On the bimah of the beis midrash stood a maos chittim “pushka” (collection box) on behalf of “Matzos Chesed Organization.” The gabbai (person who assists in the running of a synagogue) emptied the box every few days, finding $200 to $500 on an average week.
One morning, the gabbai came to empty the collection box and found the lock broken and the money gone! He approached Mr. Taub, who was in charge of maintenance, and related what had happened.
“We recently installed surveillance cameras,” said Mr. Taub, “so I might be able to identify the thief.”
Mr. Taub viewed a playback of the previous night’s recording, which showed that towards 3 a.m. a figure had entered the building. Mr. Taub slowed the playback and followed the man over to the pushka and watched him open it. He zoomed in and identified the thief as a member of the community who had declined morally and recently fallen on hard times.
Mr. Taub decided to confront the thief.
“I have a surveillance video recording of you stealing from the Matzos Chesed pushka,” he said to the thief. “Return $400 now or we’re going to prosecute.”
“It wasn’t that much,” said the thief. He pulled out $250 and gave it to Mr. Taub. “That’s all there was.”
“I don’t trust you,” said Mr. Taub menacingly. “I’m giving you two days to bring the remaining $150, or else…”
Mr. Taub returned to the gabbai. “I was able to recover the money!” he exclaimed happily and handed him the money.
“How much was there?” asked the gabbai.
“The thief gave me $250,” replied Mr. Taub. “I threatened that if he doesn’t give another $150 in the next two days, we would prosecute.”
“But if he didn’t take $400, is it fair to make him pay that much?” asked the gabbai.
“How do I know how much he took?” answered Mr. Taub. “For all I know, he took even more!”
“Or, he could have taken less,” said the gabbai.
“Don’t you think we should penalize him anyway?” said Mr. Taub. “Let it be a donation to tzedakah!”
“I don’t think it’s called a donation if you force him to give more than he owes,” said the gabbai. “I’m not sure that what you’re doing is correct.”
“If you want, I’ll discuss the issue with Rabbi Dayan,” said Mr. Taub. He called Rabbi Dayan and asked: “Can I demand that the thief pay me the amount that I estimate?”
Rabbi Dayan answered, “If you cannot clearly state the amount the thief stole, it is not possible to obligate him in more than he admits.”
Rabbi Dayan then explained, “In most charges, if there isn’t clear evidence and the defendant denies the charge, he can swear that he does not owe the amount in dispute and is exempt. However, when there is evidence that someone stole, but the witnesses do not know the amount of the theft, Chazal instituted that the victim can swear how much the thief stole and collect that amount from him. This is known as shevuas hanigzal, the oath of a robbery victim (C.M. 90:1).”
“However,” continued Rabbi Dayan, “if the victim cannot definitively claim how much was stolen, he is not able to swear. Nor can we impose an oath upon the thief, since he is suspected of swearing falsely. Even if the thief admits to having stolen a certain amount, he has to pay only what he admits; it is not possible to obligate him in any greater amount because there is no definitive claim (90:5).”
“What if a suspected thief refuses to admit or admits to an amount that seems unreasonably low?” asked Mr. Taub. “What can be done?”
“Unfortunately, there is not much that can be done nowadays,” said Rabbi Dayan. “Beis din’s only legal recourse is to impose a cherem, or curse, upon one who stole and does not admit (90:5). In previous generations, when beis din had more power, if there was strong basis to believe that a person stole but he denied it, the beis din could consider using certain coercive measures to ascertain the truth (see Pischei Choshen, Geneivah 1:[13]).”