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Bava Kama, 69

1) BEING "MAKDISH" AN ITEM WHICH IS NOT YOURS

QUESTION: Rebbi Yochanan rules that an item that was stolen, for which the original owner did not yet have Yi'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him, and the owner cannot make it Hekdesh because it is not presently in his domain.

The ruling that the original owner cannot make the item Hekdesh is indeed a Chidush. Rebbi Yochanan is teaching us that even though the item is still legally his, he cannot make it Hekdesh because Hekdesh requires that the item also be physically in his domain. (The Acharonim discuss whether his inability to make the item Hekdesh when it is not in his domain is because of the fact that he cannot make use of the item and exercise his full rights of ownership over the item, and therefore his full ownership of the item is lacking, or whether it is because the Kinyan of Gezeilah that the thief made on the item removed the item partially from the ownership of the rightful owner.)

However, what is Rebbi Yochanan's Chidush with regard to the thief? It is obvious that the thief cannot be Makdish the item -- he does not own it! We certainly would not think that a person can sell an item that does not belong to him, so why would we think that the thief can be Makdish an item that is not his?

ANSWERS:

(a) TOSFOS in Kidushin (52a, DH v'Hu) writes that, indeed, Rebbi Yochanan is only teaching us a Chidush with regard to the owner's inability to be Makdish the item, and there is no Chidush with regard to the thief's inability to be Makdish it. He only adds that the thief cannot be Makdish it as an aside ("Agav Gerara;" RITVA).

(b) The RITVA in Kidushin writes that even with regard to the thief, there is a Chidush in teaching us that he cannot be Makdish the item. We know that if the owner has Yi'ush, then the thief *is* able to be Makdish the item that he stole, since he is Koneh it through Yi'ush. We might have thought that even when the thief is Makdish the item when the original owner has not had Yi'ush, the item should still be Hekdesh out of doubt -- since there is an opinion (that of Rebbi Shimon) that maintains that "Stam Gezeilah Yi'ush Ba'alim" -- we assume that the owner had Yi'ush in every case of Gezeilah. Therefore, Rebbi Yochanan teaches that we are not afraid that the owner had Yi'ush until there is clear evidence that he had Yi'ush.

(c) RAV ELCHANAN WASSERMAN (Kovetz Shi'urim to Kidushin, #42) answers that there are two elements involved in making an item Hekdesh. The first element is the actual Kedushah which the item attains. The second is the monetary acquisition (Kinyan Mamon) obtained by Hekdesh over the item.

Rav Elchanan suggests that when an item is made Hekdesh with Kedushas ha'Guf, the monetary acquisition comes as a result of the Kedushah that takes effect on the item (and not vice versa), while when an item is made Hekdesh with Kedushas Damim, the Kedushah comes as a result of the monetary acquisition.

According to this, the Chidush of Rebbi Yochanan's ruling is understood. Had Rebbi Yochanan not taught that the thief cannot be Makdish the item, we might have thought that one can make an item Hekdesh with Kedushas ha'Guf even when the item does not belong to him, because the act of making the item Hekdesh gives it Kedushah, and then, automatically, as a result of the Kedushah, the Kinyan Mamon to Hekdesh takes effect. It is not similar to selling an item, which one cannot do unless he is in possession of the item, for he has no right to transfer the item to another's ownership. With Hekdesh, though, *he* is not transferring the ownership; he is giving it Kedushah, and automatically the ownership is transferred. Therefore, Rebbi Yochanan must teach that a thief *cannot* be Makdish the item, because making something Hekdesh requires that the item be in the person's domain and ownership, as Rebbi Yochanan derives from the verse.

(d) We might also answer based on the words of TOSFOS in Shabbos (58a, DH Af Al Pi). Tosfos writes that making an item Asur b'Hana'ah is considered a Shinuy Ma'aseh on the item. Accordingly, the thief *should* be able to be Makdish the item, since doing so makes the item Asur b'Hana'ah and it should be a Shinuy Ma'aseh with which he is Koneh the item (the Hekdesh and the Shinuy coming simultaneously). Indeed, the IMREI YOSHER (II 197:1) asks why a thief cannot be Makdish the item that he stole for this reason (see there for the answer that he gives). Because this is a strong reason to say that the thief *should* be able to be Makdish the item, Rebbi Yochanan must teach that he nevertheless cannot be Makdish it (since the verse teaches that it must be completely in his domain in order to be Makdish it). (I. Alshich)

QUESTIONS: Raban Shimon ben Gamliel rules that the requirement to mark one's fruits of Kerem Reva'i in order for people to know that the fruits need to be redeemed before being eaten applies only during the Shevi'is year, when those fruits are Hefker and may be taken by anyone. During any other year, though, one is not required to mark his Kerem Reva'i fruits, because anyone who comes to take them without his permission is a thief, and we say "feed the evildoer [a prohibited food] and let him die."

There are a number of questions on this principle proposed by the Gemara of "feed the evildoer and let him die."

(a) First, we know that the Torah commands, "Lifnei Iver Lo Siten Michshol" (Vayikra 19:14), which means that it is prohibited to cause another person to transgress an Aveirah. Why, then, is there no requirement to mark one's fruits as Kerem Reva'i in order to prevent another person (the thief) from transgressing the Aveirah of eating sanctified fruits without redeeming them?

(b) Second, if the law of "Lifnei Iver" does not apply in this case for some reason, it should still be prohibited, because in this case one is not merely "putting a stumbling block" of sin in front of a person, letting him do an Aveirah, but rather in this case it is as if one is actually feeding the prohibited item directly to the person! That certainly is not allowed, even without the prohibition of "Lifnei Iver!"

(c) Finally, we know that there is a principle of "Kol Yisrael Arevin Zeh la'Zeh" -- every Jew is responsible to help every other Jew do Mitzvos and refrain from Aveiros. Why, then, do we not say in this case that one must do whatever he can to prevent another Jew from doing an Aveirah because of the requirement of "Arvus?"

ANSWERS:

(a) Perhaps the prohibition of "Lifnei Iver Lo Siten Michshol" applies only when one actively places the stumbling block of sin in front of the other person (through "Kum v'Aseh"). In the case of our Gemara, though, the prohibited item (the fruit of Kerem Reva'i) was there already, and one is passively letting (through "Shev v'Al Ta'aseh") the other person eat it. "Lifnei Iver" does not apply in such a situation.

This approach answers the first question. However, this approach seems to be contradicted by the wording of the Gemara, which says, "*Feed* the evildoer and let him die," implying that one may actively ("Kum v'Aseh") cause the evildoer to sin.

(b) The CHAZON ISH (Demai 8:9) writes that when the Gemara says "*feed* the evildoer," it does not literally mean that one may feed someone a food that is prohibited. Rather, it means that the owner of the fruit is not required to make an effort to save the evildoer from transgressing the prohibition of Kerem Reva'i. Then reason for this is because the person eating the fruit is willfully taking the fruit, knowingly transgressing the Isur of Gezeilah. Even though he does not know that he is also transgressing the Isur of Kerem Reva'i, the fact that he knows that he is transgressing the Isur of Gezeilah removes from the owner any responsibility for the thief's actions and it is not considered as though the owner is causing the thief to sin; the thief, anyway, is not permitted to take the fruit because of the Isur of Gezeilah, and yet he is still taking the fruit unlawfully. Therefore, the owner is exempt from responsibility to stop him from eating the fruit of Kerem Reva'i. Of course, to offer and feed someone such fruit is certainly prohibited.

This approach of the Chazon Ish also answers the first question. In our case, the principle of "Lifnei Iver" does not apply because the transgressor is purposely taking the item himself, knowingly transgressing a different Isur of Gezeilah. Hence, it is not called placing a stumbling block before him, and nor is it even considered passively ("Shev v'Al Ta'aseh") placing a stumbling block before him.

(We see from the words of the Chazon Ish that the Isur of "Lifnei Iver" also applies when one passively, through "Shev v'Al Ta'aseh," places a stumbling block of sin before someone else, in contrast to the approach we suggested to the first question.)

(See also SHACH in Yoreh De'ah 151:6, DAGUL MERAVEVAH and GILYON MAHARSHA there, cited by YOSEF DA'AS here.)

(c) Regarding why the owner of the Kerem Reva'i fruits is not obligated to mark his fruits as Asur because of the rule of "Arvus," RAV YERUCHAM FISHEL PERLOW (in his Hagahos to Sefer ha'Mitzvos of Rav Sa'adyah Ga'on, 3:57, pp. 209-210) answers as follows. The obligation of "Arvus" applies only when it is within one's ability to effectively protest against the transgressor's act of sinning (as he proves from Gemaras in Sanhedrin and Shevu'os). Here, though, the owner's protest will not be effective, because the transgressor anyway intends to transgress the Isur of Gezeilah. Raban Shimon ben Gamliel maintains that since there is no obligation of "Arvus" with regard to the Isur of Gezeilah (since he is going to steal anyway), there is also no obligation of "Arvus" with regard to the other Isur (i.e. Kerem Reva'i) that he will be transgressing if he eats this fruit.

69b

QUESTION: Rebbi Yochanan (69a) states that an item that was stolen, for which the original owner did not yet have Yi'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him, and the owner cannot make it Hekdesh because it is not presently in his domain. The Gemara asks that Rebbi Yochanan seems to contradict himself, because Rebbi Yochanan also states that whenever a ruling is stated anonymously in a Mishnah, the Halachah follows that opinion, and we find a Mishnah (Ma'aser Sheni 5:1) that implies that the owner of an item *is* able to effect a change in the status of the item even though the item is not in his domain!

The Gemara here (69b) answers that Rebbi Yochanan found another anonymous Mishnah (Bava Kama 62b) and ruled in accordance with it, and that he ruled like that Mishnah over the other anonymous Mishnah (in Ma'aser Sheni) because a verse supports the ruling of this other anonymous Mishnah.

TOSFOS (DH Ela) cites RABEINU TUVYAH who asks that Rebbi Yochanan still seems to contradict himself. Rebbi Yochanan rules that Bereirah does not work ("Ein Bereirah") while he also rules like the anonymous Mishnah, and the anonymous Mishnah (in Demai 7:4) rules that Bereirah *does* work! Even though there is another anonymous Mishnah (that of "Tzenu'in" in Ma'aser Sheni 5:1) which does not hold that Bereirah works, for what reason would Rebbi Yochanan rule like that anonymous Mishnah over the Mishnah in Demai?

ANSWERS:

(a) TOSFOS answers that perhaps when Rebbi Yochanan states that Bereirah does not work, he means that it does not work only where one did not make an explicit condition that it should work (stating that the present status should be determined by a future event). The case of the Mishnah in Demai involves a person who *did* make an explicit condition (stating that Terumah will take effect now on the two Lugin of wine that he will, in the future, separate from the rest of the wine).

This answer is problematic, as TOSFOS in Gitin (25b) asks, and as the MAHARSHA and MAHARAM here ask: If it is true that Rebbi Yochanan agrees that Bereirah works in a case where the person made an explicit condition, then what is our Gemara's question when it asks a contradiction from Rebbi Yochanan's statement regarding "Achin she'Chalku" (where he said that brothers who inherit property are considered like buyers, and each one must return his property to the other at the Yovel year, since Bereirah does not work to determine that the property that each brother received was the property that was truly intended for him), to Rebbi Yochanan's statement regarding "Kol ha'Mislaket" which implies that he holds that Bereirah does work? In the case of "Kol ha'Mislaket," the person made an explicit condition, and that is why Rebbi Yochanan says that Bereirah works there!

Tosfos in Gitin gives two answers to this question.

First, Tosfos says that indeed the Gemara could have given this as an answer to its question here, and differentiated between a case of Bereirah where one made an explicit condition, and a case of Bereirah where one made no condition. The Gemara, however, preferred to answer that Rebbi Yochanan reads the Mishnah in Ma'aser Sheni as "Kol ha'Nilkat" and not "Kol ha'Mislaket," and that he found another anonymous Mishnah which he ruled like. The Gemara prefers this answer because with this answer we do not have to change the Girsa of the Mishnah (from "Nilkat" to "Mislaket"), and nor do we have to switch the opinions of the Tana'im.

Second, Tosfos answers that if the Gemara would have answered that Rebbi Yochanan holds that Bereirah works when the person makes an explicit condition, the Gemara still would have had a question from another ruling of Rebbi Yochanan in Gitin (25a), where Rebbi Yochanan rules that when a man writes a Get but stipulates that he will decide later to which wife he wants to give it, the Get is entirely invalid because Bereirah does not work. This answer would not have sufficed to answer that question, because in that case Rebbi Yochanan rules that Bereirah does not work even though the person made an explicit condition.

(b) The BEIS EFRAIM (EH 3:122, p. 83) answers that Rebbi Yochanan ruled like the anonymous Mishnah (that of "Tzenu'in" in Ma'aser Sheni 5:1) that holds that Bereirah does not work, and not like the anonymous Mishnah (in Demai 7:4) that holds that Bereirah *does* work, because the Mishnah in Demai is clearly a minority opinion (the opinion of Rebbi Meir). The Mishnah in Ma'aser Sheni, on the other hand, is the opinion of Rebbi, Rebbi Yosi, and Rebbi Shimon. Rebbi Yochanan chose to rule like an anonymous Mishnah which follows the opinion of the majority, instead of ruling like an anonymous Mishnah which follows the opinion of a minority opinion.

(c) The BEIS EFRAIM suggests another answer, which is also the answer given by the ARUCH LA'NER in Sukah (23b). They write that the Gemara in Beitzah explains that according to the opinion that holds "Ein Bereirah," that applies only with regard to matters that are mid'Oraisa. For matters that are mid'Rabanan, Bereirah *does* work. Therefore, we cannot ask a question on Rebbi Yochanan from the anonymous Mishnah in Demai, because that case is discussing Terumah *d'Rabanan*, according to RABEINU TAM (cited by Tosfos in Bava Metzia 88a, DH Tevu'as), who holds that one who buys produce after it has been processed with Miru'ach (smoothing the pile) is obligated to separate Terumos u'Ma'aseros only mid'Rabanan. Therefore, Rebbi Yochanan can agree with that Mishnah that Bereirah works, since it is only applying Bereirah to a Halachah d'Rabanan.

(The Aruch la'Ner concludes by writing that "after I wrote this answer, I found that the PNEI YEHOSHUA in Gitin also writes that according to the opinion of Rabeinu Tam, the question of Tosfos is answered, and I rejoiced in having answered like he answers.")