THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Kama, 68
1) AS HE SAID ELSEWHERE
QUESTION: The Mishnah (62b) states that a second Ganav who steals a stolen item from
the first Ganav does not pay Tashlumei Kefel. Rav explains that this applies only
when the original owner did not have Yi'ush. If he had Yi'ush, then the first Ganav
was Koneh the item through Yi'ush, and when the second Ganav steals it from him, he
is stealing an item that is the property of the first Ganav, and he must pay Kefel.
Rav Sheshes challenges Rav's statement from a Beraisa, in which Rebbi Akiva says that
the reason a Ganav who sells an animal that he stole must pay Tashlumei Arba'ah
v'Chamishah is because "he became rooted in sin," meaning that he added a Shinuy
Reshus to the Yi'ush. According to Rav, though, if there was Yi'ush, then the Ganav
was Koneh the item and is now selling his own item, and he should not have to pay
Arba'ah v'Chamishah! The Gemara answers, "As Rava said [elsewhere]: [the Ganav must
pay Arba'ah v'Chamishah] because he repeated his sin" (that is, not only did he
steal, but he then sold what he stole; see next Insight). Thus, according to Rava,
the reason a Ganav must pay Arba'ah v'Chamishah is not because he "became rooted in
sin," effecting a Shinuy Reshus after Yi'ush, but even when he sells the animal
before Yi'ush occurs he must pay Arba'ah v'Chamishah because he repeated his sin.
2) "BECAUSE HE REPEATED HIS SIN"
Why does the Gemara say, "As Rava said [elsewhere]," implying that he made this
statement ("because he repeated his sin") with regard to another Mishnah or Beraisa?
The Gemara later on this Amud states clearly that it was with regard to this very
Beraisa of Rebbi Akiva that Rava made this statement! The Gemara should have answered
by saying, "But Rava said [with regard to this Beraisa] that it is 'because he
repeated his sin'!"
(The same question applies to the Gemara's citation of Rav Nachman's statement on the
ANSWER: The SHITAH MEKUBETZES answers that Rava (and Rav Nachman) did not say his
statement with regard to the Beraisa. Rather, Rav Sheshes, later in the Gemara,
wanted to prove his opinion (that a Ganav who sells the stolen animal before Yi'ush
is exempt) from a Beraisa, and Rava refutes his proof by explaining that the word
"Nishtaresh" means "Shanah" ("repeated"). Rav Sheshes then attempts to bring another
proof from a Beraisa, and Rav Nachman refutes his proof showing that the Beraisa can
be understood in a different way. The Gemara here is saying that just like Rava and
Rav Nachman refuted Rav Sheshes' proof from a Beraisa cited later, here, too, they
refuted Rav Sheshes' challenge against Rav from the same Beraisos in the same
(The RASHASH in Pesachim (54b) points out that we find a similar usage of this
phrase, "As Rav Shisha brei d'Rav Idi said [elsewhere]....")
OPINIONS: Rava explains that the reason a Ganav who sells the animal that he stole
must pay Arba'ah v'Chamishah is "because he repeated his sin" ("Mipnei she'Shanah
ba'Chet"). In what way did he repeat his sin? His first sin was that he stole the
item, and his second sin is that he sold the item. What did he repeat?
3) RAV'S OPINION REGARDING "YI'USH" AND "SHINUY RESHUS"
(a) RABEINU YEHONASAN, as cited by the Shitah Mekubetzes, explains that not only did
he give in to his Yetzer ha'Ra by stealing, but that he is giving in to his Yetzer
ha'Ra again by not repenting from his evil deed and by deriving benefit from it.
(b) The ME'IRI writes that he repeated his act of iniquity, like a person who is
steeped in evil and is unable to move away from it.
(c) The LECHEM AVIRIM writes that Rava means to say like the Gemara in Kidushin says,
"One who repeats his sin, it becomes to him like something permissible" ("Kol
QUESTION: The Gemara challenges Rav's opinion that Yi'ush is Koneh from a Beraisa
which clearly implies that Yi'ush is not Koneh. Rav Zevid answers the Gemara's
question on Rav by saying that the Beraisa is discussing is a case in which the owner
had Yi'ush after the Ganav sold the item, but not while the item was still in the
hand's of the Ganav. Therefore, the Ganav must pay Arba'ah v'Chamishah since the
owner had not yet had Yi'ush. Had the owner had Yi'ush while the item was in the
hands of the Ganav, the Ganav indeed would be Patur, since, according to Rav, Yi'ush
alone is enough for the Ganav to be Koneh the item.
This is difficult in light of Rav Zevid's statement later (115a), where he says that
Rav holds that whether the owner had Yi'ush first and then there was a Shinuy Reshus,
or whether there was a Shinuy Reshus and then the owner had Yi'ush, the Ganav is
Koneh the item. This implies that Yi'ush *alone* does *not* work to be Koneh the
item, and that it only works together with a Shinuy Reshus! How, then, can Rav Zevid
say here that Rav holds that Yi'ush alone works to be Koneh the item?
The Gemara there (115a) discusses a case in which a Ganav sold the item that he
stole, and only afterwards was he discovered to have been the Ganav. Rav in the name
of Rebbi Chiya maintains that the original owner may only make a claim against the
Ganav, and not against the buyer (even though the buyer could then go and make a
claim against the Ganav). Rebbi Yochanan in the name of Rebbi Yanai argues and says
that the original owner may make a claim from the buyer, and then the buyer may in
turn make a claim from the Ganav.
Rav Zevid there explains the Machlokes as follows. Everyone agrees that if the owner
had not had Yi'ush, then the owner could make his claim even against the buyer, since
as long as the owner did not have Yi'ush, the item was still considered his and thus
he may claim it from whoever took possession of the item. The argument is where the
owner had Yi'ush *after* the buyer purchased the item from the Ganav. Rebbi Yochanan
in the name of Rebbi Yanai maintains that only when there was first Yi'ush and then
Shinuy Reshus does the item change possession, but not -- like in the case there --
where the Shinuy Reshus precedes the Yi'ush. Since the buyer purchased the item
before there was both Yi'ush and Shinuy Reshus, it is as if he stole it directly from
the owner, and thus the owner may make a claim against him. In contrast, Rav in the
name of Rebbi Chiya maintains that Yi'ush and Shinuy Reshus are Koneh regardless of
the order in which they occur.
Rav Zevid's explanation of the view of Rav there implies that although the order of
Yi'ush and Shinuy Reshus does not matter, it *is* necessary to have *both* Yi'ush and
(a) The PNEI YEHOSHUA answers that in the Gemara later (115a), the reason why Rav
Zevid mentions that both Yi'ush and Shinuy Reshus are necessary is because Rav there
made his statement in the name of Rebbi Chiya, and Rebbi Chiya indeed holds that both
Yi'ush and Shinuy Reshus are necessary. Rav himself, though, argues and holds that
Yi'ush alone is Koneh. The Pnei Yehoshua himself, however, points out that this
answer is unlikely.
(b) The Pnei Yehoshua suggests a second answer. Indeed, Rav Zevid holds that
according to Rav, Yi'ush alone is Koneh. In the Gemara later (115a), the only reason
Rebbi Zevid mentions both Yi'ush and Shinuy Reshus is not because they are both
necessary in order for the Ganav to be Koneh the item, but rather he mentions them
both in order to show the view of Rebbi Yochanan. Rebbi Yochanan argues with Rav and
holds that not only is Yi'ush not enough, but also that the Yi'ush must occur before
the Shinuy Reshus in order for the Ganav to be Koneh. That is why Rav Zevid there
mentions both Yi'ush and Shinuy Reshus in his statement, even though he is explaining
the view of Rav; he is emphasizing that Rebbi Yochanan holds both that Yi'ush alone
is not enough, and that the Yi'ush and Shinuy Reshus must also be in a specific
order. Rav, though, holds that Yi'ush alone is Koneh.
(c) The OR SAME'ACH (Hilchos Geneivah 1:17) writes that Rav *does* require both
Yi'ush and Shinuy Reshus in order for the Ganav to be Koneh the item, like Rav Zevid
implies later (115a). When Rav Zevid here says that Yi'ush alone suffices, he is
speaking according to the view of Rav Papa. Rav Papa (on 115a) argues with Rav Zevid
(115a) and explains the Machlokes between Rav and Rebbi Yochanan differently. It is
according to Rav Papa's view there that Rev Zevid says here that Rav holds that
Yi'ush alone is Koneh. Rav Zevid himself, though, is of the opinion that Rav holds
that Yi'ush alone is not Koneh without Shinuy Reshus.
(d) The Pnei Yehoshua gives a third answer, which is also the answer suggested by the
CHAZON ISH (16:8). They write that when the Gemara says that Rav holds that Yi'ush
alone works, it means that Yi'ush alone works only to be Koneh the actual body of the
item. The Ganav is not Koneh the *value* of the item through Yi'ush -- there remains
an obligation to *pay* the owner for the item (as if he is buying the item), as
TOSFOS says earlier (66a, DH Hachi). This is why Rav Zevid later (115a) requires both
Yi'ush and Shinuy Reshus, for there he is explaining, according to Rav, how the Ganav
is Koneh the item completely, and is Patur even from paying for the item. The Pnei
Yehoshua adds that this seems to be the correct answer.