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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 65



(a) Earlier, we quoted Rav, who said 'Achyeihu le'Keren Ke'ein she'Ganav', but the Kefel and the Daled ve'Hey - like its value at the time of the court-case.

(b) Based on a Beraisa, Rav Sheishes objected vehemently. The Beraisa says that, in a case where ...

1. ... the animal grew stronger after the theft - he pays Kefel and the Daled ve'Hey according to the animal's value at the time of the damage.
2. ... the animal grew weaker after the theft - he pays Kefel and the Daled ve'Hey according to the animal's value at the time of the damage, too.
(c) Rav will explain that the Ganav pays the animal's original value in the case where ...
1. ... the Ganav fattened the animal after the theft - because the latter can argue that since he went to the expense of fattening the animal, why should the owner share in the benefits?
2. ... the animal grew weaker after the theft - because the weakening of the animal is considered the first stage of death, and the Shechitah is the conclusion '(Mah Li Katlah Kulah, Mah Li Katlah Palgah'?), though it is unclear how this will help to understand the Din of Kefel or that of selling the animal (see also Tosfos DH 'Ana') ...
(d) ... and Rav is speaking about where the price of the animal increased or decreased, or where it grew fat on its own.
(a) We try and avoid establishing Rav when the animal was initially worth one Zuz and then appreciated to four, in order to avoid clashing with Rabah, who says - that if someone stole a barrel of wine worth one Zuz, and after its price had risen to four ...
1. ... he broke or drunk it - he pays according to the price at the time that he damaged it.
2. ... it broke - he pays according to its value at the time of the theft.
(b) The reason for the former ruling is - that wherever the animal is, it is really in the owner's domain. Consequently, when the Ganav breaks the barrel or drinks the wine, it is as if he is actually stealing it afresh.

(c) If Rav was speaking when the animal was initially worth one Zuz and then appreciated to four, he would be clashing with Rabah - because he holds 'Keren Ke'ein she'Ganav (even though the Ganav Shechted or sold it), whereas Rabah says 'Tavrah O Shasyah, Meshalem Daled'.

(d) We finally establish Rav ('Keren Ke'ein she'Ganav, Tashlumei Kefel Daled ve'Hey ke'Sha'as Ha'amadah be'Din) - when the animal was initially worth four Zuzim and then depreciated to one.

(a) Rebbi Chanina cites a Beraisa in support of Rav. According to Rebbi Ya'akov, if a To'en Ta'anas Ganav admits that he swore falsely before witnesses testified to that effect, he pays Keren, Chomesh ve'Asham. He does not pay Kefel - because of the principle "Modeh bi'K'nas Patur'.

(b) If he confessed after the witnesses testified, he pays the Keren and Kefel, and brings an Asham. He does not pay the Chomesh, because of the Pasuk (in connection with the Asham Gezeilos) -"be'Rosho va'Chamishiso", which implies that the obligation to pay a Chomesh (whatever it amounts to) is confined to a case where one pays only the Keren, but not where one pays Kefel, as well.

(c) The Kefel cancels the Chomesh - on condition they are equal?




(a) The Chachamim learn from the Pasuk (written in connection with Asham Gezeilos) "be'Rosho va'Chamishiso" - that the Ganav only pays Chomesh when the only other payment is "Rosho" (the principle), but not when he has to pay Kefel, too.

(b) Rebbi Shimon - extends the Chachamim's D'rashah to the Asham. Consequently, where there is Kefel, not only is there is no Chomesh, but there is no Asham, either.

(c) Although the Tana Kama agrees that he is Patur from Chomesh, that is only in this case, where the Chomesh is equal to the Kefel (as we shall now see) - but where the two amounts do not tally, he obligates the Ganav to pay them both, whereas the Chachamim exempt him from Chomesh even in such a case.

(a) If the Beraisa was speaking about a case where the value of the article remained unchanged, it seems obvious that the Chomesh would not equal the Kefel. If the article was originally worth one Zuz and then appreciated to four Zuzim, he would have to pay ...
1. ... four Zuzim Kefel.
2. ... one Zuz Chomesh.
(b) The case the Tana must then be referring to (when it speaks about the Chomesh being equivalent to the Kefel) is - where the article was originally worth four Zuzim and then depreciated to one Zuz, in which case the Kefel and the Chomesh are both one Zuz ...

(c) ... provided the Tana holds 'Keren Ke'ein she'Ganav, Kefel ... ke'Sha'as Ha'amadah be'Din )a proof for Rav).

(d) Rava concludes that the Beraisa could well be speaking when the article was worth four Zuzim all along, yet the Chomesh totaled the same as the Kefel. This is possible - where the owner claimed from the Ganav a number of times, and each time he swore again, until all the Chomeshes added up to the Kefel.

(a) The Chachamim exempt the Ganav from the Chomesh whenever he pays Kefel, from the Pasuk "be'Rosho va'Chamishiso". They do not however exempt him from the Asham (despite the fact that the Pasuk continues "ve'es Ashamo ... "), because "es" separates the Asham from the Chomesh.

(b) Rebbi Shimon, on the other hand, does exempt him from the Asham, because the 'Vav' (in 've'es') connects them.

(c) The Chachamim counter Rebbi Shimon with the argument that the Torah ought to have then omitted both the 'Vav' and the "es" to which Rebbi Shimon replies - that it is necessary to divide between the money of Hashem (the Asham) and the money of Hedyot (the Chomesh), since it is not respectful to place them directly together.

(a) Rebbi Ila'a says - that if someone steals a lamb which he Shechts after it has grown into a ram (or a calf and Shechts it after it has grown into a cow) - he is Patur from paying Daled ve'Hey, because the growth from a young animal into an adult is considered a Shinuy, in which case, the Ganav Shechted his own animal.

(b) He pays Keren according to the current price and Kefel either according to the original price or according to the current one (based on what we learned in the previous Sugya [see Maharam]).

(a) Rebbi Chanina asks on Rebbi Ila'a from a Beraisa. The Tana says that if someone steals a lamb and it grows into a ram, he pays Kefel and Daled ve'Hey - according to its original value as a lamb. According to Rebbi Ila'a, he ought to be Patur from Daled ve'Hey.

(b) Rebbi Ila'a counters Rebbi Chanina's Kashya - with the argument that if, as Rebbi Chanina assumes, Shinuy does not acquire, then he ought to pay according to its current value, and not according to its current one.

(c) Rebbi Chanina replies, that the Ganav does not pay Kefel and Daled ve'Hey according to the animal's current value, even if he did not acquire the animal with Shinuy - because he stole a lamb, or a calf, not a sheep or a cow.

(d) Rebbi Ila'a and Rebbi Chanina - did not accept each other's answers. In fact, each one declared that Heaven should help him from the other's opinion.

(a) Rebbi Zeira asked why the Ganav does not anyway acquire the lamb when it becomes a sheep, and the calf when it becomes a cow, because of Shinuy Hashem) - meaning a new name, since before it was called 'a lamb' and then it became 'a sheep' (before it was called a calf, afterwards, a cow).

(b) Rava 's answer is based on two Pesukim. From the Pasuk ...

1. ... "Shor O Kesev O Eiz Ki Yivaled", he learns - that a new-born calf is already classified as an ox.
2. ... "ve'Eilei Tzoncha Lo Achalti" - that a newborn lamb is classified as a ram. Otherwise, how could Ya'akov have boasted that he did not eat any of Lavan's rams, implying that he did eat his lambs?
(c) We have not yet answered Rebbi Chanina's Kashya on Rebbi Ila'a from the Beraisa. According to Rebbi Ila'a (who holds that a lamb becoming a ram is considered a Shinuy), the Tana obligates a Ganav who stole a lamb or a calf and Shechted or sold it after it grew up to pay Daled ve'Hey - because he holds like Beis Shamai, in whose opinion Shinuy does not acquire. Note, that it is not clear why Rebbi Ilai did not give this reply when Rebbi Chanina quoted him the Beraisa?

(d) If someone gives a woman wheat, olives or grapes and she makes flour, oil or wine, one Beraisa permits their use as a Korban, the other Tana forbids it. Rav Yosef, quoting Gurion from Aspurk - establishes the author of the first Beraisa as Beis Hillel (who holds that Shinuy is Koneh; whereas the author of the second Beraisa holds that it is not. In fact, both of their sources appear to be from this Pasuk.

(a) In the Pasuk in Ki Seitzei (in connection with the prohibition of Esnan Zonah and Mechir Kelev) ...
1. ... Beis Shamai learn from "*Gam* Sheneihem" - "Gam" 'Le'rabos Shinuyeihem' (that not only is the actual object forbidden to go on the Mizbe'ach, but so is whatever the woman (or the recipient) make out of it (which is synonymous with 'Shinuy Eino Koneh').
2. ... Beis Hillel learn from 'hem' ("Gam Shenei*hem*)" - ''hem" 've'Lo Shinuyeihem' (that the exchange is permitted - and that Shinuy is Koneh).
(b) Beis Shamai learn from "hem" - "hem" 've'Lo V'ladoseihem' (that the babies of the Esnan or of the exchange for the dog are permitted).

(c) Beis Hillel - also learn this Derashah from "hem", which implies both D'rashos (by implication, not by virtue of its being superfluous).

(d) We do not know - what Beis Hillel learn from "Gam".

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