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Bava Kama, 66

1) THE DIFFICULTY OF AN EXTRA WORD

QUESTION: The Gemara (65b) says that Beis Shamai and Beis Hillel argue whether an item given in exchange for an Esnan Zonah may be offered as a Korban. Beis Shamai prohibits it, as he derives from the extra word, "Gam" ("also"), in the verse that prohibits offering an Esnan Zonah upon the Mizbe'ach (Devarim 23:19). The Gemara asks what Beis Hillel does the extra word "Gam," and it concludes that this is indeed a difficulty on the view of Beis Hillel.

Earlier (54a), Rava says that the word "Chamor" ("donkey") in the verse discussing Bor (Shemos 21:33) is a difficulty on the view of Rebbi Yehudah, and the word "Seh" in the verse discussing Aveidah (Shemos 22:8) is a difficulty on the view of everyone. Why does Rava there not also mention our Gemara, which says that the word "Gam" in the verse discussing Esnan is a difficulty on the view of Beis Hillel?

ANSWERS:

(a) TOSFOS earlier (54a, DH Chamor d'Bor; see also Bava Metzia 27a) answers that Rava there mentions only "Chamor" of Bor and "Seh" of Aveidah because they are similar to each other, in that they are both animals. Similarly, the TOSFOS HA'ROSH (Bava Metzia 27a) writes that "Chamor" and "Seh" are "Inyan Echad."

(b) The SEFER YERE'IM (2:293) answers that Rava mentions only "Chamor" of Bor and "Seh" of Aveidah, because the laws of those subjects are taught primarily in Maseches Bava Kama. The subject of Esnan Zonah, on the other hand, in which the extra word "Gam" is written, is a subject whose Halachos are not discussed primarily in Bava Kama, but rather in Maseches Temurah.

(c) The PNEI YEHOSHUA here explains in a different way. Why, he asks, does the Gemara say that the word "Gam" in the verse is a difficulty on the view of Beis Hillel? We should answer that Beis Hillel needs the word "Gam" to include a "Shinuy ha'Chozer," a change made to the item that is not permanent, for with this, too, one is not Koneh with regard to Esnan, and it needs its own Ribuy in the verse!

This question is not a difficulty according to Rebbi Yochanan and Rav Chisda, who hold that for non-Hekdesh purposes (such as returning a stolen item to its owner), one is not Koneh with a "Shinuy ha'Chozer," and thus certainly for Hekdesh purposes one is not Koneh with such a Shinuy, because such an item is exceedingly loathsome to Shamayim. However, *Rabah* argues and maintains that one *is* Koneh with a "Shinuy ha'Chozer" for non-Hekdesh purposes, and, consequently, he should need a Ribuy (i.e. the extra word "Gam") to teach that one is *not* Koneh such an item with regard to Esnan!

The answer must be that this Sugya is not following the view of Rabah, but rather the view of Rebbi Yochanan and Rav Chisda who hold that one is *not* Koneh, even for non-Hekdesh purposes, with a "Shinuy ha'Chozer." According to Rabah, though, we indeed need the word "Gam" to teach that one is not Koneh an item with a "Shinuy ha'Chozer" with regard to Esnan Zonah, and thus the word is no longer extra according to Beis Hillel.

Since the word "Gam" is not extra according to Rabah's view, Rava earlier (54a) did not mention it as one of the difficulties of extra words!

(See MAHARSHA in Mahadura Basra, who asks the same question as the Pnei Yehoshua -- why the Gemara does not answer that according to Beis Hillel, the word "Gam" is necessary to teach that one is not Koneh with a "Shinuy ha'Chozer." The Maharsha gives two answers. His first answer is like that of the Pnei Yehoshua, that the Gemara is saying that Beis Hillel's opinion is difficult according to the opinions that argue with Rabah. See there for his second answer.)

(d) The ZERA AVRAHAM (2:54:2; see HAGAHOS PRI YITZCHAK there) answers that the Gemara earlier (54a) does not mean to say that *both* "Chamor" of Bor *and* "Seh" of Aveidah are extra. Had the Torah written only one of them, it would have been necessary, for it would have taught that Tovas Hana'ah has the status of monetary value (see there). The Gemara is asking that once the Torah writes both of them, *one* of them is extra. In contrast, the extra word "Gam" according to Beis Hillel is a difficulty in and of itself. According to this approach, it is clear why Rava (on 54a) did not mention "Gam" according to Beis Hillel.

66b

QUESTION: The Gemara discusses whether a thief is Koneh the item that he stole through "Yi'ush." Rav Yosef attempts to prove from a Beraisa that one is not Koneh through Yi'ush. The Beraisa says that if one steals Chametz, and then Pesach comes and passes, the thief need only give back the Chametz to the owner (saying, "Here is your item before you, take it"), and he does not have to compensate him with money, even though the Chametz is now prohibited to be used. If a thief is Koneh with Yi'ush, then the thief who stole the Chametz should have acquired the Chametz through Yi'ush (since the owner certainly had Yi'ush once Pesach came and made the Chametz prohibited), and he should have to compensate the owner with money! Rabah answers that the case of the Beraisa is different, because there, even though the owner had Yi'ush, the thief did not want to be Koneh the Chametz. In a normal case, though, where the thief does want to be Koneh the stolen item, then, asserts Rabah, he is Koneh it through Yi'ush.

This answer is very difficult to understand. What difference should it make if the thief did or did not intend to be Koneh the item he stole? The fact that the original owner had Yi'ush caused the item to leave his domain and the item is no longer his! How, then, can the thief say, "Here is your item before you, take it?"

ANSWERS:

(a) The KETZOS HA'CHOSHEN (406:2) proves from here that Yi'ush is not considered complete Hefker (as the NESIVOS (262) writes). That is, when the owner of an item has Yi'ush, it is not considered as though he is making his item Hefker. Rather, Yi'ush works in that it provides a "Heter Zechiyah," an allowance to take possession of the item, for whomever finds it. That is, the Torah gives permission to anyone to take possession of the item after the owner has had Yi'ush. However, as long as no one has yet taken possession of the item, the item has not left the possession of the original owner completely.

A practical consequence of viewing Yi'ush in this way is a case where the owner has Yi'ush and then stops having Yi'ush -- for example, he finds his lost object (and now he no longer despairs of ever getting it back) but before he has a chance to pick it up from the ground, someone else comes along and picks it up in order to be Koneh it. If Yi'ush is considered like Hefker, then the person who picked up the item first is Koneh it. If, on the other hand, Yi'ush is not like Hefker but rather it just provides an allowance to be Koneh the item from the domain of the owner, then this applies only while the owner has Yi'ush. If he no longer has Yi'ush (because he has found his item), the item is completely in his possession and no one else has permission to take it.

This explains why, in our Gemara, the thief can say, "Here is your item before you." Since he does not want to be Koneh it, it is still in the domain of the original owner. The original did not make it Hefker through his Yi'ush, but he merely provided an allowance for anyone to be Koneh it. Since no one (such as the thief) wanted to be Koneh it, it remains in his domain. (RAV SHIMON SHKOP, in Chidushim to Bava Metzia 21:7, says that the Ketzos ha'Choshen's proof from our Gemara for this concept of Yi'ush "is a proof that has not rebuttal.")

(b) The Hagahos in the TERUMAS HA'KRI (262:1), by the grandson of the author, proposes a way to refute the proof of the Ketzos ha'Choshen from our Gemara, and he gives a different answer to explain our Gemara. He points out that with regard to *mistaken* Yi'ush ("Yi'ush b'Ta'us"), the Poskim write that such Yi'ush does not work and is not considered Yi'ush. Thus, if someone has Yi'ush that he will never retrieve his object for a given reason, and then it becomes clear that that reason did not exist, the Yi'ush of the object does not take effect and the object remains in his domain completely.

The case of our Gemara is a similar case. In the case of our Gemara, the owner of the Chametz had Yi'ush because he assumed that the thief would burn the Chametz before Pesach in order to fulfill the Mitzvah of destroying the Chametz. The thief, though, did not burn the Chametz. Had the owner known that the thief was not going to destroy the Chametz, he never would have had Yi'ush, and hence his Yi'ush is a "Yi'ush b'Ta'us" and does not take effect. Therefore, the thief can say to him, "Here is your item before you" and he does not have to compensate him with money.

According to this explanation, though, why does the Gemara have to answer that the thief did not want to be Koneh the Chametz? Even if he *did* want to be Koneh the Chametz, he would not have been Koneh it because the Yi'ush of the owner turned out to be an invalid Yi'ush!

The Hagahos to the Terumas ha'Kri answers that the only time that a mistaken Yi'ush does not work is when the finder (or thief) of the item wants to be Koneh it after the mistake becomes evident. In our case, though, had the thief wanted to be Koneh the Chametz, his intention would have been *before* it became clear that the Yi'ush was done in error. Consequently, even after it becomes evident that the Yi'ush was done in error, the right to be Koneh does not become invalidated l'Mafre'a, retroactively. Therefore, the Gemara says that the thief did not want to be Koneh the item, and that is why the item is still in the domain of the owner after the mistaken Yi'ush.

(c) RAV YITZCHAK ELCHANAN SPECTOR zt'l (in BE'ER YITZCHAK) also refutes the proof of the Ketzos ha'Choshen and argues with him regarding how Yi'ush works. He explains our Gemara as follows.

Even if Yi'ush works by making the item Hefker, the thief can still give back the Chametz and say, "Here is your item before you." We know that even though Chametz becomes Asur on Pesach (and thus it is like it is ownerless), a person still transgresses the Isur of possessing Chametz because the Torah places the Chametz back into the owner's domain in order to be Mechayev him for "Bal Yera'eh" and "Bal Yimatzei." For this reason, the thief can say to the original owner to take back his Chametz, because the Torah itself made the Chametz be in the domain of its owner.

If, however, the thief had intention to be Koneh the Chametz, then he would have been Koneh it through Yi'ush. The Torah would not have placed the Chametz back into the possession of the original owner to be Mechayev him for "Bal Yera'eh" and "Bal Yimatzei," since someone else was Koneh the Chametz (see NODA B'YEHUDAH II:63, and TZELACH to Pesachim 6a).

Rav Yitzchak Elchanan questions this answer, though, based on the words of the SHITAH MEKUBETZES (86a) and NODA B'YEHUDAH (I:20), who write that one whose Chametz is stolen does not transgress the Isurim of "Bal Yera'eh" and "Bal Yimatzei," even when the thief does not have intention to be Koneh it. We see, then, that according to the Shitah Mekubetzes and Noda b'Yehudah, the Torah does *not* place the Chametz into the domain of the owner in such a case. Hence, the question returns -- why can the thief say to the original owner, "Here is your item before you?"

(We can ask further on this answer that this Gezeiras ha'Kasuv -- that the Torah places Chametz back into the domain of the owner -- is *only* to be Mechayev him for the Isurim of "Bal Yera'eh" and "Bal Yimatzei." It does not make him, however, the full owner of the Chametz, since the Chametz is Asur to him. Rav Shimon Shkop zt'l infers this from the wording of the Gemara in Pesachim that says the Torah makes the Chametz "*like* (k'Ilu) it is in his domain," but not that it actually puts it into his domain. -I. Alshich)

(d) RAV YITZCHAK ELCHANAN, therefore, gives a second answer. He writes that even if Yi'ush works like Hefker and removes the Chametz from the owner's possession entirely, the thief can still say, "Here is your item before you," as long as he (nor anyone else) has been Koneh the Chametz. This is because we learn (66a) from the verse, "v'Heshiv Es ha'Gezeilah *Asher Gazal" (Vayikra 5:23), that one must return an item "k'Ein she'Gazal," like the item that he stole. The Chametz that the thief is holding and wants to return is "k'Ein she'Gazal." If the Yi'ush had been due to the negligence of the thief in taking care of the Chametz, then the thief would not be able to say, "Here is your item before you." Here, though, the Yi'ush was due to the fact that Pesach arrived, and not due to any act of Peshi'ah of the thief, and therefore the thief is entitled to give back the Chametz and say, "Here is your item before you," due to the Gezeiras ha'Kasuv of "Asher Gazal."