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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 94



(a) Abaye has just listed the Tana'im who hold 'Shinuy Eino Koneh'. We have already cited Rebbi Shimon ben Yehudah (See also Tosfos DH 'Rebbi Shimon') as well as Beis Shamai (in Perek Merubeh). Beis Shamai learns 'Shinuy Eino Koneh' from the Pasuk in Ki Seitzei (in connecting with Esnan Zonah) "Gam Sheneihem", 'Le'rabos Shinuyeihem', Beis Hillel learns 'Shinuy Koneh' from - "Shenei*hem*", 'Le'rabos Shinuyeihem'.

(b) We do now know what Beis Hillel do with the word "Gam".

(c) Based on the Pasuk in Tehilim "u'Botze'a Beirech Ni'etz Hashem", Rebbi Eliezer ben Ya'akov says - that someone who steals a Sa'ah of wheat, grinds it, kneads it, bakes it and separates Chalah from it, cannot recite a B'rachah over it (see Me'iri), since this does not fall under the category of blessing Hashem, but of angering Him.

(d) We prove from here - that Rebbi Eliezer ben Ya'akov holds 'Shinuy Eino Koneh'. Otherwise, once he has baked the bread, he should certainly acquire it, and be permitted to recite a B'rachah over it. Note, it is unclear however, if Shinuy is not Koneh, how one is permitted to eat it in the first place.

(a) Rebbi Shimon ben Elazar in a Beraisa, states a K'lal 'Kol Sh'v'ach she'Hishbi'ach Gazlan Yado al ha'Elyanoh'. He may return the article as it is ('Harei she'Lecha Lefanecha'), or he might otherwise be obligated to pay for its current value.

(b) Rebbi Shimon can only be referring to an article that has depreciated - because the term 'Harei she'Lecha Lefanecha' is inapplicable to an article that appreciated.

(c) Rav Sheishes explains that Shimon ben Elazar does not force the Ganav to pay for the depreciation - because Shinuy is not Koneh.

(d) Nevertheless, he is Patur from returning the appreciated article - because of Takanas ha'Shavin (a Takanah to encourage the Ganav to do Teshuvah and pay for what he stole).

(a) We learn that the initial obligation in giving Pe'ah is when the corn is still attached - from the Pasuk in Kedoshim "Lo Sechaleh Pe'as Sadcha Li'ketzor".

(b) The owner remains obligated to give Pe'ah after he has ...

1. ... cut the corn.
2. ... made it into sheaves.
3. ... after having made Miru'ach (flattening the pile after winnowing). However - the Beraisa then requires him to first Ma'aser the crops (since 'Miru'ach is the stage that obligates Ma'aser to be taken).
(c) Rebbi Yishmael obligates him to give Pe'ah even after he has made it into a dough - the Tana Kama exempts him ...

(d) ... because he holds 'Shinuy Koneh', whereas Rebbi Yishmael holds 'Shinuy Eino Koneh'.

(a) Rav Papa asked Abaye whether all these Tana'im hold like Beis Shamai, to which he replied - that, in their opinion, Beis Hillel agree with Beis Shamai in this regard.

(b) Rava disagrees with Abaye's entire list. There no proof from ...

1. ... the case of stolen wool that the Ganav dyed (Rebbi Shimon ben Yehudah) - because it is a 'Shinuy ha'Chozer li'Beri'aso' (by means of Tzafun, as we explained earlier).
2. ... the fact that one cannot bring a Korban from an Esnan Zonah wich the Zonah changed (Beis Shamai) that 'Shinuy Eino Koneh' - because Korbanos might be different, since it is disgusting to offer Hashem something of this nature.
3. ... the fact that a Ganav cannot recite a B'rachah over stolen wheat that he has made into bread (Rebbi Eliezer ben Ya'akov) that 'Shinuy Eino Koneh' - because it is a 'Mitzvah ha'Ba'ah ba'Aveirah'.
4. ... the fact that a Ganav does not acquire a weakened animal (Rebbi Shimon ben Elazar) that 'Shinuy Eino Koneh' - because here too, it is a 'Shinuy ha'Chozer li'Beri'aso', and is therefore not a real Shinuy.
(c) According to Rava, Rebbi Yishmael might obligate the owner to give Pe'ah from the bread, even if he holds 'Shinuy Koneh' - because The Torah writes an extra "Ta'azov" (one in Kedoshim and one in Emor).

(d) We cannot learn from Pe'ah that 'Shinuy Eino Koneh' - because Matnos Aniyim are different (inasmuch as, if he does not give Pe'ah, he will not have fulfilled the Mitzvah of "Ta'azov" at all).

(a) Rebbi Yonasan asked if Rebbi Yishmael's reason for obligating the owner to leave Pe'ah from the bread - is because 'Shinuy Eino Koneh' or because of the extra "Ta'azov".

(b) If his reason is because 'Shinuy Eino Koneh', he learns from the extra "Ta'azov" - that if someone declares his vineyard Hefker and then, the next morning, he harvests the grapes), he remains Chayav Peret, Olelos, Shikchah and Pe'ah.

(c) He will nevertheless be Patur from Ma'aser (because Hefker is not subject to Ma'aser).

(d) The Rabbanan learn from the extra "Ta'azov" - the same as Rebbi Yishmael is currently learning, because we are discussing Rebbi Yishmael if he holds that Shinuy is Koneh (like the Rabbanan).

(a) When Rav Yehudah Amar Shmuel rules like Rebbi Shimon ben Elazar, he is referring to the depreciation of a stolen article. which he rules, is not Koneh.

(b) When Shmuel says 'Ein Shamin Lo le'Ganav ve'Lo le'Gazlan', on the other hand, he means - that one does not assess the value of a stolen article that depreciated, in order to pay the difference (should he decide to pay money). In fact, he keeps the corpse, and pays for the animal that he stole (because 'Shinuy is Koneh').

(c) We have no problem in reconciling this discrepancy in Shmuel according to Rava's interpretation of Rebbi Shimon ben Elazar - that it refers to a Shinuy de'Hadar (one that is reversible), whereas Shmuel's second ruling refers to Shinuy de'Hadar.

(d) According to Abaye, who establishes Rebbi Shimon ben Elazar by a permanent weakness (such as death or a broken leg), we will have to amend Rav Yehudah Amar Shmuel's statement to read - 'Amru Halachah ke'Rebbi Shimon ben Elazar', but he himself does not concur with it.




(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan learns from the Pasuk "ve'Heishiv es ha'Gezeilah Asher Gazal" - that the Ganav must return the stolen article as is ('Shinuy Eino Koneh').

(b) Our Mishnah nevertheless rules 'Meshalem ke'Sha'as ha'Gezeilah' - because of 'Takanas ha'Shavin'.

(c) We extrapolate from the Mishnah in Chulin (in connection with Reishis ha'Gez) 'Lo Hispik Litno Lo Ad she'Tzav'o, Patur - that 'Shinuy Koneh'.

(d) In order to establish Rebbi Yochanan like the S'tam Mishnah in Chulin, Rebbi Ya'akov explains our Mishnah - when the Ganav stole planed wood (and it is therefore a case of a Shinuy de'Hadar [a reversible Shinuy], like Abaye on the previous Daf).

(a) The Beraisa rules that if ...
1. ... Gazlanim and Malvei be'Ribis do Teshuvah and offer to pay - one may accept their offer.
2. ... the owner or the creditor does accept their offer - the Chachamim are displeased with what he did.
(b) Rebbi Yohanan dates this Beraisa from the days of Rebbi. It happened once in Rebbi's time - that a professional Ganav once decided do to Teshuvah, but he retracted when his wife pointed out that if he were to return everything that he ever stole, then even the belt that he wore would no longer belong to him. That is when he issued the current decree.
(a) The Beraisa rules that heirs whose father left money of Ribis (interest) - are exempt from returning it to the debtor (in spite of the fact that they know what the money is).

(b) We can infer from there - that the father himself was Chayav to return it, posing a Kashya on the Beraisa of Rebbi.

(c) We answer that in reality, even the father would have been Patur too, and the Tana mentions the heirs because of the Seifa - which obligates the heirs to return objects that can readily be identified as having been stolen by their father, out of respect for their father.

(a) We Darshen from the Pasuk "ve'Nasi *be'Amcha* Lo Sa'or" - the concession of cursing someone who does not behave like a Jew.

(b) Based on the fact that this concession extends to his children, who are under no obligation to honor and respect him, we ask why, seeing as their father took Ribis - on what grounds are they obligated to respect him.

(c) We answer this with a statement of Rav Pinchas - who established another case when the father had done Teshuvah, and hat is how we explain our case.

(d) The reason that their father still had the forbidden article in his possession, is simply - because he did Teshuvah just before he died, and did not manage to return it.

(a) Another Beraisa states 'ha'Gazlanim u'Malvei be'Ribis af-al-Pi she'Gavu, Machzirin'. What is wrong with this statement the way it stands is - the word 'she'Gavu'. If they did not claim the article then what makes them Gazlanim?

(b) We therefore amend the Beraisa to read - 'ha'Gazlanim u'Mai Niyhu, Malvei be'Ribis ... '.

(c) 'af-al-Pi she'Gavu' implies that if they had not yet claimed the interest the basic Din would nevertheless be applicable. The Din would then be - that we tear up the Sh'tar.

(d) Despite the fact that we do not accept their offer anyway, the point of 'Machzirin' is - to enable them to fulfil their moral obligation.

(a) We try to give the same answer with regard another Beraisa which states, with reference to shepherds Gaba'in and tax-collectors (who have stolen from many people) 'Teshuvasan Kashah, u'Machzirin le'Makirin'. The problem there with saying 'la'Tzeis Yedei Shamayim' is - that how will we then interpret 'Teshuvasan Kashah'?

(b) And the other problem with that answer is from the Seifa - which obligates them to pay any stolen money whose owners they cannot identify - towards communal needs ...

(c) ... which Rav Chisda explains to mean - water-pits, trenches and caves.

(d) We will now reconcile the Beraisa which permits returning money that one obtained illegally with the Beraisa of Rebbi, which forbids it - by establishing the latter one in an earlier period, prior to that of Rebbi.

(a) Alternatively, we can date both Beraisos after the Takanah of Rebbi, and yet the latter Beraisa obligates the culprits to return the money should they decide to do Teshuvah, on the basis of Rav Nachman, who qualifies Rebbi's Takanah - confining it forbidden money or articles that are no longer in the domain of the sinner (but not to money or articles that are intact).

(b) The Beraisa of Rebbi, which speaks about a belt - is really referring to the money that he received from the sale of the belt.

(c) The Mishnah in Iduyos says that if someone stole a Marish (a beam) and built into one's mansion - he is not obligated to pull down the house, in order to return the beam.

(d) Even though the Tana is speaking about a Marish which is still intact - he nevertheless absolves the Ganav from pulling down the house, in order to return the beam (aas if the beam was not intact), because of the huge loss involved.

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