The case of 5:21,22 seems to be that initially the guilty person swears that he/ she is the owner of the particular item and as the claim cannot be disproved, the guilty party is able to possess the disputed item. Afterwards the guilty party comes forward and admits his/ her crime based on the different possible actions listed in the verses (see Rashi on 5:22,23). The person then has to bring a sacrifice since he/ she swore falsely, return the item and pays a 20% penalty. The fine is less than the usual penalty of 100% when one does not admit to one's guilt (Shemot 22:3,6-8).
One curiosity about this list of criminal actions in 5:21,22 is that the list does not include theft. Milgrom (1991, pp. 335,336) follows Chazal's distinction between theft and robbery, that theft is committed secretly while robbery is done openly with force (see Shulchan Aruch, Choshen Mishpat, 348:3 and 359:7), and suggests that theft is not included since the thief is unknown so he/ she cannot swear. Milgrom notes that there are some cases where the thief is known, but he claims that the beginning of 5:24 refers to "anything else," which covers "the limited cases of theft wherein the identification of the alleged thief does take place."
Westbrook (1988, pp. 17-22) rejects this approach since the finder of a lost item is included in the list, but the finder of a lost item is also not always known. The Torah could have listed the case of theft where the thief is known just like it does by the finder of the lost item.
Another question of the list of five criminal offenses is gezel. The other four actions (deposit, pledge, defrauding and finding a lost item) are similar that the guilty person legally obtained possession of the items, which allows the person to make his/ her initial claim that he/ she is the true owner of the disputed item. On the other hand, gezel, robbery, seems to be completely different. The crook forcibly obtained possession of the item, which seems to preclude him/ her from being able to claim ownership of the item. This incongruity suggests that the term gezel needs to be re-defined.
Buchler (1928, p. 378) reviewed the word gezel in all of Tanakh and concluded, "It seems that both robbery (gezel) and oppression (oshek) were acts of injustice supported by the application of some law and legal claim, the one a legal appropriation of the helpless man's produce or field or house on a judgment of the court of justice, the other an exaction of money or a pledge, or the cheating of a helpless hired servant of his wages on some justification advanced." As to why theft is not recorded here, Buchler (p. 375) writes, "robbery seems to include theft, and any form of a dishonest removal of the neighbor's property." Westbrook (p.16) rejects this approach since the definition of gezel "becomes impossibly wide,… one wonders what function is left to theft."
Westbrook (pp. 23-38) writes that "gezel always involves the taking away of property," but as opposed to theft, it also involves an abuse of power. "The victim has little chance of obtaining redress from the robbers through the normal judicial process since a member of the establishment wrongfully takes advantage of his office or economic power in order to take property from the poor and the weak." He explains that the penalty here of gezel (20%) is less than by theft (100%) since here eventually the guilty person confessed, and the lower penalty is to encourage people to confess. He writes that theft is not included in the criminal actions in 5:21,22 either because the list is not exhaustive or because the case involves pillars of the community who can abuse their power, while thieves lack this power.
Westbrook's approach is too specific. The case here is not only by "pillars of the community" who can abuse their power, but refers to anybody who can claim in court that the item in question is his. I would vary Buchler's and Westbrook's suggestions.
Following Buchler, the term gezel in the Torah is the case where one steals an object, whether violently or not, and then claims to be the rightful owner of the object. Gezel is included in 5:21,22 because it involved a claim of ownership which enabled the person to swear falsely, and the common denominator of all the offenses int the verses is that the guilty party initially claims that he/ she is the true owner of the disputed object. On the other hand, theft, genevah, is when a person takes an item but is unable to make a claim of ownership since the owner of the item is able to prove that he/ she indeed is the rightful owner, and hence the thief has to pay a fine of 100%. The thief cannot swear and/ or his/ her swearing is irrelevant, and hence the case of theft is not included in 5:21,22. I believe this understanding of the words gezel and ganav, is supported by the various instances where the terms appears in the Torah.
Bereshit 21:25 records that Avraham accused Avimelekh's servants of gezel, that they stole his well. After this accusation, Bereshit 21:30 records that Avraham gave sheep to Avimelekh as proof that he dug the well. The insinuation of the gift is that the ownership of the well was in dispute, and this would explain Avraham's use of the term gezel that Avimelekh's servants had claimed ownership of the wells.
Bereshit 31:27-31 records that Lavan accused Yaakov of theft, (also 31:20,26), of both his daughters and his gods and then Yaakov stated that he was afraid that Lavan was going to steal, gazel, his wives (Lavan's daughters) from him. Seforno (on Bereshit 31:31) explains that this verse is based on Bereshit 31:43 where Lavan claimed his daughters as his possession. Buchler notes that in Bereshit 30:26 Yaakov asked Lavan for permission to leave and take his wives and his children even though he already worked for them. This suggests that Lavan still had some claim over his daughters and his grandchildren, and this is what Yaakov referred to in Bereshit 31:31.
Lavan used the word ganev since it was obvious to him that he was the "owner" of his daughters and of his gods, that Yaakov could not make any claim on them. However, from Yaakov's perspective Lavan was the crook, and as Lavan was going to claim ownership of Yaakov's wives, this was a case of gezel. Note in 31:39, Yaakov used the word ganev by other people who would have stolen Lavan's sheep, where Lavan could have proven ownership of the sheep.
Bereshit 44:8 records the word, ganev, by the brothers "theft" of Yosef's cup since they could make no claim of ownership of the cup, and the brothers did not try to claim ownership of the cup.
In the Decalogue (Shemot 20:13 and Devarim 5:17) the word ganev is used since this is the more common case, where the victim can prove that he is the owner of the item. Similarly all cases of kidnapping (Bereshit 40:15, Shemot 21:16, Devarim 24:7) use the term ganev, as the thief cannot claim ownership of the victim. Shemot 21:37, 22:1,6,11 all use the word ganev since these are the common cases where the owner can prove he owns the animal, and this is why the thief pays at least double the value of the stolen animal.
Vayikra 19:11-13 refers both to genevah and to gezel. 19:11 records the case where one stole, ganev, and cannot prove ownership of the time, but the person lies anyway. (If the verse had recorded the word gezel, then the continuation of the verse, not to lie, would have been tautologous since gezel involves a false claim.) 19:13 records the word gezel in conjunction with oshek (as in 5:21) and withholding wages, as in both cases the guilty person has some claim to the item.
Devarim 28:29,31 record the word gezel in reference to several curses. Devarim 28:29 records a curse that a person will feel hopeless like the person who had been gazul, since by gezel the guilty party claims ownership of the item, and the rightful owner has no hope of getting the item back, unless the crook confesses, as in 5:23. Yet, by the case of genevah, the crook can still have hope as he/ she can prove his/ her ownership of the item. Similarly, Devarim 28:21 records a curse that a person's donkey will be stolen (and the thief might claim ownership of the animal), but the crucial point is that the person has no hope of getting it back, which is the case of gezel.
(In Tanakh, see Buchler above, the idea of gezel also seems to be that the crook claims ownership of the item and hence the victim has no hope. For example, Yechezkel 32:15 calls on the crook to return the gezel since the victim cannot prove ownership of the item. Mishle 22:22,23 says not to legzal as G-d will help the victim, as once the crook can claim ownership the victim cannot win in court, see also Tehillim 35:10. Kohelet 5:7 uses the word gezel in conjunction with perverting justice since the gezel involves the false claim of ownership which is a perversion of justice.)
Accordingly, my understanding is that gezel involves stealing and claiming ownership while by theft the crook cannot make a viable claim of ownership to the item. Following Westbrook, to encourage the crook to confess, by gezel the penalty is reduced to paying a 20% fine, but if the rightful owner can prove his ownership then the crook would pay at least a 100% fine. In addition, if the crook swears falsely to back his/ her false claim of ownership then he/ she has to bring a korban asham when he/ she confesses.
Bibliography:
Buchler, A. 1928, Studies in sin and atonement in the rabbinic literature in the 1st century, London: Oxford University Press.
Buchler, A. 1928, Studies in sin and atonement in the rabbinic literature in the 1st century, London: Oxford University Press.
Levine, Baruch A., 1989,
Leviticus: The JPS Torah Commentary, Philadelphia
Milgrom, Jacob, 1991, 2000, 2001, Leviticus: The Anchor Bible, New York: Doubleday.
Westbrook, Raymond, 1988, Studies in biblical and cuneiform law, Cahiers de la revue Biblique, 26, Paris: J. Gabalda
Milgrom, Jacob, 1991, 2000, 2001, Leviticus: The Anchor Bible, New York: Doubleday.
Westbrook, Raymond, 1988, Studies in biblical and cuneiform law, Cahiers de la revue Biblique, 26, Paris: J. Gabalda
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