by Rabbi Berach Steinfeld
In Vayikra 5:23 the posuk teaches us that one should return an item that he or she stole. What happens if a person stole and then paid the money back, is he kosher for eidus right away? The Rambam in Hilchos Eidus 10:4 writes that despite the fact that the person returned the money after stealing, he would still be passul for eidus.
The Tur in Choshen Mishpat 34 asks, why does the person not become kosher for eidus once he returned the money? The Tur answers that since the person paid the money because he was forced by Bais Din, and the person did not do teshuva willingly, the person is therefore passul for eiidus. The Kesef Mishna says that this tirutz of the Tur is so simple, what is the chiddush? The Kesef Mishna explains the Rambam by saying that even if the person returned the money via his own free will and he was not being forced by Bais Din, the person would still not be kosher for eidus. We learn this from the Gemara in Sanhedrin 26b where the Gemara says that a person is not considered Kosher for eidus unless he did teshuva, in addition to returning the Ribbis that he took.
According to the Shita of the Tur that one is not kosher L’Eidus unless he returned the item by himself, without the coercion of Bais Din, why is the situation different when it comes to Ribbis and the person needs to do teshuva? The Tur differentiates that when it comes to Ribbis and the person is used to doing it, teshuva is required, whereas when it comes to stealing one time, it would be sufficient that he returns the stolen item on his own. The Bach argues with the Tur and says that even if he returns what was stolen via coercion of Bais Din he is kosher for eidus. This would fall under the category of once a person gets malkus he is considered achicha and is a good Jew; so too, when a person returns the item the Torah told him to return, he is a good Jew.
In the Sefer Har Eivel he says that he thinks that every person should command his bnei bayis that when he dies some money should be given to the rabbim as a kapara if he stole from people and he does not know to whom to return the money. The Gemara in Bava Basra says that most Jews are nichshal with gezel and the Gemara in Bava Kama 94 says that if you stole and you don’t know from whom you stole you should do “tzorchei rabim.” Therefore, it is a good practice to leave a tzavaah.
There is also no problem of “Ein adam meisim atzmo rasha” because that is davka when he would bring chullin as a korban, but when it comes to a person doing teshuva, then aderaba, it is important for a person to be misvadeh and pay it back!
May we be zocheh to keep the Halachos of Gezel and value other people’s money.
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