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Bava Kama, 71

1) APPOINTING AN AGENT TO SLAUGHTER A STOLEN ANIMAL

QUESTION: The Gemara asks that a Beraisa seems to say that Rebbi Meir maintains that even a Chiyuv Misah (and not only a Chiyuv Malkus) does not exempt a person from having to pay. The Beraisa says that if a person stole an animal and slaughtered it on Shabbos, Rebbi Meir holds that he is still Chayav to pay Arba'ah v'Chamishah, even though the punishment for slaughtering on Shabbos is Misah. The Gemara answers that the Beraisa is referring to a case in which the thief appointed someone else to slaughter the animal for him, and the Shali'ach slaughtered it on Shabbos. Since the Ganav is responsible for the slaughtering, he is Chayav to pay Arba'ah v'Chamishah, but since he did not slaughter the animal on Shabbos (but rather his Shali'ach did), he is not Chayav Misah.

The Gemara challenges this answer by asking how can the Ganav be Chayav to pay Arba'ah v'Chamishah due to the Aveirah that the Shali'ach did? There is a general rule (Kidushin 42b) that when a person appoints a Shali'ach do to an Aveirah, the Aveirah is not attributed to the sender, but rather to the Shali'ach himself! Rava answers that the Chiyuv of Arba'ah v'Chamishah is different, because the verse (Shemos 21:37) compares Tevichah to Mechirah, teaching that just like Mechirah is done through someone else (i.e. the purchaser), so, too, the Ganav will be Chayav when the Tevichah is done through someone else (i.e. a Shali'ach). D'Vei Rebbi Yishmael learns this from a different source -- from the extra word "or" ("O") in the verse, "If a person steals an ox or sheep and then slaughters *or* sells it, he must repay five oxen for each ox, and four sheep for each sheep" (Shemos 21:37), which teaches that one can become Chayav to pay Arba'ah v'Chamishah even through the act of a Shali'ach. D'Vei Chizkiyah derives this from a third source -- from the extra word "for" ("Tachas") in the verse ("he must repay five oxen for each ox, and four sheep *for* each sheep").

Why does Rava, an Amora, give a different source than the two Tana'ic sources, those of d'Vei Rebbi Yishmael and d'Vei Chizkiyah?

ANSWER: The BEIS YAKOV in Kesuvos (33b) answers as follows. The Gemara in Me'ilah states that since a Shali'ach *can* be appointed to do the Aveirah of Me'ilah (and the Aveirah is considered to have been done by the sender), as the verses with regard to Me'ilah teach, even a Shali'ach who is a Cheresh, Shoteh, or Katan -- who are normally invalid for being appointed as a Shali'ach -- can make the sender Chayav. The same, therefore, must apply to the case of making a Shali'ach to slaughter a stolen animal -- even a person who normally cannot be appointed as a Shali'ach *can* be a Shali'ach to obligate the Ganav to pay Arba'ah v'Chamishah.

If we only had the Derashah of the extra word "O" or the extra word "Tachas," we would not have known that a Tevichah done by someone who is normally not a valid Shali'ach can make the Ganav obligated to pay. We would have thought that only someone who can be a valid Shali'ach can make him obligated. Therefore, Rava teaches an additional source, the comparison of Tevichah to Mechirah, in order to teach that any person appointed by the Ganav, even a person who is not normally a valid Shali'ach, will make the Ganav Chayav by slaughtering the animal.

QUESTION: The Gemara cites a Mishnah which states that even though one who slaughters an animal on Shabbos or Yom Kipur is Chayav Misah (or Kares), nevertheless the Shechitah is a valid Shechitah.

How can the Shechitah be a valid Shechitah? There is a rule that if one does any act which the Torah prohibits, that act does not take effect ("... Iy Avid Lo Mehani")! (See Insights to 70:2.)

ANSWERS:

(a) Earlier (70:2), we cited the answer of the SHACH to a similar question. The SHACH (CM 208:2) writes that the rule that if one does an act prohibited by the Torah, that act is not effective, applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through doing an Isur. The only way that one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to slaughtering an animal on Shabbos, since it is possible to perform the Shechitah in a permissible manner (i.e. by doing it on a weekday), this rule (that if one does an act prohibited by the Torah, that act is not effective) does not apply. (See Insights there.)

(b) REBBI AKIVA EIGER answers this question like he answers the question earlier. He answers that the rule that "Iy Avid Lo Mehani," an act that was done b'Isur is ineffective, applies only when the Isur that was done will be rectified in some way by saying that the act does not take effect. For example, in the case of Temurah, if his act takes effect, then he will transgress the Isur against making an exchange for a sanctified animal. If his act does not take effect, then he does not transgress the Isur of Temurah. In contrast, in the case of a person who slaughters an animal on Shabbos, even if we say that his act does not take effect and the Shechitah is not valid, nevertheless he will have done an act of Isur, of performing the Melachah of Shechitah on Shabbos.

(c) RAV ELCHANAN WASSERMAN (Kovetz He'oros 76:3-4) writes that any act done by a person that has a Halachic consequence can work in either one of two ways. First, the Halachic effect can be accomplished by the person himself, such as in the case of Kinyanim, Kidushin, and Gerushin, where the person himself makes a certain Halachic status take effect. Second, it can occur without the person, but through the action alone, such as in the case of Shechitah (it is the act of Shechitah which permits the animal). Even though in such a case it is necessary to have a person doing the action ("Ko'ach Gavra"), nevertheless it is not the *person* who is permitting the meat, but it is the *Shechitah* which is permitting the meat (the requirement that it be done by a person is only a *condition* in the Matir of Shechitah).

Therefore, the principle of "Iy Avid Lo Mehani" does not apply to Shechitah, because this principle applies only where the Halachic status comes about through the person himself; where the person sinned, the Halachic status does not come about. With regard to Shechitah, though, the change in Halachic status (i.e. the meat becoming permitted) occurs as a result of the act of Shechitah itself and is not related to the person's will or intent. The independent act of Shechitah causes the meat to become permitted, and even though the person did an Aveirah while doing the Shechitah, it is not the *person* making the meat permitted, and therefore the Shechitah remains valid.

71b

QUESTION: The Gemara asks that according to the opinion that holds that the results of a prohibited act done on Shabbos (such as food that was cooked on Shabbos, or an animal that was slaughtered on Shabbos) are *permitted* mid'Oraisa, why do the Chachamim in the Beraisa (71a) say that the Ganav who slaughtered the animal on Shabbos is exempt from paying Arba'ah v'Chamishah? The Shechitah that he did *is* a valid Shechitah ("Shechitah Re'uyah")! The Gemara answers that, indeed, the Ganav is Chayav Arba'ah v'Chamishah for such a Shechitah, and when the Chachamim in the Beraisa say that he is exempt, they are referring to the other types of Shechitah (Shechitah to Avodah Zarah, and Shechitah a Shor ha'Niskal) that are mentioned in the Beraisa.

Why, then, does the Beraisa mention the case of one who slaughters the animal on Shabbos? If Rebbi Meir in the Beraisa obligates the Ganav to pay Arba'ah v'Chamishah for a Shechitah that is "Einah Re'uyah," then certainly he should obligate the Ganav for a Shechitah done on Shabbos, which is a Shechitah *Re'uyah*! Why does he need to mention that case at all, especially since the Chachamim do not argue with it?

ANSWERS:

(a) TOSFOS in Kesuvos (34a, DH Ki) answers that Rebbi Meir is making a "Zu Af Zu" statement, mentioning the obvious case first and then the case with the greater Chidush: not only is the Ganav who slaughters the animal on Shabbos -- in which case the Shechitah is a valid Shechitah -- obligated to pay Arba'ah v'Chamishah, but even the Ganav who slaughters the animal to Avodah Zarah or who slaughters a Shor ha'Niskal -- in which case the Shechitah is *not* a valid Shechitah -- is also obligated to pay Arba'ah v'Chamishah.

(b) The TOSFOS HA'ROSH there answers that since the cases of Shabbos and Avodah Zarah (with regard to Mechirah) are mentioned together in our Mishnah, the Beraisa also teaches the cases of Shechitah on Shabbos and Shechitah to Avodah Zarah together, even though there is no Chidush in teaching Shechitah on Shabbos.

(c) REBBI AKIVA EIGER (Chidushim to Kesuvos there) answers as follows. The Gemara here continues and asks that according to Rebbi Meir, why is the Ganav obligated to pay Arba'ah v'Chamishah when he slaughters the animal to Avodah Zarah? We know that from the moment that he begins the Shechitah with intention that it be done for Avodah Zarah, the animal becomes Asur b'Hana'ah. When he completes the Shechitah, he has slaughtered an item that was Asur b'Hana'ah and which was no longer considered to be the property of the owner (since an item that is Asur b'Hana'ah was no monetary value and has no ownership). Why must he pay Arba'ah v'Chamishah, then, if he did not slaughter the person's animal? Rava answers that the Ganav must pay in a case where he stated explicitly that the animal will not be used for Avodah Zarah until the *end* of the Shechitah.

The Gemara then asks the same question from the case of Shor ha'Niskal. A Shor ha'Niskal is Asur b'Hana'ah and thus is not considered to be the property of the owner. Rava answers that the case is referring to when the animal was stolen from the house of a Shomer, after it did the damage while in the hands of the Shomer. The Shomer is still obligated to pay back the animal to the original owner, and by stealing the animal from him, the Ganav causes a loss to the Shomer (since the Shomer could have fulfilled his obligation by returning the Shor ha'Niskal to the owner, in accordance with the view of Rebbi Yakov).

This answer of Rava -- that the Ganav stole the animal from the house of the Shomer -- also suffices to answer the first question, why Rebbi Meir says that the Ganav who slaughters the animal for Avodah Zarah is Chayav, because the Ganav is causing a loss to the Shomer, since the Shomer could have returned this Shor to the original owner. Therefore, the Gemara no longer needs Rava's first answer (that the Ganav said that only with the end of the Shechitah does he want the animal to be used for Avodah Zarah).

According to this, had the Beraisa not included the case of a Ganav who slaughters the animal on Shabbos, we would not have known that in a case where the Ganav appoints someone else to slaughter the animal (which is the case that Rebbi Meir in the Beraisa is discussing, according to the Gemara earlier) that the Ganav would be Chayav when the Shali'ach slaughters the animal on Shabbos. We would have assumed that when the Beraisa says that a Ganav who slaughters the animal for Avodah Zarah is Chayav and there is no "Kam Lei bed'Rabah Minei," it is because he specifically wants the *beginning* of the Shechitah to make the animal served for Avodah Zarah, and by the time the end of the Shechitah is performed, there is no Chiyuv Misah but only a Chiyuv to pay Arba'ah v'Chamishah. By adding the case of Shechitah done on Shabbos, the Tana is teaching that even where the Ganav is Chayav Misah for the *end* of the Shechitah (which is the Halachah of the Melachah of Shabbos), he is still Chayav to pay Arba'ah v'Chamishah, and it must be, therefore, that the case is referring to where the Ganav appointed someone else to do the Shechitah, for otherwise he would be exempt because of "Kam Lei bed'Rabah Minei." That is why it is necessary to teach the case of the Ganav who slaughters the animal on Shabbos.