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Bava Kama 66

BAVA KAMA 66 - This Daf has been sponsored in memory of the thousands of innocent lives that were lost in horrifying acts of terror. Sponsored by Rabbi N. Slifkin, author of "Nature's Song" (on Perek Shirah) and other works.



(a) The Beraisa over which Rebbi Ila'a and Rebbi Chanina argue states 'Meshalem Tashlumei Kefel ve'Tashumei Arba'ah va'Chamishah Ke'ein she'Ganav', a Kashya on Rav, who holds that in a case where the animal appreciated (as in this case) or depreciated in value, 'Kefel Arba'ah va'Chamishah ke'Sha'as ha'Amadah ba'Din', (as we saw in the previous Sugya).

(b) Rava reconciles Rav with the Beraisa - by differentiating between whether the Ganav replaces the animal that he stole with another one (in which case pays everything according its value at the time that he stole it), or whether he pays for the theft in cash (in which case we assess the Kefel, the Daled and the Hey according to its current value [see also Tosfos DH 'Tela'im').

(a) Rabah extrapolates from the Pasuk "ve'Heishiv es ha'Gezeilah" - that if the animal remains the way it was when the thief stole it, he is obligated to return it to the owner; otherwise, he simply pays its value (in other ways 'Shiuy Koneh').

(b) The Mishnah in ha'Gozel Kamah says that if someone ...

1. ... steals wood which he uses to manufacture vessels or wool from which he makes a garment - he only needs to pay the value of the article of the wood or the wool, but not of the manufactured product.
2. ... dues the wool of Reishis ha'Gez (the first shearings that are due to be given to a Kohen) - he is Patur from giving Reishis ha'Gez to the Kohen (because, as opposed to a case of theft, there is no claimant).
(c) Rabah extrpolates from these Mishnahs that 'Shinuy Koneh'.
(a) With regard to Yi'ush however, Rabah had a Safek - whether Yi'ush is Koneh mi'd'Oraysa or mi'de'Rabbanan.

(b) Yi'ush might be Koneh mi'd'Oraysa - because we have a precedent for this in a lost article, which, the finder who picks it up after Yi'ush is permitted to keep.

(c) We know that Yi'ush is Koneh by Aveidah - from the Pasuk in Ki Seitzei "Asher Tovad Mimenu u'Metzasah", from which the Beraisa extrapolates that the obligation to return a lost article does not pertain to a lost article that is totally lost (that for a while was not available to anybody [e.g. one that was swept away by a river]) and from which the owner certainly despaired from ever retrieving it.

(d) Yi'ush by theft is different than Yi'ush by a lost article - inasmuch as unlike a lost article, it came to the Ganav's hands be'Isur. And that causes Rabah to have doubts as to whether it is Koneh mi'd'Oraysa.

(a) Rav Yosef asked Rabah from a Beraisa, where the Tana states that if someone stole Chametz before Pesach and wishes to return it after Pesach - he may simply place it in front of the owner, and he will have fulfilled his obligation.

(b) Despite the fact that the Chametz is completely valueless - he is permitted to do so, due to the principle 'Hezek she'Eino Nikar Lo Shmei Hezek' ('Damage that is not discernable is not considered damage').

(c) Rabah will explain that, even if Yi'ush is Koneh elsewhere, it will not be Koneh here - because it only acquires elsewhere because the Ganav wants to acquire it, but which Ganav wants to acquire Chamets from the moment it becomes forbidden?




(a) The Beraisa learns from the Pasuk "Im Olah *Korbano*" - that one can only declare a Korban on an animal that belongs to him, but not a stolen animal.

(b) The Pasuk can only be speaking after Yi'ush - because if it was before Yi'ush, it seems obvious that such a Korban is not valid.

(c) Abaye asked Rava from this Beraisa on Rabah - in whose opinion Yi'ush is Koneh (perhaps even mi'd'Oraysa) in which case there is no reason for the Korban not to take effect?

(a) The Tana of another Beraisa extrapolates "Mishkavo", 've'Lo ha'Gazul' - that the Din of Tum'as Mishkav (that a blanket for example, on which a Zav lies becomes an Av ha'Tum'ah) does not pertain to a stolen article.

(b) Now if the Pasuk speaks when the Ganav stole wool and made it into a blanket (in the way that Rabah explained the previous D'rashah [that he stole a Chulin animal and declared it Hekdesh]), then why would the Din of Tum'as Mishkav not take effect.

(c) Rava therefore explains that the Beraisa speaks (not when he stole wool ... , but) when he actually stole a woolen blanket. Likewise the previous Beraisa speaks when he stole a Hekdesh animal of his friend (before Yi'ush), and the Beraisa teaches us that the animal canot be brought on the Mizbe'ach, even on behalf of the original owner.

(d) Alternatively, the Pasuk might even be speaking after Yi'ush - because Yi'ush is ineffective with regard to a Korban, which cannot be stolen, because wherever it is, the real owner is Hashem, and it cannot therefore change hands.

(a) When the Tana in the Beraisa says 'Oros shel Ba'al ha'Bayis Machshavah Metam'asan' - he means that if a private person decides to use a piece of unfinished leather for a specific purpose (and not to shape it further), his decision turns the piece of leather into a vessel which is subject to Tum'ah.

(b) He continues however, 've'Shel Abdan, Ein Machshavtan Metam'asan' - because a tanner who sells his finished products, might well decide today to stop at a certain point in the production. But tomorrow, when a customer asks for a specific vessel that requires further cutting, he will continue cutting it. Consequently, even after deciding to use a piece of leather the way it is, it is still considered unfinished, and is not subject to Tum'ah until it is cut to shape.


1. The Tana Kama concludes 'shel Ganav, Machshavtan Metam'asan, ve'shel Gazlan, Ein Machshavtan Metam'asan' - because he holds that in the case of a Ganav, who is generally unknown, the owner despairs of ever finding out who the Ganav is; whereas in the case of a Gazlan, whom he recognizes, there is no Yi'ush, because he plans to take him to Beis-Din, and retrieve his article by force.
2. Rebbi Shimon says the opposite. He maintains - that it is by a Gazlan that the owner despairs, because one is dealing with a tough guy; whereas when it comes to a Ganav, the owner does not despair, because he plans to find him and retrieve his article.
(a) Abaye asked on Rav Yosef (who holds that Yi'ush is not Koneh) from this Beraisa. Rav Yosef replied - that the Tana is not speaking about plain Yi'ush, but about where the Ganav actually cut the leather to shape, in which case he acquires it with Yi'ush and Shinuy Ma'aseh (see Tosfos DH 'Shinuy ha'Shem').

(b) Rabah bar Rav Chanan objects to this answer however, on the grounds that the Tana is referring to an Itzva - a piece of leather that they would use as a table, to eat on.

(c) His objection is based on a Mishnah in Keilim - where the Tana says that vessels that require trimming are not subject to Tum'ah until they have actually been trimmed, with the exception of an Itzva, which becomes subject to Tum'ah with thought alone, because it is fit to use the way it is.

(d) For twenty-two years Rav Yosef was unable to answer this Kashya - until he succeeded Rabah as Rosh Yeshivah.

(a) Rav Yosef finally answered the Kashya - by establishing the Beraisa when the Ganav acquired the skin (not through Yi'ush or through Shinuy Ma'aseh, but) through Shinuy ha'Shem.

(b) The basic difference between Shinuy Ma'aseh and Shinuy Hashem, says Tosfos, is - that whereas the former does not require Yi'ush, the latter does (see Tosfos Sukah 30b DH 've'Liknaya').

(a) A 'Marish' is - a beam.

(b) According to the Mishnah in Iduyos, if someone stole a Marish and built into his mansion, he is permitted to pay its value. He is not obligated to demolish the mansion in order to return the beam - because of 'Takanas ha'Shavim' (to facilitate the Ganav to do Teshuvah - which he would hesitate to do, if it meant demolishing his mansion).

(c) A 'Keshura' and a 'Telala' are two names for a beam, the one before it is built into a house, the other afterwards.

(d) This creates a Kashya on Rav Yosef - according to whom the Ganav ought to acquire the Marish anyway, because of Shinuy Hashem (since before he built it into his mansion, it was called a 'Keshura' and afterwards it became a 'Telala').

(a) To answer the previous Kashya, Rav Yosef cites a Pasuk in Yechezkel "Tzal'os ha'Bayis ve'ha'Uvim". According to the Tana of the Beraisa, the ...
1. ... "Tzal'os ha'Bayis" were - the window and door frames.
2. ... ''Uvim" were - the beam.
(b) Rav Yosef proves from this Beraisa that a Marish does not really change its name, since the Tana refers to the beams as 'Marishos', even though the Pasuk is speaking about beams that had been built into a house, and in the previous Mishnah, the Tana referred to a loose beam as Marish, too.

(c) According to Rebbi Zeira, the Shinuy Hashem of Marish would not acquire anyway - because it is a Shinuy that is easily retractable, and Shinuy ha'Shem only acquires when it is permanent.

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