Theft and Robbery
Theft and Robbery
THEFT AND ROBBERY
THEFT AND ROBBERY (Heb. גְּנֵבָה וּגְזֵלָה). An object which is in the possession of a person without the consent of its owner or any other person having a right thereto, when that person knows – or should know – that the latter does not consent, is considered to be stolen or robbed by him, regardless of whether the person holding it intends to restore it to the possession of the person entitled to it after a time or not at all (Sh. Ar., Ḥm 348:1). The thief differs from the robber in the fact that the former steals furtively, when unobserved, whereas the robber takes openly and forcefully (bk 79b). This distinction is of practical significance for criminal law only; in dealing with civil cases the law relating to a robber applies equally to a thief and vice versa.
To establish that the object is in his possession, it is necessary for the thief or robber to perform an act of *acquisition (kinyan), such as a "lifting up" or "pulling" thereof, in the same manner as a person who wishes to acquire ownership of ownerless property; without this the object does not enter his possession and no theft or robbery is committed (bk 79a and Tos. thereto). In terms of this definition, land is never robbed (Suk. 30b), as it remains in the possession of its owner and never of the robber because it cannot be carried away, and the owner, who can always restore it to his possession by judicial means (bm 7a and Tos. to bm 61a), retains control thereof. On the other hand, a bailee who, without the owner's consent, overtly converts an object to his own use or denies the ownership of the bailor is thereby stealing it (Yad, Gezelah 3:11 and 14). This rule applies in the case of any person, such as a borrower or hirer, who has acquired possession of property with the owner's consent and thereafter refuses to return it (Maggid Mishneh, Gezelah 1:3). Many of the scholars of the Talmud are of the opinion that anyone who borrows a thing without the owner's consent is a robber (bb 88a). Moreover, some of them hold that anyone into whose hands a thing comes with the consent of its owner who afterward changes or departs from the use intended for it by the owner is a robber (bm 78a), for his possession thereof is contrary to the owner's wishes. Similarly, a man who finds a lost article and takes it with the purpose of keeping it is a robber (bm 26b), but a bailee who fails to return a thing, falsely pleading that it was stolen from him, is a thief and not a robber (bk 108b).
Certain things are not subject to the law of robbery because people do not mind their being taken; therefore a man who takes them without permission becomes entitled to them, as in the case of a tailor appropriating part of the thread with which he sews a suit, or a carpenter appropriating the sawdust from timber (bk 119a), or a son supported by his father who gives a morsel of food to a friend (Tosef., bk 11:4). In some cases the rabbis, for the sake of peace and order, regulated for the extension of the laws of robbery to property not legally subject thereto, because the ownership is not effective in law – as in the case of property found by a deaf-mute, idiot, or minor – as well as animals, birds, and fishes caught in certain snares set for them (Git. 59b).
The thief or robber is obliged to restore the stolen property itself (in specie) to the owner. The obligation comes into being from the time that the robbery is committed and is not fulfilled until the stolen property is returned in such a manner as to enable the owner to know that it has been restored to his possession (bm 31a).
If the thing robbed is damaged while in the robber's possession, he is obliged to compensate the owner for the loss in accordance with the law applicable to a tort-feasor (see Tashba in: Shitah Mekubbeẓet, bk 97a); if improved while in the possession of the robber, it must be returned with all improvements, for which the robber is entitled to be compensated. If the thing is lost or destroyed while in the possession of the robber (cf. Sanh. 72a), or is changed to such an extent that it can no longer be put to its former use and is not fit for the owner's purpose (Rashba and Ramah in: Shitah Mekubbeẓet, bk 96a), the robber must pay the value of the thing robbed at the time of the robbery. The Talmud records disputing opinions on the law of shinnui. As indicated, shinnui ("transmutation," "specificatio") is constituted when the stolen property has undergone a change, whether an improvement or deterioration, to the extent that it is no longer fit for its former use, such as wood converted into utensils, wool into clothes, stones which are cut (bk 93b), an animal which has grown old, a coin which has cracked and is not fit to be used, fruit which has rotted, and wine that has gone sour (bk 96b). An accepted criterion for testing whether the shinnui is such that the stolen property is rendered unfit for its former use is to examine whether it has undergone a change of name (bk 65b), for people customarily call something which has a specific use by a particular name, so that a change of name denotes a shinnui. Yet some scholars are of the opinion that shinnui is subject to no special law: the robber must restore the changed object itself; if it is damaged by the change, he must compensate for it; if improved, he is entitled to compensation. However, most scholars hold that the return of the changed stolen property does not serve to restore the owner to the position he held prior to the robbery, inasmuch as the thing is no longer fit to be used by the owner as before and is therefore as if lost to him; thus the robber has to compensate for the thing according to its value at the time of the robbery, thereby acquiring ownership of the changed article. A third opinion is that in law the robber must restore the changed thing itself, but the rabbis – in order to encourage contrition on the part of the robbers – regulated that stolen property, if improved, need not be returned and the robber must only pay compensation for it (bk 66a, 93b, 94a). Again, others are of the opinion that even when the possibility of restoring the thing to its prior use remains – and therefore by law the shinnui does not transfer title – still if the loss which the robber would sustain in restoring the thing to its former use exceeds the benefit which the owner would derive from it, then the rabbis regulated that the robber need not restore it. In such an event the robber need only compensate for its value. An example of such a case is where the robber would have to demolish a whole structure in order to return a stolen beam which he had built into it (bk 95a).
Any profits which the stolen property may yield while detained by the robber belong apparently to the robber and he is not required to account for them to the owner (see Rema, Ḥm 354:1). Moreover, any loss suffered by the owner as a result of being deprived of the use of the stolen property while it was detained by the robber is an economic loss, for which the robber is not required to compensate him (Ḥm 363:3 and Sma thereto). Similarly the robber does not pay for a sickness from which a beast recovers (Ḥm 363:1).
Apart from shinnui the robber may also acquire ownership of the stolen property and be required merely to pay compensation for it in the event of the owner's *ye'ush ("despair"). Once the owner has lost all hope of the stolen property being restored to his possession, his ownership thereof is extinguished and title thereto is acquired by the robber, who is required only to pay its value at the time of the robbery. Opinions are divided in the Talmud on the question as to when exactly ye'ush is constituted and title conferred on the robber. Some scholars hold that ye'ush follows mere theft but not mere robbery: some hold the opposite view; and still others aver that ye'ush follows either (bk 114a–b). Another view is that despair alone does not suffice as it cannot be ascertained whether the owner has truly abandoned hope; to be recognized as real, ye'ush must therefore be accompanied by something more: either ye'ush with a change of possession, the stolen property having passed from the robber to a third person, or ye'ush accompanied by a change in the name by which the stolen article is called, i.e., when it has changed to such an extent, that people will incline to call it by another name even if it were possible to restore the article to its prior name. Mere ye'ush is nevertheless held by some scholars to suffice and to confer title to the stolen property on the robber (bk 66a–67a, 115a).
In strict law, when the thief delivers the stolen property into the possession of a third party prior to the owner's ye'ush, the latter may recover possession of his property from the third party without payment, for he has remained owner thereof. This law, if unamended, would have caused hardship to a bona fide purchaser on the open market, who could never be certain that he would not be deprived of his purchase by its true owner; as a result, since they had no means of taking precautions, people would never be in a position to buy anything with certainty. The rabbis accordingly enacted the takkanat ha-shuk ("open market rule") to protect both the purchaser in good faith and the owner. It provided that a man who purchases and pays for an article in the market without being in a position to know that it was stolen, while obliged to return it to the owner, is also entitled to demand a refund of the price from the latter. The owner accordingly recovers his property without causing the purchaser any loss (bk 115a).
In a case where the robber has transferred the stolen property into the possession of a third party and it is consumed by the latter prior to the owner's ye'ush, the Talmud records a dispute over whether the owner may demand compensation from one or the other at his option or from the robber only (bk 111b). Again, opinions are divided on the question of whether the heirs (of the robber) are considered as strangers, in the same position as a third party into whose possession the stolen property has come, or whether their possession is as that of the robber from whom they inherited (ibid.). In the post-talmudic period, the courts adopted the practice of restoring the stolen property itself to the owner even after ye'ush and a change of possession (Rema, Ḥm 356:7).
The Criminal Law
Stealing is repeatedly prohibited in the Bible. As the prohibition contained in the Decalogue (Ex. 20:13; Deut. 5:17) appears in the context of capital offenses, such as murder and adultery, it has been held to constitute the capital offense of man-stealing (see *Abduction), while the prohibitions of theft (Lev. 19:11) and robbery (Lev. 19:13), which appear in the context of fraudulent and oppressive dealings with men, were held to constitute the non-capital offense of larceny of money or chattels (Mekh. Yitro 8; Sanh. 86a; bm 61b; Yad, Genevah 1:1). The differentiation between theft and robbery is the same as in civil law (see above): theft is committed clandestinely, robbery openly (Yad, Genevah 1:3). It does not matter whether or not the thief (or robber) intended to enrich himself, permanently or at all, or whether he committed the offense only to annoy the owner or as a practical joke, or with the intention of borrowing and returning the thing taken, or with the resolve to pay all damages and penalties (bm 61b; Tosef., bk 10:37; Sifra Kedoshim 2); and it is said that the prohibition extends also to stealing one's own from the thief (bk 27b; Tosef., bk 38).
Criminal misappropriations are classified as falling into seven categories:
(1) *Fraud, that is, "stealing another man's mind";
(2) stealing by way of falsifying *weights and measures;
(3) stealing things which are useless or the use of which is forbidden to their owner, which is not punishable;
(4) misappropriating bills, lands, or consecrated property – for which only restitution has to be made;
(5) stealing chattels, for which the penalty is double payment (Ex. 22:8);
(6) stealing and selling or slaughtering oxen or sheep, for which the penalty is five or fourfold (Ex. 21:37); and
(7) man-stealing for which the punishment is death (Mekh. Mishpatim 13; Tosef., bk 7:8–17).
Although stealing and robbery constitute violations of negative injunctions by overt acts, they are not punishable by *flogging, because they entail monetary sanctions and one species of sanction always excludes all others (Yad, Genevah 3:1, Sanhedrin 18:2). But flogging was administered to a thief where the thing stolen had already been returned by him prior to his conviction and he has committed the theft for purposes other than self-enrichment (cf. Minḥat Ḥinnukh, no. 224); or where the offender (e.g., an infant or slave) was not capable of owning property from which reparation could be made (Yad, Genevah 1:10). Where the offense of stealing is merged in a graver offense, as for example where stealing is committed by slaughtering on the Sabbath an animal belonging to another, the capital punishment for the violation of the Sabbath absorbs and nullifies any monetary liability for stealing (Ket. 31a; Yad, Genevah 3:1–2); but where the offense is completed before the graver offense is commenced, as where pork is first stolen and then eaten, the monetary penalties for the theft are incurred in addition to the liability to be flogged for eating pork (Ket. 31b; Yad, loc. cit.).
The main difference between civil and criminal misappropriation is that while the civil remedy is restoration in statu quo ante, the criminal sanction is the payment of "double" (Ex. 22:8) or quadruple or quintuple (Ex. 21:37). While restitution may be ordered even where no witnesses are available to testify to the theft and to the previous warning administered to the thief (see *Penal Law), as, for example, on the *admission of the thief himself, the sanction of double, fourfold, or fivefold payment may not be imposed on him otherwise than upon judicial conviction (Ex. 22:8) on the strength of the testimony of witnesses (bk 64b; Yad, Genevah 1:4–5). The purpose of imposing the penalty of double restitution has been said to be that the thief should lose what he had intended his victim to lose (Yad, loc. cit.), and the reason for quadruple or quintuple that he who not only steals, but also sells or slaughters the animal stolen, has proved himself a persistent offender (Tosef., bk 7:2).
Payments recovered as penalties for theft are paid over to the victim ("he shall pay double unto his neighbor": Ex. 22:8). Execution is levied on the chattels of the thief first; if these are found insufficient, then execution proceeds to the best of his lands (Ex. 22:4; bk 7a–b). If he has neither movable nor real property, then the court orders that the thief be sold into slavery ("if he have nothing, then he shall be sold for his theft": Ex. 22:2) and the proceeds of the sale be paid out to the victim; but no such sale is ordered where only the penalties exceeding the value of the thing stolen are irrecoverable: once restitution has been made, the court waits for recovery of penalties until the thief attains the means to make the payments (Kid. 18a). Nor is a woman thief ever sold into slavery (Sot. 3:8). As the thief is sold "for his theft" only (Ex. 22:2), he may not be sold where his value exceeds that of the thing stolen; but where the value of the thing stolen exceeds the proceeds of the sale of the thief, he remains indebted for the balance, which may be recovered from him as a civil debt if and when, after his release (Ex. 21:2; and see *Slavery), he acquires property of his own (Yad, Genevah 3:11–14). A thief sold for several thefts from different victims may be held in partnership by all of them, or the proceeds of his sale will be distributed among them pro rata (ibid. 3:16).
In later talmudic and post-talmudic times, the sale of thieves into slavery became, of course, obsolete. Already in the seventh and eighth centuries, convicted thieves were flogged (Halakhot Pesukot min ha-Ge'onim, no. 94), presumably because nothing could be recovered from them. Later, there are ever-increasing indications to the effect that thieves became a grave menace to society, not so much because of the monetary damage they caused within the community, but because of the ill-repute their misconduct brought upon the Jews at large: they were ostracized and expelled from their cities (see *Ḥerem), and delivered to non-Jewish authorities for adjudication and punishment (cf. e.g., Takkanot Medinat Mehrin, no. 265; Pinkas Hekhsherim shel Kehillat Pozna, nos. 1614 and 1655) quite apart from such routine punishments as floggings, *fines (Takkanot Medinat Mehrin, no. 263) and *imprisonment (Tashbeẓ 3:168) administered to them.
[Haim Hermann Cohn]
State of Israel
The law appertaining to theft and robbery is the Criminal Code Ordinance of 1936. The Ordinance is based on the rules of English criminal law and provides for a maximum penalty of three years imprisonment for theft while robbery, which is defined as the use or threat of force in the course of theft, is punishable by 14 years imprisonment.
Distinction between Theft and Robbery
The Talmud states that the distinction between theft and robbery is that the thief steals surreptitiously while the robber takes overtly and by the use of force (bk 79b). In the Gali case (Gali v. State of Israel (40 (4) pd 169, 1986), the defendant approached the victim and, without warning, snatched a box containing jewelry worth half a million dollars from the victim's hand. The defendant then quickly escaped and disappeared. The issue in this case was how to classify this act. In his opinion, Justice Elon discussed the question in terms of both Jewish Law and the Israeli statutes, arriving at the conclusion that, under both systems, such an act constitutes robbery, even though forceful power was not used in the taking. In such instances, he held, the deciding factor in classifying the act is the victim's perception. If the victim is aware of the snatching, the act is robbery, as there is perforce an element of violence, even if slight. If the victim is unaware of the snatching, as when he or she is pick-pocketed, there is no element of violence, and the act is considered as theft.
The opinion commends the lower court judge, and the attorney who appeared there, for relying on Jewish Law, in compliance with the Foundations of Law Act, 1980. The opinion states:
The laws of theft and robbery in Jewish Law are numerous, and many of them are particular to this legal system and extremely instructive. Concerning the question at hand, the position of Jewish Law is concise and well defined. Let us examine Maimonides' illuminating words in his Mishneh Torah:
Who is a thief? One who takes someone's money secretly, without the knowledge of the owner, such as one who puts his hand into the purse of his neighbor and takes money without the owner seeing it, and similar cases. But if he takes it openly and publicly by force, he is considered not a thief, but a robber (Yad, Genevah 1:3).
Who is a robber? One who takes someone's money by force, such as snatching an object from his hand (Yad, Genevah 1:3)
The opinion concludes with the following remarks:
These words of Maimonides, which summarize the position of Jewish law as it emerges from the talmudic sources (bk 57a, 79b), and as it was subsequently formulated in the codes (Sh. Ar., Ḥm 348:3, 359:7) define the act of robbery as theft which includes an element of force… This occurs when the act is done openly, i.e., when the victim from whom the object is snatched is aware of the snatching.
Penalties for Theft
Under Jewish law, there is a penalty of double and sometimes quadruple or quintuple payment for theft. In post-talmudic times, other penalties were imposed, as the situation required.
The case of Anon. v. State of Israel (35 (4) pd 438, 1981) dealt with the proper punishment for acts of embezzlement that occurred over a three-year period. The defendant was a member of the foreign service of the State of Israel who embezzled a sum of $80,000 dollars by means of an elaborate scheme of fraudulent practices. Upon conviction, the trial judge sentenced the defendant to imprisonment for three years. The defendant argued before the Supreme Court, inter alia, that prior to these acts he had been a constructive member of society, that he had returned the embezzled funds, and that he would not commit such acts in the future. Therefore, he argued, a prison sentence should not be imposed on him.
In his opinion, Justice Elon asserted that, "Crimes in which the criminal takes advantage of the authority and trust reposed in him by deceiving those who relied upon him are counted among the most serious crimes which undermine the foundations of civilized society." In particular, he added, "One who embezzles the funds of the general public is guilty of a more serious crime than one who embezzles funds belonging to an individual."
Jewish law emphasizes the distinction between stealing from the public and stealing from a private individual: "Theft from the public is more severe than theft from an individual, for one who steals from an individual can compensate him by returning what he has stolen, while one who steals from the public cannot compensate them by returning what he has stolen" (Tosefta, bk 10:14, ed. Zuckermandel). In light of the great damage to the public, the serious nature of the defendant's acts, and in order to deter potential criminals, the Supreme Court upheld the sentence imposed by the lower court.
The Rabbinic Law of Robbery
"The Rabbinic Law of Robbery" refers to various acts which are considered theft by force of rabbinic enactment, even though in terms of biblical law these acts did not constitute theft, and were not prohibited. A prime example of the rabbinic law of robbery is money taken by means of gambling. Under biblical law, taking such winnings is not theft, since the loser has consented to the taking. However, the Rabbis enacted that, inasmuch as the winner takes money without giving anything in return, and there is actually no unreserved consent by the loser, such taking is regarded as theft.
One of the differences between robbery under rabbinic law and robbery under biblical law is that, in the former, a court does not have the power to effect a restoration of the money taken (Yad, Gezelah va-Avedah 6:16).
A responsum by *David ibn Zimra (Resp. Radbaz 1:503) explains that in such cases, none of the parties acted with the intent of following the rabbinic law. In this respect, the rabbinic law of robbery differs from other rabbinic enactments, such as the methods instituted by rabbinic law for acquiring property, in which the parties act in reliance on rabbinic law and its enforcement. In such instances, a court enforces the enactments of rabbinic law.
David ben Solomon ibn Abi Zimra (Radbaz) ruled that the rabbinic law of robbery is subject to the sanction of a ban as well as other religious and moral sanctions.
For example, a gambler who lives by gambling is disqualified as a judge or a witness in court, and in order to have the disqualification removed he must pay back or give to charity the money he has accumulated from his gambling (see *Gambling).
[Bernard Auerbach (2nd ed.)]
Robbery by the State
Halakhic authorities expanded the application of the law governing robbery, so that in addition to the private law concerning robbery of one individual by another, the law also included robbery from the individual by a public authority, as a matter of constitutional and public law.
In connection with the doctrine dina de-malkhuta dina ("the law of the state [ lit. the kingdom] is law"), by which the halakhah acknowledges the binding nature of the laws of the state, a basic distinction was established. This doctrine applies to the expropriation of property by the king under general legislation that applies to all inhabitants of the state equally and in a non-discriminatory manner. Such expropriation is within the king's power. But the doctrine does not apply if the expropriation does not conform to a general law promulgated by the state, and such a situation is considered as theft.
Maimonides states (Yad, Gezelah va-Avedah 5:14): "The principle of the matter is this: Any law enacted by the king that applies generally and not only to a single individual is not robbery; but whenever he takes discriminatorily from a particular individual only, and not by law applicable to everyone, he acts lawlessly against that individual, and this is robbery."
Maggid Mishneh (by *Vidal Yom Tov of Tolosa, fourteenth century) comments: "The law of the land is law, but thievery by the 'land' is not law." The practical application of this distinction mainly concerns whether one may derive any benefit from property expropriated by the government, such as purchasing it. If the property has been taken lawfully by the state, one may obtain the property and benefit from it. But if it has been taken unlawfully, by thievery, it may not be obtained or used, "for anyone who does these or similar things strengthens the hands of law violators." (Yad, Gezelah va-Avedah 5:1; Sh. Ar., Ḥm 369).
Similarly, R. *Isaac b. Sheshet Perfet (Resp. Ribash ha-Ḥadashot, 9) ruled that a fine levied against all Jews in a particular locality, due to the acts of a few Jews who were guilty of monetary fraud, was "utter robbery," as it was collective punishment. This could not be seen as falling under the rubric of "the law of the land is law" in the same way as does ordinary tax law.
Robbery by the Community
From the 11th century onward, with the rise in the authority of the kehillah (the Jewish community) in the various diasporas, the monetary relationship between the individual and the community became a subject of discussion. Responsa on this question emphasize that unlawful seizure by the community of individual property is robbery.
A responsum by the halakhic authority of 12th-century Mainz (Resp. Or Zaru'a, 222) rejected the community's claim that it may require the members of the community to pay the taxes assessed against them, without giving them the opportunity to declare under oath the value of the property that they possess. This ruling rested on the ground that the community is subject to the same laws concerning robbery as the individual. As the community may not rob the individual, the communal enactment was therefore void.
The responsum relies on the talmudic dictum, "Does the fact that they are many give them a license to be robbers?" This maxim was stated to support the rule that the public may not establish a path through the property of an individual without his consent (bb 100a).
A similar ruling concerning the obligation to pay a tax (Resp. Maharam of Rothenburg, ed. Prague, 106) held that where it is clear that a tax assessment is incorrect, we do not apply the principle that the tax payer must first pay and only afterwards litigate his right to a refund. Maharam also relied on the Talmudic dictum referred to above, and concluded that the arbitrary infringement by the community on the individual's rights constitutes robbery.
A responsum by Ribash (Resp. Ribash, 477) held that a community may not require an individual to pay a tax that was levied to cover expenditures incurred before the individual became a resident of the community. Ribash concluded that such a requirement would entail robbery. The community has no authority to adopt an enactment that would unjustifiably take an individual's property, as "the public may not legislate to rob others" (see *Takkanot ha-Kahal).
The Bible makes no distinction between the terms ḥamas and gezel (robbery). God tells Noah, "the end of all flesh has come before me, for the earth is filled with ḥamas on account of them" (Gen. 6:13). The Sages and biblical commentators interpret ḥamas to refer to robbery. The prophets often referred to ḥamas in conjunction with the term shod (robbery, plunder). However, the two terms were differentiated in the tannaitic period and the term ḥamas was used to connote an act that borders on robbery, although biblically permitted.
The Babylonian amoraim interpreted the term ḥamsan to refer to one who forcefully takes someone else's property against his will, but pays him for the property (bk 62a). The Jerusalem Talmud states that a ḥamsan is one who intentionally steals property that is worth less than a perutah, so that a court will not hear the action (tj, bm 4:2)
The act of a ḥamsan is not robbery under biblical law, but it is a violation of the commandment, "You shall not covet" (Yad, Gezelah va-Avedah 1:9, cf. Rabad's gloss, ad loc.). However, the act constitutes robbery under rabbinic law. A ḥamsan may therefore not be a witness, although he is competent to be a witness under biblical law (Sanh. 25b; Yad, Edut 10:4).
If the victim of an act of ḥamas states that he consents to transfer the property to the ḥamsan or he indicates this by his conduct, the transfer is legally valid (see *Ones). However, if the victim does not so state or indicate, the transfer is invalid. According to some halakhic authorities, a transfer under compulsion is invalid only under rabbinic law; therefore, a court does not have the power to effect a restoration of the property (Biur ha-Gra, Sh. Ar., Ḥm 205:1)
[Menachem Elon (2nd ed.)]
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