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A person steals a beam to build a house. The Torah says: Dismantle the house and give the beam back to its owner:

When one has sinned, he realizes his guilt and restores what he got through robbery or fraud. [Lev. 5:23]

Bet Shammai said: Follow Torah law. But Bet Hillel said that the financial loss to the thief is so high it might impede his repentance, which is the purpose of justice, so financial compensation is enough. Bet Hillel’s ruling prevailed. [Gittin 55a, Tosefta Bava Kamma 10:5]

Talmud even reports that the King of Nineveh wanted his people to repent so completely that they should tear down their houses to return stolen beams, so as not to own a stolen object! [Taanit 16a]

The Mishna concludes:

This is the general rule: all robbers make restitution according to [the value of the stolen object] at the moment of theft. [Mishna, Bava Kamma 9:1]

Now my question. Does the victim have any say in the matter? Maybe whatever was stolen from him has special, sentimental value, and he wants it back, not money; and it is possible to give it back to him, even though the cost to the thief is high. Would this be resolved on a case-by-case basis or is Hillel's ruling automatically applied? As it stands, Hillel's ruling seems to imply: "Steal whatever you want and pay back its monetary value".

Case added in view of comments. You own an old, battered spoon that used to belong to your great-grandfather in the old country and is of great sentimental value to you. It is stolen from you and the thief makes it the centerpiece of a work of modern art called "The Old Country", which becomes very popular and is worth millions. (Preposterous? See here.) You recognize your spoon and demand it back. Shammai says: Give it back. Hillel says: Give back the value of the spoon (10 cents). What is the halacha?

  • What victim wouldn't utilize this option to just get his stuff back? – Double AA Aug 19 at 13:56
  • I thought it was only in the case that the beam was built in the house, and it would be too complicated to dismantle the whole house, you can pay the value. Otherwise, you have to give back the real object. – talmidforlife Aug 19 at 14:08
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  • "Steal whatever you want and pay back its monetary value" - if the thief intends to pay the money back, he could just buy it instead of stealing it. לא שביק איניש היתירא ואכיל איסורא – b a Aug 19 at 15:03
  • Or he could just make a shinui. Stealing something to keep it isn't very hard in halacha – H. Eugene Walters Aug 19 at 15:19
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As Rashi explains (Gittin 55a), this halacha only applies in a specific case of great financial loss to the thief, where returning the actual item would require him to destroy an entire structure, so its application is less broad than you assume.

As far as your question is concerned, we certainly do not take the victim's desire into account; indeed the Gemara chronicles such a case where the victim demanded her object and the Rabbis denied it. Sukkah 31a:

There was a certain old woman who came before Rav Naḥman. She said to him: The Exilarch and all the Sages in his house have been sitting in a stolen sukka. She claimed that the Exilarch’s servants stole her wood and used it to build the sukka. She screamed, but Rav Naḥman did not pay attention to her. She said to him: A woman whose father, Abraham, our forefather, had three hundred and eighteen slaves screams before you, and you do not pay attention to her? Rav Naḥman said to the Sages: This woman is a screamer, and she has rights only to the monetary value of the wood. However, the sukka itself was already acquired by the Exilarch

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