Rabbi Meir Orlean
Zev had received a new bike as a gift and rode it to school daily.
One of his classmates, Shlomo, was in a difficult situation. His family was suffering financially and he was dealing with personal issues.
A few days later, when Zev was preparing to ride home, he saw that his bike was gone! He waited to see if it would turn up, but it did not. Could it be someone stole the bike? he thought.
Two weeks later, Shlomo approached Zev. “I apologize; I stole your bike,” he said. “I’d like to return it to you.”
“Please do,” said Zev. “I wouldn’t have expected this of you.”
“It’s a long story,” said Shlomo, “but forget about that. The point is that I brought it back.”
Zev examined the bike. “The gear is damaged,” he pointed out. “The bike was brand new!”
“I know; it got a little broken when I rode it,” Shlomo said. “It’s still usable. I’ll pay you the difference; you can probably replace the gear.”
“I don’t want a broken bike, even if it’s only slightly broken,” answered Zev. “You stole a bike that was intact, and I expect you to return an intact one. You should pay me to replace the bike!”
“Why should I pay for a bike, when yours is still usable?” argued Shlomo. “This is your bike; I haven’t changed it.”
“Changed or not — it’s not what you stole!” declared Shlomo. “I want back what you stole: an intact bike!”
“This is what I stole!” retorted Zev. “If I pay to replace the bike, that’s definitely not what I stole.”
“I see we’re at an impasse,” said Shlomo. “Let’s take the issue to Rabbi Dayan.
“Most certainly,” replied Zev. “Let’s go!”
The two approached Rabbi Dayan in his beis medrash. “We have a question,” Zev said. “Shlomo stole my bike and broke the gear slightly. Can he just return it, or must he pay to replace the bike?”
“A thief is obligated to return the stolen item, as it says: ‘He should return the theft that he stole’” (Vayikra 5:23), replied Rabbi Dayan. “If he has the item, he cannot keep it and pay its value, but must return the item itself. If he no longer has the item, he must pay its value at the time of the theft” (B.K. 93b; C.M. 360:1).
“What about our case?” asked Shomo. “The item exists, but is partially broken.”
“The Gemara (B.K. 66a) derives from the end of the passuk, ‘that he stole,’ that the obligation to return the item applies only as long as the item is intact, the way he stole it,” replied Rabbi Dayan.
“However, if the item broke and is not intact, the thief cannot return it and add the difference in value, but must pay the entire initial value.
“Thus, Zev is correct. Similarly, if the item was changed significantly, in a manner not easily reversible, the thief acquires it; he must pay the owner its value at the time of the theft” (C.M. 354:5; 360:5-6; 362:13).
“What if I would prefer to have my own bike back, despite that fact that it’s broken?” asked Zev.
“You are entitled to demand it back, if it hasn’t changed significantly,” answered Rabbi Dayan. “The thief would have to add the loss in value.”
“Could you elaborate?” asked Shlomo.
“Rambam (Hil. Gezeilah 2:15) writes that the law of ‘like when he stole’ is for the victim’s benefit, so the choice is his,” explained Rabbi Dayan. “However, Maggid Mishneh explains this is only if it broke slightly and still retains its initial name. The slight change suffices to limit the mitzvah to return the stolen item itself. However, if the item was changed significantly, the thief acquires it; he can refuse to return it and choose to pay instead” (Chiddushei Rav Chaim, Gezeilah 2:15.; Taz 354:5; Pischei Choshen, Geneivah 5:15).