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The Chumash devotes a paragraph to a situation where a person misappropriated a possession of another than has regrets (see Leviticus 5:20-23). The culprit has in fact been accused by the victim however, there is no evidence of the robbery. In this situation the person who has possession of the article is required to swear an oath in the name of Hashem that he did nothing wrong. In this case it is a false oath.
Generally the penalty for theft is that the thief must return the article plus an award equal to the value of the stolen property. In this case the wrongdoer is not being coerced. Rather he feels bad about the the false oath and the swindle and wants to make amends. For this the Chumash tells him to appease the victim by returning the object plus one fifth of its value, and to appease God, he is to bring a sacrifice.
The idea is to be fair to the victim and have mercy on the transgressor. The penalty is reduced however the victim should be appeased because he recovered his property not out of coercion, which may not have been possible, but rather out of regret of the transgressor. To appease Hashem a guilt offering of an unblemished ram is required. An estimate of its value would be $300 or say three days wages.
Consistent with this line of reasoning the Gemara wants to make it easier for a crook to repent. The doctrine is called תַּקָּנַת הַשָּׁבִים, an ordinance for the penitent. The language of the Chumash is that the sinner, “will return the stolen article that he stole”, (Leviticus 5:23). The Gemara is troubled by the phrase, “that he stole” (אֲשֶׁ֣ר גָּזָ֗ל), because it seems to be redundant. One explanation is that a son who inherited stolen property from his father need not pay a penalty on its return. Another explanation is that return of the stolen article itself may not be required in certain cases. Rather, it is sufficient to pay the owner the value of the object.
Various examples of this situation are brought. The central one is of a stolen wooden beam that is used in the construction of a roof. It is generally agreed that the thief need not tear down the house to return that beam. Rather he should compensate the owner for it. The Gemara then endeavors with how to categorize this situation so as to properly apply it to ones like it. Three approaches are investigated through which the crook receives a title of ownership. They are a change of the objects name, שִׁינּוּי הַשֵּׁם; a change of the object through labor, שינוי מעשה; and the original owner dispairs, יֵאוּשׁ, of recovering his property.
Change through labor שינוי מעשה means that a significant effort has been expended to produce something in which the stolen property is basically raw material. In the case of the example the beam has now been made into a part of the roof. In addition it may have been cut, drilled, or carved. Another example in the Gemara is of a stolen lamb that is fattened into a ram.
Another analysis is that the beam is now called a roof and the lamb is now called a ram. Therefore through change in the object’s name שִׁינּוּי הַשֵּׁם, the thief obtains legal title. Objections are raised to this approach. In the case of the beam, it can still be called a beam, even though it is part of the roof. This retort annuls the example, which is considered the foundation, therefore change of the name may not be the reason that monetary compensation is acceptable in lieu of returning the original article itself. Also a lamb becomes a ram as a function of time, therefore a significant effort may not have been expended. As such it may be appropriate to return the actual animal. In addition some objects can either be processed into something new or used as is. An example is a leather tarp which is used as a tablecloth without any change or effort; once it is thought of as a tablecloth, it is called a tablecloth.
The concept of despair יֵאוּשׁ is borrowed from an analysis of acquisition of a lost article. The idea is that when the owner despairs of recovering his lost object, it becomes abandoned property. At this point the finder could legitimately keep it. The Mishna applies this to fungible items of little value. The concern of the Chumash is return of lost objects not their acquisition. The Gemara tells flowery stories of people who went through extraordinary lengths to return lost objects. There is a debate in the Gemara as to the application of יֵאוּשׁ, as well as whether the concept is legitimate at all. However at some point most say that a found object need not be returned and the reason given is יֵאוּשׁ. As a result if the owner of a stolen object despairs of getting it back, there are opinions that at this point the thief gets good title to it.
It comes out that the judge must weigh arguments and make the best decision he can. If the item was for sale, the owner wants to be paid for it. He does not want it back. A wooden beam typically falls into that category. The owner of a diamond that was a family heirloom wants it back. If the thief has made it into an elaborate piece of jewelry, the case will be difficult. The judge needs to consider making it easy for transgressors to go straight as opposed to the desire for the owner to recover his special property. Another consideration is whether the owner had abandoned the belief that he could ever get his property back. In this case the owner would be required to accept monetary compensation.
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