutah only because a Kusi does not forego an object worth
less than a Shaveh Perutah. Aside from that, the Gemara implies that the
Halachos of Gezeilah of a Kusi and of a Jew are identical. According to the
Radvaz, the Rambam differentiates between a Nochri and a Jew even with
regard to the k'Zayis of Ever Min ha'Chai, and the Torah is more stringent
with a Nochri! This seems to contradict the entire assumption of the Gemara
there (59a)!
The answer to this might be that with regard to the Isur of Gezel, the laws
of a Nochri are not more stringent than the laws of a Jew, because even for
a Jew it is prohibited to steal less than a Shaveh Perutah, due to the
principle of "Chatzi Shi'ur Asur Min ha'Torah." The Torah's stringency with
regard to a Nochri affects only the *punishment* of a Nochri, and the
punishment of a Nochri who steals is always more stringent than that of a
Jew who steals. (See Tosfos in Chulin 33a, end of DH Echad.) The Gemara
later (59a) -- which says that we are more stringent with a Kusi because he
is not Mochel -- is discussing only the obligation of Hashavah (as we
explained according to the Yad Ramah).
Another way of understanding the Rambam is based on the principle that when
a Nochri transgresses any Isur, he can be killed because "Azharasan Zu Hi
Misasan" (as our Gemara states). This means that a transgression, for a
Nochri, inherently includes the death penalty. We know that even though a
person does not receive Malkus for eating half of a Shi'ur of Ever Min
ha'Chai (or of any other Isur), nevertheless he has still transgressed the
Isur d'Oraisa of eating Ever Min ha'Chai (as Rebbi Yochanan teaches in Yoma
73b, whom the Halachah follows). This means that the Shi'ur limits only the
punishment for the transgression. It teaches that a person is punished only
when he transgresses the prohibition with a certain quantity. Since, for a
Nochri, any transgression includes the death penalty, it is obvious that the
Shi'urim will not apply to him, because even when he eats less than a Shi'ur
he has transgressed the prohibition.
According to the Rambam, when our Gemara says that less than a Shaveh
Perutah is not actual Gezel, it means that it is not the type of Gezel that
is punishable with an obligation of Hashavah. When the Gemara asks that when
a Kusi steals from a Kusi less than a Shaveh Perutah it *is* actual Gezel,
it means that he is obligated to return what he stole, since the laws of
Shi'urim do not apply to a Kusi, and therefore such an act such be
considered actual Gezel (and not just "similar to" Gezel).
According to the Rambam as well it is clear from the Gemara that a Nochri
has an obligation of Hashavah like a Yisrael.