Leviticus – 19:11  You shall not steal. You shall not deny falsely. You shall not lie; one man to his fellow.

Gemora: Baba Metziah 61b: What is the need of the injunction, ‘Ye shall not steal’,which the Divine Law wrote? [Couldn’t I have deduced this from other laws?] — For that which was taught: ‘Ye shall not steal,’ [even] in order to [just] cause pain to someone; ‘Don’t steal,’ [even] in order to repay with a double fine.

Torah Temimah Colloquial Translation Of Comment #60: [In the Gemorah] when it says “in order to just aggravate someone” it means as the Rambam states in the book Sefer HaMitzvot (Lo Taaseh #144) that [the intent of the thief] was just to cause distress to the owner [and the thief actually intended to return it, but just stole it in order to cause pain to the person.]   (See the source of the word ומיקטfrom Job, Chapter 10, Verse 1)

Also note that in the Shittah M’Kubetzet  he brings this opinion [of stealing the object to create emotional distress yet fully intending to return it] in the name of “Some commentators explain” [rather than mentioning Rambam explicitly]. Further the Shittah M’Kubetzet  says that the explanation of [only intending to cause pain] does not make sense since this is something that (people in the observant community) do regularly (without any sense of guilt). Rather, the Shittah M’Kubetzet  explains the phrase “to cause pain” as meaning that the thief did intend to cause pain AND did NOT intend to return the stolen object.

However, in my opinion what Rambam writes is totally appropriate and accurate. The reason [I think this] is because if the intention of the thief is to keep the stolen object, why would you think to not make the thief obligated to pay if he [only] intended to cause emotional pain (rather than having a real interest in obtaining the object)? Isn’t it true that the victim still ends up with a monetary loss? If this is the case, then the Shittah M’Kubetzet’s statement that this is something that happens every day is [basically] irrelevant; and stealing with this intent is still completely forbidden.

Regarding the topic of stealing “in order to repay with a double- fine”, this case relates to a situation where the thief [actually] wants to help the victim but he knows that the victim won’t accept help [charity]. Therefore, the thief would steal something of the victim’s knowing full well that he will then be required to pay back the original item plus a fine of two times or more the value of the object.

In the book Ketzot HaChoshen, Section 348, the author wonders whether the usual law of a onsin would apply to the case of one who steals only to cause pain. [This is the law that states that in a normal case of theft, if the object breaks or is lost while in the possession of the thief, even through no fault of his, he still has to pay back the monetary worth of the item to the original victim. The Ketzot HaChosen contemplates that since the thief did intend to return the object [after some time had elapsed] and his intent was not really to steal the object, perhaps this law of onsin does not apply. After all, the thief did do something wrong, but since it is not ‘pure’ theft maybe he would not be liable for the additional burden of onsin. Further, the Ketzot HaChosen brings support for this possibility from the   Shittah M’Kubetzet (at the end of the Chapter “Hamakpid”).   

It seems to me that [the Ketzot HaChosen is wrong and] the thief, even in this case, would be obligated in onsin. The reason for this is the well-known fact that the reason why a regular thief is not punished with lashes is because he is also obligated to return the object. Because of this additional obligation [to return or pay restitution] the law is also that even in a time when the original stolen object is missing [such as it was stolen from the thief] we still do not punish the thief with lashes, since the thief is liable to replace the object under all circumstances including onsin. All of this being the case, how could you think that a thief who only intended to aggravate the victim is not obligated in onsin? If that were true, then this type of thief who even lost the object that he stole would then be obligated in lashes! This would be the case since he is no longer subject to the obligation to return the object. Yet no one has ever argued that the law for these unusual theft cases is that the thief should receive lashes. Further this would not be the type of detail that the Gemora or later legal authorities would inadvertently leave out, and it would be a forced explanation to say that such thieves are not liable for lashes simply because the Torah chose not to deviate from the standard rule in those potentially exceptional cases. This topic merits further investigation.

 DBS Note: This complex note illustrates a fundamental point of the Torah Temimah. I think that he does not engage in complex legal reasoning separate from his pursuit of justice. I think that the injustice of the robbery victim not receiving restitution in all cases, even a case of onsin, motivated the Torah Temimah to illustrate why such a view was untenable and to include this note in his book.