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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 76



(a) We learned in our Mishnah 'Ganav ve'Hikdish ve'Achar-Kach Tavach u'Machar ... Eino Meshalem Tashlumei Daled ve'Hey'. The problem with this is - why the Ganav is not Chayav for declaring the animal Hekdesh, which is like 'selling' the animal to Hekdesh?

(b) Initially, we answer this Kashya by establishing the Mishnah like Rebbi Shimon, who holds that Kodshim for which one is responsible, remain one's own. This can only be speaking - after Yi'ush, seeing as his P'tur from Daled've'Hey is based on the fact that he Shechted Hekdesh, and Hekdesh only acquires the animal with Yi'sh and Shinuy Reshus.

(c) According to Rebbi Shimon, the Ganav must have first declared 'Harei Alai Olah', and then designated the stolen animal to fulfil his Neder.

(a) According to the current suggestion, despite the fact that the animal is still considered the owner's, the Ganav is not Chayav Daled ve'Hey when he Shechts it - because after all, it is now called a Hekdesh animal (Shinuy Hashem).

(b) The Seifa forces us to retract from the suggestion that the author must be Rebbi Shimon - because since the Seifa (' Rebbi Shimon Omer, Kidshim she'Chayav be'Achariyusan ... ') goes like Rebbi Shimon, the author of the Reisha cannot be Rebbi Shimon too.

(c) So we establish our Mishnah like Rebbi Yossi Hagelili - who says 'Kodshim Kalim Mamon Ba'alim Hein (and our Mishnah must be speaking about Kodshim Kalim, such as Shelamim).

(a) Despite the fact that animal still remains the owner's (according to Rebbi Yossi Hagelili), the Ganav is not Chayav for Shechting it - because, due to the Shinuy Hashem, he is actually Shechting a Hekdesh animal (as we explained according to Rebbi Shimon).

(b) The reason cannot be because Rebbi Yossi Hagelili concedes that, after the Shechitah, the animal becomes the property of Hekdesh, as we learned in the first Perek - because that is only with regard to 'ha'Mekadesh be'Chelko', which the owner did after the Zerikas Damim, but not after the Shechitah alone.

(c) We refute this suggestion too, due to the Seifa, which states 'Ganav ve'Tavach, ve'Achar'Kach Hikdish, Meshalem Tashlumei Daled ve'Hey'. If, as we just explained, the Reishah is confined to Kodshim Kalim - then why did the Seifa switch to when the Ganav Shechted the animal before declaring it Hekdesh, in order to make his distincton? Why did he not simply switch to Kodshei Kodshim?

(d) So we finally establish our Mishnah according to everybody, and the reason that the Ganav is not Chayav Daled ve'Hey for 'selling' the animal to Hekdesh is - because even though Halachically, the animal now enters the domain of Hekdesh, technically, it was Reuven's animal, and that is what it is still called.

(a) We initially think that when Rebbi Shimon differentiated between Kodshim sh'Chayav be'Achariyusan and Kodshim she'Eino Chayav be'Achariyusan, he was referring to the Ganav selling the stolen animal, but once he has declared the animal Hekdesh, it belongs to Hekdesh, and even if he separated it for his Neder, he is Patur from Daled ve'Hey.

(b) Rebbi Shimon then argues with the Tana Kama - inasmuch as he holds that selling an animal to Hekdesh is like selling it to a Hedyot (whereas, according to the Tana Kama, even after selling the animal to Hekdesh, it is still called the owner's animal, as we explained a little earlier).

(c) The problem with this explanation is - that Rebbi Shimon should then not have said 'Kodshim she'Chayav be'Achariyusan, Meshalem Tashmumei Daled ve'Hey ... ', but vice-versa, since being responsible for the animal means that it is still his, and that is reason to make him Patur, not Chayav.

(a) We conclude that Rebbi Shimon refers to a statement of the Tana Kama that is not specifically mentioned in our Mishnah. In the first Mishnah in the Perek, we extrapolated from the Pasuk "ve'Gunav me'Beis ha'Ish" - 've'lo mi'Beis ha'Ganav'.

(b) The Tana Kama of our Mishnah now extends this D'rashah to someone who steals an animal from a Ganav and Shechts or sells it, and the same applies to someone who steals a Hekdesh animal from the owner, because we extrapolate "ve'Gunav me'Beis ha'Ish" - 've'lo mi'Beis Hekdesh'.

(c) Rebbi Shimon now agrees with this D'rashah - provided the owner does not retain responsibility (i.e. if it is a Nedavah [where he said 'Harei Zu'), but not if does (i.e. if it is a Neder [where he said 'Harei Alai'), because he holds 'Davar ha'Gorem le'Mamon, ke'mamon Dami', in which case, it is still considered the owner's.

(d) In a case where the Ganav declares the animal that he stole, Hekdesh - Rebbi Shimon agrees with the Rabbanan, that it is still called the owner's animal, in which case he is Patur from Daled ve'Hey.

(a) Rebbi Shimon holds 'Shechitah she'Einah Re'uyah, Lo Sh'mah Shechitah'.

(b) This creates a problem with our curent interpretation of Rebbi Shimon - inasmuch as the Shechitah of Kodshim outside the Azarah is a Shechitah she'Einah Re'uyah, in which case he ought to be Patur from Daled ve'Hey in all cases.

(a) When Rav Dimi arrived from Eretz Yisrael, he quoted Rebbi Yochanan, who answered this Kashya by establishing Rebbi Shimon when the Ganav Shechted the stolen Kodshim inside the Azarah in the name of the owner. The initial problem with it is - that the if the Ganav Shechted the animal on behalf of the owner, the latter has fulfilled his obligation, so why should the Ganav pay Daled ve'Hey?

(b) Rebbi Yitzchak bar Avin resolves this problem - by adding that after the Shechitah, the blood spilled, in which case, the owner does not fulfil his obligation.

(c) When Ravin arrived from Eretz Yisrael, he quoted Rebbi Yochanan differently. By establishing the case when the Ganav Shechted the animal in the Azarah but not in the owner's name - he circumvents the previous problem (based on the fact that the owner has fulfilled his obligation).

(d) The Shechitah is nevertheless Kasher - due to the principle that virtually all Kodshim that are Shechted not in the name of the owner, are Kasher, only it leaves the owner not having fulfilled his obligation.



8) The third and final explanation is given by Resh Lakish. According to him, Rebbi Shimon is speaking about a Kodshim animal with a blemish - which the Ganav Shechted outside the Azarah.


(a) Rebbi Elazar queries both Rebbi Yochanan and Resh Lakish. 'Tehi Bah Rebbi Elazar' means that Rebbi Elazar examined the issue (literally, it means 'to smell', and is used with reference to smelling a barrel of wine to see whether it has turned sour).

(b) The gist of his query is that it is not the Shechitah that validates either a Kasher Korban or a blemished one (in which case, how will they justify referring to the Shechitah as a Shechitah Re'uyah?). What does validate ...

1. ... a Kasher Korban is - the Zerikas ha'Dam (the sprinkling of the blood).
2. ... a blemished one is - its redemption.
(c) We answer that Rebbi Elazar seems to have forgotten Rebbi Shimon's own principle - 'Kol ha'Omed Li'zrok ke'Zaruk Dami', and 'Kol ha'Omed Lipados, ke'Paduy Dami'.

(d) We are referring specifically to a Korban which was already blemished before the owner declared it Hekdesh - whereas a Hekdesh animal that became blemished afterwards, is not subject to redemption, according to Rebbi Shimon.

(a) According to Rebbi Shimon in a Beraisa, Nosar is Metamei Tum'as Ochlin, provided it was left overnight after the Zerikas ha'Dam, but not otherwise. This can only be speaking about a Korban that becomes Nosar on the first morning after it has been brought, such as the Todah and all Kodshei Kodshim (but not to those that become Nosar only after two days and a night).

(b) We traditionally interpret 'after the Zerikas ha'Dam' to mean - if the Shechitah took place before Sheki'ah, leaving time fro the blood to be sprinkled (even though this did not actually happen).

(c) This proves - that Rebbi Shimon holds 'Kol ha'Omed Li'zrok ke'Zaruk Dami'.

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