Prohibition of Theft
In the criminal law, theft (also known as stealing) is the illegal taking of another person's property without that person's freely-given consent. As a term, it is used as shorthand for all major crimes against property, encompassing offences such as burglary, embezzlement, larceny, looting, robbery, trespassing, shoplifting, intrusion, fraud (theft by deception) and sometimes criminal conversion. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny.
Someone who carries out an act of or makes a career of theft is known as a "thief".
Theft in Jewish Law (for Noahides)
The Hinnuch, Aaron HaLevi of Barcelona
The Hinnuch, Aaron HaLevi of Barcelona, in his compendium of the six hundred thirteen commandments, under Commandment 424 (Io titaveh) which grows out of the Deuteronomy 5:18 verse "Do not desire you neighbor's home," writes as follows:
The prohibition against desiring another's property applies at all times, in all places, to both men and women, and to all mankind. This is so because it is a part of the prohibition against stealing, which is one of the Seven Laws that all mankind is to observe. Make no mistake about the enumeration of the Seven Laws of the Sons of Noah - these being well known and recorded in the Talmud - for they are but categories and they contain many particulars. Thus, you find that the prohibitions relative to sexual relations are grouped into one command, which has, however, a number of specifics, such as the prohibition concerning one's mother, or a mother's sister, or a married woman, or a father's wife, or homosexuality, or beastiality. Similarly, in the realm of Idolatry, they have but one command which has many parts, for they are like Israelites in this realm…
Likewise then, we say that since they are commanded concerning Theft, they are also commanded concerning. The deterrents to its transgression…
Now, it is not my intention to state that the Noahite is admonished against this [desiring] under a distinct imperative - for he is not subject to specific imperatives like the Israelite - but that he is admonished generally concerning the Seven Laws, as if to say, for example: "Let no man approach his close relative, neither his mother, nor his sister, etc." Similarly, concerning Idolatry, he is prohibited in a general sense. And thus too concerning stealing, it is as if he is told: "Do not steal rather avoid stealth completely," and not to covet is part of not stealing. But it is not thus for the Israelite… So it is that even when we are already subject to a command (in a general way] we are also bound by specific positive and negative commandments…
Rabbi Aaron Lictenstein
After discussing the Seven Laws as Categories, Rabbi Aaron Lichtenstein attempts define which of the 613 laws, based on Maimonides' Book of Divine Commandments, would fall under the Noahide Prohibition of Theft and therefore apply to Noahides:
By applying Aaron HaLevi's reasoning, it becomes apparent that a number of the 613 commands are implicit in the single Noahic law on Theft. These are:
- 1. "...against stealing." Negative 244 (lo tignovu).
- 2. "...against committing robbery." Negative 245 (lo tigzol).
As generally understood, Negative 244 refers to taking via stealth; Negative 245 refers to taking via brazen force. Thus, there is no overlap between these two dicta: in a situation where one is applicable the other necessarily is not. However, J.F. Perla points out that this is not so according to Isaac Alfasi (RIF) and to Solomon ben Adereth (RASHBA), for according to these writers Negative 245 is violated in every instance of the unlawful removal of another's property. Consquently, one who takes another's goods by stealth violates both Negative 244 and Negative 245. Yet, each has its individual place in the 613, because special situations exist where only one is applicable. The situation wherein only "...against committing robbery" applies is where the crime is committed brazenly and by force. The situation wherein only "...against stealing" applies is the one described in the Talmud, Baba Kama 27b:
Ben Bagbag says: Do not enter onto another's property stealthily to take even your own object, test you be as a thief. Instead, confront him with force and say, "It is my own object I take."
According to this view, "...against stealing" is directed at the method - a method which utilizes the absence of the owner for obtaining an object - regardless of who owns the object. However, "...against committing robbery", which is not being transgressed in the Baba Kama example, is directed at every unlawful removal of another's property, regardless of method.
That Noahide legislation prohibits theft in each of the special situations mentioned above is asserted by the Tosefta, Aboda Zara 9:4, "How does [a Noahite or an Israelite] transgress Theft? It he steals or robs…" It seems likely – since each term gets a speciaI mention in the Tosefta – that for the Noahite, too, both the removal of another's property (i.e., robbery) and stealth as a method (i.e., stealing) is covered by the prohibition on Theft.
- 3. "...against shifting a landmark." Negative 246 (lo tasig gebul).
This is merely a specialized case of theft which involves the adding to one's own real property by placement of the boundry marker deeper into the neighboring property. As such it certainly applies to the Noahic statutes.
- 4. "...against cheating." Negative 247 (lo taashok).
This is directed at the non-payment of a worker's salary, the non-payment of a loan, and the non-return of a borrowed object. The common features here are: (a) that the item under dispute reaches the hands of the cheat legally, (b) that the wrongful act is essentially one of omission instead of commission. Even so, Noahide law prohibits such an act, for in spirit it constitutes theft.
- 5. "...against repudiating a claim of money owed." Negative 248 (lo tekahashu).
This denial refers to a formal refusal to repay any of the obligations mentioned in the preceding Negative 247, even if accompanied by a silent resolve to eventually repay. That the Noahite is restricted in this fashion seems likely, based on the line of reasoning initiated by Aaron HaLevi. As stated, "…against desiring" applies to the Noahite because desiring tends to lead to stealing. Then similarly, and a fortiori, the repudiation of a claim applies because it leads to non-payment.
- 6. "...against overcharging." Negative 250 (lo tonu).
The implication here is that when the overcharge or underpayment is exorbitant, the transaction may legally be dissolved. Nahmanides makes specific mention of overcharging as being applicable to the Noahite. In addition, Aaron HaLevi's explanation of this law - in terms of it being natural and rationally compelling - suggests Noahic involvement. He writes:
The basis for this imperative is well known. For it is understandable, and one would expect that this rule be on record, for it is inappropriate that a man gain by knavery instead of labor.
- 7. "...against coveting." Negative 265 (lo tabmod).
- 8. "...against desiring." Negative 266 (lo titaveh).
Coveting, as used here, involves a reaffirmation of the desire by means of an act, such as a plea to the owner asking repeatedly that he part with the item in question. Desiring, however, involves the mere craving for another's property, even when no overt steps are taken. Aaron HaLevi's lengthy statement on desiring, quoted above, certainly applies to the more overt law on coveting.
- 9. "...a laborer shall be allowed to eat of the fruits among which he works [under certain conditions] Positive 201.
The landowner is stealing from the worker, in effect, when he does not permit him this benefit. That this convention holds for Noahite workers and landowners can be seen from a discussion in the Talmud which, in attempting to reconstruct a specific case of larceny with application for both Noahites and Israelites, asserts:
When did this vineyard-worker eat of the grapes? If he ate them in connection with the work of harvesting - he is permitted to. If he ate them in connection with other work such as pruning - it constitutes ordinary larceny...
- 10. "...against a laborer eating of such fruit [when certain conditions are not met]." Negative 267.
- 11. "...against a laborer taking of such fruit home." Negative 268.
The last two imperatives grow out of the special benefit granted to the worker in Positive 201 above, but they are directed at cases that essentially constitute ordinary theft. As such, they qualify for enumeration under Noahic Theft.
- 12. "...against kidnapping." Negative 243 (lo tignov).
Although Jewish law exacts the full capital penalty for this crime only when numerous technicalities are fulfilled, nonetheless each instance of kidnapping constitutes a basic infringement of this statute according to Maimonides, who writes: "Anyone stealing a human being violates lo tignov (Negative 243]..." This statement is in no way qualified by Maimonides. Qualifications that follow, for example that the victim shall have been sold for profit, are aimed at the applicability of a death penalty. Noahites are involved here, in that kidnapping is obviously but a type of theft, and Maimonides specifically mentions kidnapping among the acts which the Noahide law on Theft prohibits.
- 13. "...against the use of false weights and measures." Negative 271.
This is a specialized case of overcharging (Negative 250), and hence Noahites are to be implicated. The use of false weights and measures is designated a separate imperative so as, probably, to reinforce this prevalent aspect of Negative 250.
- 14. "...against the possession of false weights and measures." Negative 272.
Here we have an extension of the preceding Negative 271. As already established with regard to "against desiring," any extension of a Theft prohibition qualifies for Noahic inclusion.
- 15. "...that one shall be exact in the use of weights and measures." Positive 208.
This is the positive aspect of Negative 271, and therefore is included.
- 16. "...that the robber shall return [or pay for] the stolen object." Positive 194.
There are divergent opinions on whether or not Noahites are bound in this manner. While Rashi's opinion is that they are not, the Tosafists and Rabenu Hananel dispute him. This dispute revolves around the proper interpretation of the following dictum in the Talmud: "A Noahite is punishable by execution for [stealing] less than one pruta, and he need not return it." Rashi takes this to mean that the commandment on the return of a stolen object simply has no counterpart for the Noahite. The Tosafists, on the other hand, maintain that Positive 194 is part of Noahide law, and that only when a Noahite robs less than one pruta from an Israelite is the restoration of the object -not required. (This is so because Israelites have a convention to waive any claim of less than a pruta.) However, it is required whenever (a) the object is valued at a pruta or more, (b) whenever the victim is another Noahite or (c) whenever the object is still extant. Rabenu Hananel, too, indicates the applicability of Positive 194 in Noahic legislation. He limits the talmudic dictum, requiring no return, to Noahic larceny amounting to less than a pruta. He writes: "It need not be returned here because the Torah states only, 'He shall return the stolen goods which he robbed,' but when it does not legalistically constitute robbery, there is no requirement for return." In other words, biblical statutes can have applicability for Noahide law only when the usual legalistic technicalities involved are satisfied.
Theft in Noahide Law
The actus reus of theft is usually defined as an unauthorised taking, keeping or using of another's property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.
For example, if X goes to a restaurant and, by mistake, takes Y's scarf instead of her own, she has physically deprived Y of the use of the property (which is the actus reus) but the mistake prevents X from forming the mens rea (i.e. because she believes that she is the owner, she is not dishonest and does not intend to deprive the "owner" of it) so no crime has been committed at this point. But if she realises the mistake when she gets home and could return the scarf to Y, she will steal the scarf if she dishonestly keeps it. Note that there may be civil liability for the torts of trespass to chattels or conversion in either eventuality.
Theft in English law
Theft was codified into a statutory offence in the Theft Act 1968 which defines it as:
- "A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".
The five elements of the offence are defined sequentially in the Act:
- Section 2 dishonesty;
- Section 3 "appropriation" which occurs when the defendant wrongfully asserts the rights of ownership over the property. This can be by physical taking, but it will also include many different situations (i.e. a failure to return or omission) in which a person may have lawfully come into possession of the property and then keeps or uses the property in an unauthorised way;
- Section 4 "property" includes all personalty, i.e. land itself cannot be stolen but anything severed from the land (with the exception of wild flowers) can be stolen, as can intangible property such as a chose in action;
- Section 5 "belonging to another" requires a distinction to be made between ownership, possession and control:
- ownership is where a person is not legally accountable to anyone else for the use of the property:
- possession is where a person is only because it had been physically removed but there were two issues to be decided:
- did the car "belong to another"? The garage had a lien i.e. a "proprietary right or interest" in the car as security for the unpaid bill and this gave the garage a better right than the owner to possess the car at the relevant time.
- what was the relevance of Turner's belief that he could not steal his own property? The defence of mistake of law) only applies if the defendant honestly believes that he has a right in law to act in the given way. Generalised and non-specific beliefs about what the law might permit are not a defence.
- Section 6 "with the intent to permanently deprive the other of it" is sufficiently flexible to include situations where the property is later returned. For example, suppose that B, a keen football fan, has bought a ticket for the next home match. T takes the ticket, watches the match and then returns the ticket to B. In this instance, all that T returns is a piece of paper. Its value as a licence to enter the stadium on a particular day has been permanently lost. Hence, T steals the ticket. Similarly, if T takes a valuable antique but later repents and returns the goods, T has committed the actus reus with the mens rea. The fact that T's conscience forces a change of mind is relevant only for sentencing.
The maximum sentence in the Crown Court is seven years (section 7).
If the act of stealing is already complete before another comes into possession of the goods, this may be handling. For alternative charges involving deceptions, see the deception offences and the Theft Act 1978 which may overlap with s1 Theft. For the theft of motor vehicles with or without violence, see robbery, blackmail and TWOC.
Theft in Victoria - Australia
Theft is defined at s.72 of the Crimes Act 1958. The actus reus and mens rea are defined as followed;
Appropriation - defined at s.73(4) of the Crimes Act 1958 as the assumption of any of the owners rights. It does not have be all the owner's rights, as long as at least one right has been assumed(Stein v Henshall). If the owner gave their consent to the appropriation there cannot be an appropriation(Baruday v R). However, if this consent is obtained by deception, this consent is vitiated.
Property - defined at s.71(1) of the Crimes Act 1958 as being both tangible property, including money and intangible property. Information has been held not be property(Oxford v Moss).
Belonging to another - s.73(5) that property belongs to another if that person has ownership, possession, or a proprietary interest in the property. Property can belong to more than one person. s.73(9) & s.73(10) deal with situations where the accused receives property under an obligation or by mistake.
Intention to permanently deprive - defined at s.73(12) as treating property as it belongs to the accused, rather than the owner.
Dishonestly - s.73(2) creates a negative definition of the term 'dishonestly'. The section deems only three circumstances when the accused is deemed to have been acting honestly. These are a belief in a legal claim of right (s.73(2)(a)), a belief that the owner would have consented (s.73(2)(b)), or a belief the owner could not be found(s.73(2)(c))
Theft in the U.S.
For example, California consolidated a variety of common law crimes into theft in 1927, and now distinguishes between two types of theft, grand theft and petty theft. Grand theft generally consists of the theft of something of value over $400 (it can be money, labor or property), while petty theft is the default category for all other thefts. Both are felonies, but grand theft is punishable by a year in jail or prison, while petty theft is punishable by a fine or six months in jail. As for the older crimes of larceny, embezzling, and stealing, any references to them now mean theft instead.
In many states, grand theft of a vehicle is charged as "grand theft auto" (see motor vehicle theft for more information). This charge became the title of a popular series of video games about stealing cars (see Grand Theft Auto (series)).
Theft in Canada
Theft is dealt with by Part 9 of the Criminal Code of Canada which is the part that covers property crime. Section 322 in Part 9 creates a general definition of theft, while other sections such as section 326 (which deals with the theft of gas, electricity and telecommunication services) define special kinds of theft. According to the general definition in section 322 a person steals a thing if he or she takes or converts it fraudulently, without colour of right and with intent to deprive the owner of it, either permanently or temporarily. For the purposes of punishment theft is divided into two separate offences by section 334 depending on the value and nature of the goods stolen. If the thing stolen is worth more than $5000 or is a testamentary instrument the offence is commonly referred to as Theft Over $5000 and is an indictable offence with a maximum punishment of 10 years imprisonment. Where the stolen item is not a testamentary instrument and is not worth more than $5000 it is known as Theft Under $5000 and is a hybrid offence, meaning that it can be treated either as an indictable offence or a less serious summary conviction offence, depending on the choice of the prosecutor. If dealt with as an indictable offence Theft Under $5000 is punishable by imprisonment for not more than 2 years and, if treated as a summary conviction offence, 6 months imprisonment, a fine of $2000 or both.
Theft in Romania
By the Romanian Penal Code for theft (furt) a person can face a penalty ranging from 1 to 20 years.
Degrees of theft:
A: Theft (1 to 12 years)
When a person steals a thing, or uses a vehicle without permission and no aggravating circumstances applies.
B: Qualified theft (basically 3 to 15 years but there can be special cases when penalty range is from 4 to 18 years and even 10 to 20 years)
- Aggravating circumstances - 3 to 15 years: a) by two or more persons together b) by a person who detains a gun or a narcotic substance c) by a masked or disguised person d) against a person who is in impossibility of self defence e) in a public place f) in a public transportation vehicle g) during the night h) during a natural disaster i) by effraction, or by using an original or copyed key j) things belongs to the cultural patrimonium k) stealing official identity papers with intention to make use of them l) stealing official identity badges with intention to make use of them
- Aggravating circumstances - 4 to 18 years : a) stealing petrol based products directly from transportation pipes and vehicles or deposits b) stealing components from national electrification, telecomunication, irrigation networks or from any type of navigational system c) stealing a public alertation device d) stealing a public intervention vehicle or device e) when periclitating the safety of public transportation.
- Aggravating circumstances - 10 to 20 years : When the consequences are extremely grave and affects some public institutions or the material prejudice is over 2.000.000.000 ROL.
- Allen,Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
- Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
- Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
- Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
- Maniscalco, Fabio, Theft of Art (in Italian), Naples - Massa (2000) ISBN 88-87835-00-4
- Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7.
- Aaron HaLevi, Sefer HaHinnuch (based on the first Venetian edition of 1533, edited by Charles Chavel.) Jerusalem: Mosad Harav Kook, 1952, page 543. Translation is by the present writer. For a study of the authorship and importance of Sefer HaHinnuch, see Chavel's introduction. Also, Isidore Epstein, "The Conception of the Commandments of the Torah in Aaron HaLevi's Sefer Ha-Kinnuk," Essays in Honor of the Very Reverend Dr. J.H. Hertz. London: Edward Goldston, 1942. For background literature see, Abraham Chill, The Mitzvot - The Commandments and Their Rationale. Jerusalem: Keter, 1974.
- Lichtenstein, Aaron. "The Seven Laws of Noah". New York: The Rabbi Jacob Joseph School Press and Z. Berman Books, 2d ed. 1986
- The enumeration used here is based on Charles B. Chavel's English rendition of Maimonides' Book of Divine Commandments. London: Soncino Press, 1940. "Negative" or "N" stands for a negative commandment; "Positive" or '71 stands for a positive commandment.
- J. Fishel Perla, Saadiah's Book of Commandments. Warsaw, 1916, page 224, volume II.
- Also cf. Charles B. Chavel's remark in Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch). Jerusalem: Mosad Harav Kock, 1959, volume 1, page 543: "Thus the Noahite too may not take even his own item from another's property without consent of the court."
- However, Maimonides, in his Code, "Laws on Stealth" 7:11, maintains that only in the Holy Land does a violation of Negative 246 apply simultaneously with Negative 244 or Negative 245.
- See Maimonides, Code, "Laws on Kings" 9:9, "A Noahite is punishable for stealing ... for withholding a worker's pay - . ." Also see Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch), Charles B. Chavel, editor. Jerusalem: Mosad Harav Kook, 1959, page 192, on Genesis 34:13: "But He warned them concerning the laws of stealing, overcharging, cheating, and/or non-payment of salaries…" Also see Talmud, Sanhedrin 57a, near end of page: "Rather, the reference here is to one who withholds a workman's pay
- See note below
- Aaron HaLevi, Sefer HaHinnuch. (Chavel edition) page 424, Imperative 340.
- Just what these conditions are is the subject of a dispute to which Solomon ben Adereth, Nahmanides, and Maimonides are parties. Maimonides' view is not easily identified. Isaac Hurowitz seeks to spell out the various positions in: Maimonides, Sefer Hamitzvot (with notes and glosses by Isaac S. Hurowitz). Jerusalem: Zukerman Press, 1926, folio pages 254-5. Negative 267.
- Sanhedrin 57a.
- Maimonides, Code. "Laws on Stealth" 9:1,2
- Code. "Laws on Kings" 9:9.
- It is apparent that Jewish lawshows no tendency for avoiding duplication within the framework of the 613 commands. Thus it is that the use of false weights and measures gets special mention even though their use is already prohibited as an act of overcharging. Similarly, every violation of Negative 246 (". . . against shifting a landmark") is a simultaneous violation of Negative 244 ("against committing robbery"), as Rashi points out. (See Solomon ben Isaac, Commentary on the Pentateuch, Deuteronomy 19:14.) The seeming repetition may be designed to reinforce the prohibition of a criminal act in situations that are more common, as indicated above, or in situations that render the crime more heinous or insidious from a social point of view.
- Erubin 62a. Under Israelite law, no legal action can be initiated if the disputation involves less than a pruta (a small coin) or its value. (Ibid.) The mention of execution as the penalty for Noahic Theft - and for other violations of Noahic law - is explained by Benamozegh as follows: "La sanction penale que la loi noachide attache, selon le judaisme, au vol sous toutes ses formes ne saurait kre plus rigoreuse: elle va en effet jusqu'a la peine capitale. A notre avis, c'est IA un maximum dont la societe dispose pour se defendre dans les cas o6 elle le jugerait n6cessaire, mais il n'y faut pas voir le chetiment applicable indistinctement dans toutes les circonstances . . ." (Benamozegh, lsrael et L'Humar;W, page 702). Translation: "The penalty which Noahide Law, according to Jewish tradition, attributes to theft in any form could not be more rigorous. In effect it includes capital punishment. In our view this is the maximum which society has at its disposal for its defense when necessary. But one is not compelled to see it as the punishment applied in all circumstances."
- Rashi, "Commentary," Erubin 62a: " 'He need not return it' because the [Leviticus 5:23] verse, 'He shall return the theft,' applies for the Israelite, but not for the non-Jew who - because he is subject to sentencing – need not repay."
- Tosafoth (Marginal Commentary on the Talmud), Erubin 62a, paragraph "The Noahite." Cf. A.I. Kook, Responsa Mishpat Kohen. Jerusalem: Weiss Press, 1935, volume 1, page 291, where a simplified view of the Tosafists' position is presented, which omits points (a) and (b).
- Rabenu Hananel, "Marginal Commentary on the Talmud," Erubin 62a.
- California Penal Code Section 486. For the entire portion of the Penal Code covering theft, see Sections 484 through 502.9 at Findlaw.
- California Penal Code Section 487.
- California Penal Code Section 488.
- California Penal Code Section 489.
- California Penal Code Section 490.
- California Penal Code Section 490a.
- See Rummel v. Estelle, Template:Ussc (upholding life sentence for fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses) and Lockyer v. Andrade, Template:Ussc (upholding sentence of 50 years to life for stealing videotapes on two separate occasions).