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Bava Kama 68



(a) Initially, when the Beraisa says "u'Tevacho O Mecharo", 'Mah Tevichah she'Einah Chozeres, *Af Mechirah she'Einah Chozeres*', we interpret this to mean - that the sale is permanenet because it speaks after Yi'ush, and the purchaser acquires it through Yi'ush and Shinuy Reshus.

(b) This poses a Kashya on Rav - who holds that Yi'ush is Koneh, because, if that were so, why would the Ganav be Chayav Daled ve'Hey, seeing as he has sold or Shechted what is his own?

(c) We establish the Beraisa, according to Rav, when there was no Yi'ush, and when the Tana says 'Af Mechirah she'Einah Chozeres', he means (not that the sale must be effective, but) that the Ganav sold it permanently, and not just for thirty days (like Rav Nachman will explain shortly, in a slightly different context).

(a) In another Beraisa, the Tana reiterates the Din that someone who steals from a Ganav does not pay Kefel. In the Seifa, where Reuven stole a cow and Shechted it, and Shimon stole the carcass from him - Reuven pays fivefold, and Shimon pays only the Keren to Reuven.

(b) In the Metzi'asa, where Reuven sold the animal to Shimon and Levi then stole it from Shimon, the Tana obligates Reuven to pay the owner fivefold - and Levi, Kefel to Shimon?

(c) The Tana be speaking after Yi'ush - because beforehand, Levi would be Patur from paying Shimon, seeing as Shinuy Reshus without Yi'ush is not Koneh.

(d) The Kashya on Rav ...

1. ... from the Metzi'asa is - seeing as the owner was Meya'esh, why does Reuven have to pay fivefold for the cow, which was now his own?
2. ... from the Reisha is - why Shimon is Patur from paying Kefel to Reuven, seeing as the latter acquired the cow with the owner's Yi'ush?
(a) To answer the Kashyos on Rav, Rava first points out that the Beraisa cannot be correct as it stands. Bearing in mind that Shinuy Ma'aseh is certainly Koneh, why in the Seifa, does the Tana exempt Shimon from paying Kefel, seeing as Reuven acquired the cow through Shechting it?

(b) Rava therefore switches the Din in the Metzi'asa with that of the Seifa ... ' - establishing the entire Beraisa before Yi'ush.

(c) The Din ...

1. ... in the Metzi'asa (where Reuven sold the cow to Shimon ...) will then be - that Levi is Patur from Kefel (because Shinuy Reshus without Yi'ush is not Koneh).
2. ... in the Seifa (where Shimon stole the cow after Reuven had Shechted it) - that Shimon is Chayav to pay Kefel (because Shinuy Ma'aseh is always Koneh, as we just explained).
(d) Rav Papa leaves the Beraisa intact. In order to explain how Shimon can be Patur from Kefel, even after Reuven Shechted the cow, he establishes the author as Beis Shamai, who holds that Shinuy Ma'aseh is not Koneh.
(a) However, we are still left with the Kashya on Rav from the Metzi'asa and the Reisha on Rav. Rav Z'vid establishes the entire Beraisa when Reuven stole the animal before Yi'ush - concurring with Rav Papa's explanation of the Seifa (since the Kashya on the Seifa is an independent one, which needs to be addressed separately).

(b) Even though the owner had not been Meya'esh before Reuven stole his cow, Levi nevertheless pays Kefel in the Metzi'asa (where he purchased the cow from Reuven) - because the Tana speaks when the owner was Meya'esh after Reuven sold the cow to Shimon, in which case Shimon acquires it with Yi'ush and Shinuy Reshus (and according to Rav, even with Yi'ush alone).

(c) The reason that, in the Metzi'asa, the Tana speaks specifically when the owner was Meya'esh *after* Reuven had sold it (and he pays Kefel to Shimon), and not before (in which case, he would have had to pay Kefel to Reuven), is (not because he holds that Yi'ush is only Koneh together with Shinuy Reshus, but not on its own [a Kashya on Rav], but) - because it is the only way that both Reuven and Levi are obligated to pay (had the owner been Meya'esh before Reuven sold it, then Reuven would be Patur from Daled ve'Hey, as we explained earlier).

(a) If the Ganav sells the animal before the owner has been Meya'esh, Rav Nachman obligates him to pay Daled ve'Hey, because the Torah sells that a Ganav who sells the article is Chayav, and he did. Rav Sheishes argues with Rav Nachman on the basis of the Hekesh of 'Mechirah Dumya di'Tevichah', that we cited above, which he takes literally to mean that the sale must be effective, as the previous Sugya presumed.

(b) Rav Sheishes derives his opinion from Rebbi Akiva, who ascribes the Din of Daled ve'Hey to the fact that 'his sin took root' (as we learned on the previous Amud). Rav Nachman interprets this phrase to mean - that the sale must be a permanent one (as we explained there), and not a temporary one of thirty days.




(a) Rebbi Elazar agrees with Rav Sheishes. Based on the assumption that there must have been Yi'ush, he proves from the fact that a Ganav who Shechted or sold the stolen article is obligated to pay four or five times - that 'S'tam Geneivah Yi'ush Ba'alim' (like the Chachamim of the Beraisa quoted above (66b).

(b) What makes him so certain that Yi'ush is necessary (rather than establishing the Beraisa when there was no Yi'ush, in which case the Tana would hold like Rebbi Shimon, who holds S'tam Gezeilah Yi'ush Ba'alim) - is because we compare Mechirah to Tevichah, in which case the Mechirah must be effective (as we just explained.

(c) And for the same reason, the Torah cannot be speaking when the Ganav heard the owner specifically say that he had given up hope of retrieving the animal - because Mechirah, like Tevichah, is immediately effective (no further stage is necessary).

(d) Rebbi Yochanan counters Rebbi Elazar from 'Geneivah be'Nefesh' (kidnapping), where the kidnapper is Chayav (Miysah) even though there is no Yi'ush.

(a) According to Rebbi Yochanan, the Chiyuv of Daled ve'Hey applies before Yi'ush, but it also extends to after Yi'ush. Resh Lakish says - that if the Ganav Shechted or sold the cow after Yi'ush, he is Patur from paying fivefold, because he acquires the cow with Yi'ush.

(b) The basis of their Machlokes is - that according to Rebbi Yochanan, Yi'ush is not Koneh, whereas Resh Lakish concurs with Rav, who holds that it is.

(c) Rebbi Yochanan asks on Resh Lakish from a Beraisa. The Tana says that if someone steals a cow and, after declaring it Hekdesh, he Shechts it, he pays Kefel for the theft - but he is exempt from paying Daled ve'Hey for the Shechitah.

(d) The Tana cannot be speaking before Yi'ush - because we learn from the Pasuk "Ish Ki Yakdish es Beiso Kodesh", that like "Beiso", a person can only be Makdish something that is his, but not something that belongs to someone else.

(a) The Ganav is then Patur from Daled ve'Hey - because the cow belongs to Hekdesh, and the Torah stresses "Shor Re'eihu", 've'Lo Shor shel Hekdesh'.

(b) We can extrapolate from here - that if the same cow had belonged to a Hedyot, he would be obligated to pay Daled ve'Hey, in spite of the fact that the owner was Meya'esh (posing a Kashya on Resh Lakish).

(c) Resh Lakish replies - that it was not the Ganav who declared the animal Hekdesh, but the owner, who declared it Hekdesh after it was stolen, and who was not Meya'esh.

(a) We query Resh Lakish's explanation however, with a statement of Rebbi Yochanan, who said that if someone steals a cow and the owner has not been Meya'esh - neither the owner nor the Ganav are able to declare it Hekdesh, the one because it is not his, and the other, because it is not currently under his jurisdiction.

(b) We answer that Resh Lakish holds like the Tzenu'in. The Mishnah in Ma'aser Sheini is concerned that people might pick the fruit of the vines of a Kerem of Neta Revai which had not yet been redeemed.

(c) To offset this - the Tzenu'in used to set aside money and declare that fruit that had already been picked from those trees should be redeemed on that money.

(d) This poses the following Kashya on the Beraisa currently under discussion, which (according to Resh Lakish), we have just established like the Tzenu'in, but which obligates the Ganav to pay Kefel. Seeing as the owner declared the cow Hekdesh, it is as if he had taken it back, in which case - the Ganav ought to be Patur (because he only pays Kefel if the stolen object is found with him.

(a) We resolve the problem by establishing the case when the owner had taken the Ganav to Beis-Din before he declared it Hekdesh - in which case he was already Chayav to pay Kefel before the owner declared it Hekdesh.

(b) Assuming that Beis-Din had said 'Tzei Ten Lo', the problem will then be - that he ought to have been Patur from Daled ve'Hey, even if the owner had not declared it Hekdesh, since, as Rava has taught us, should the Ganav Shecht the cow after Beis-Din have ordered him to return it, he is considered a Gazlan, and a Gazlan is Patur from Kefel and from Daled ve'Hey.

(c) The Beraisa must therefore be speaking when the Beis-Din said to the Ganav 'Chayav Atah Liten Lo', which is a ruling, but not an order, which mea ns that it is not final. Consequently, should the Ganav then Shecht the cow, he is still considered a Ganav.

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