1) THE DIFFERENCES BETWEEN A JEW AND A KUSI WHO STEAL
QUESTION: The Beraisa teaches that a Kusi is Chayav Misah not only for an act of Gezel, but even for an act which is similar to Gezel ("ka'Yotzei Bo") but which is not actual Gezel. What is an act which is similar to Gezel? Rav Papa suggests that it is an act of stealing something worth less than a Perutah ("Pachos mi'Shaveh Perutah"), which a Jew normally forgoes ("Mochel") when stolen from him. The Gemara asks why the Beraisa says that when a Kusi steals less than a Shaveh Perutah from a Jew, he is Chayav Misah; if the Jew is Mochel, then why is the Kusi punished with Misah? The Gemara answers that at the moment of the theft, the Jew experiences distress, even though he is later Mochel the object. Because of the distressed he caused, the Kusi is punished with Misah for stealing from a Jew.
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?
Moreover, the Gemara later (end of 59a) clearly implies 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 why a Kusi is liable is that Kusim are not "Lav Bnei Mechilah," they do not pardon a theft of less than a Shaveh Perutah. That Gemara itself needs further elucidation, because the Beraisa here says that a Kusi is liable 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) is apparently bothered by this question. Rashi answers that the verse in Vayikra (5:22) teaches 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. Accordingly, it is logical to assume that the Torah does not include theft of 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 never is obligated to return a stolen object, since he is Chayav Misah for stealing (as the Talmidim of Rav learn from a Meh Matzinu). The rule of "Kam Lei bid'Rabah Minei" -- which apparently applies to a Nochri just as it applies to a Jew, according to Rashi -- exempts the Kusi from the obligation to pay for what he stole, since he is 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 to each other (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 consistent with 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 that the Gemara means 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 Beis Din does not administer two punishments. This is consistent with the Girsa of our text of the Gemara there in Makos.
TOSFOS there (16a, DH Hasam) understands the Gemara differently. Tosfos understands that the Gemara means that since a person still has the opportunity to 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 killed for his transgression. On the contrary, if a Nochri is commanded to perform Hashavah, then he 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 is impossible to kill a Nochri for an act of theft, since he can always return the stolen object. Therefore, the verse which teaches that a Nochri is killed for Gezel also teaches that the Nochri's Gezel is not "Nitak l'Aseh" for Hashavah.)
The Gemara later (59a) teaches the reason for why a Kusi is liable 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 the Yad Ramah understands the Mitzvah of Hashavah as Tosfos in Makos does.) 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. Since 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, both cases constitute acts of "Lo Sigzol."
The Gemara rejects Rav Papa's answer by asking why the Beraisa calls it only "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 liable for stealing less than a Shaveh Perutah from another Kusi because the victim is not Mochel, it is giving a reason only 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; 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 71b, DH v'Iy.)
(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 apparently understands that the Shi'urim that apply to Isurim for Jews do not apply for Nochrim. This will explain why a Jew does not transgress the Isur of Gezel when he steals less than a Shaveh Perutah, while a Nochri does transgress. Why, though, do the laws of Shi'urim not apply to the Isurim of Bnei Noach?
The RADVAZ there explains that all Shi'urim are learned through a Halachah l'Moshe mi'Sinai (Sukah 5b). The Rambam maintains that anything given over to Moshe Rabeinu at Sinai cannot apply to a Nochri, since the Isurim of Bnei Noach existed before Moshe Rabeinu received them at Sinai (and it is assumed that the Shi'urim were not included in the oral tradition of the seven Mitzvos which were given to Bnei 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 liable for stealing less than a Shaveh Perutah only because a Kusi does not forgo an object worth less than a Shaveh Perutah. Aside from that difference, 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 question 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 a Jew is prohibited from stealing 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 to Chulin 33a, end of DH Echad.) The Gemara later (59a) -- which says that the Torah is more stringent with a Kusi because he is not Mochel -- is discussing only the obligation of Hashavah (as explained above according to the Yad Ramah).
Another way of understanding the Rambam is based on the principle that when a Nochri transgresses any Isur, he may be killed because "Azharasan Zo Hi Misasan" (as the Gemara here states). This means that for a Nochri, any transgression inherently includes the death penalty. 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 the Gemara in Yoma (73b) teaches in the name of Rebbi Yochanan, 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, a transgression of any quantity warrants the death penalty, it is obvious that the Shi'urim do not apply to him, because even when he eats less than a Shi'ur he transgresses the prohibition.
According to the Rambam, when the Gemara here 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 should 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 Jew.