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Bava Kama, 68

1) AS HE SAID ELSEWHERE

QUESTION: The Mishnah (62b) states that a second Ganav who steals a stolen item from the first Ganav does not pay Tashlumei Kefel. Rav explains that this applies only when the original owner did not have Yi'ush. If he had Yi'ush, then the first Ganav was Koneh the item through Yi'ush, and when the second Ganav steals it from him, he is stealing an item that is the property of the first Ganav, and he must pay Kefel. Rav Sheshes challenges Rav's statement from a Beraisa, in which Rebbi Akiva says that the reason a Ganav who sells an animal that he stole must pay Tashlumei Arba'ah v'Chamishah is because "he became rooted in sin," meaning that he added a Shinuy Reshus to the Yi'ush. According to Rav, though, if there was Yi'ush, then the Ganav was Koneh the item and is now selling his own item, and he should not have to pay Arba'ah v'Chamishah! The Gemara answers, "As Rava said [elsewhere]: [the Ganav must pay Arba'ah v'Chamishah] because he repeated his sin" (that is, not only did he steal, but he then sold what he stole; see next Insight). Thus, according to Rava, the reason a Ganav must pay Arba'ah v'Chamishah is not because he "became rooted in sin," effecting a Shinuy Reshus after Yi'ush, but even when he sells the animal before Yi'ush occurs he must pay Arba'ah v'Chamishah because he repeated his sin.

Why does the Gemara say, "As Rava said [elsewhere]," implying that he made this statement ("because he repeated his sin") with regard to another Mishnah or Beraisa? The Gemara later on this Amud states clearly that it was with regard to this very Beraisa of Rebbi Akiva that Rava made this statement! The Gemara should have answered by saying, "But Rava said [with regard to this Beraisa] that it is 'because he repeated his sin'!"

(The same question applies to the Gemara's citation of Rav Nachman's statement on the Beraisa later.)

ANSWER: The SHITAH MEKUBETZES answers that Rava (and Rav Nachman) did not say his statement with regard to the Beraisa. Rather, Rav Sheshes, later in the Gemara, wanted to prove his opinion (that a Ganav who sells the stolen animal before Yi'ush is exempt) from a Beraisa, and Rava refutes his proof by explaining that the word "Nishtaresh" means "Shanah" ("repeated"). Rav Sheshes then attempts to bring another proof from a Beraisa, and Rav Nachman refutes his proof showing that the Beraisa can be understood in a different way. The Gemara here is saying that just like Rava and Rav Nachman refuted Rav Sheshes' proof from a Beraisa cited later, here, too, they refuted Rav Sheshes' challenge against Rav from the same Beraisos in the same manner.

(The RASHASH in Pesachim (54b) points out that we find a similar usage of this phrase, "As Rav Shisha brei d'Rav Idi said [elsewhere]....")

OPINIONS: Rava explains that the reason a Ganav who sells the animal that he stole must pay Arba'ah v'Chamishah is "because he repeated his sin" ("Mipnei she'Shanah ba'Chet"). In what way did he repeat his sin? His first sin was that he stole the item, and his second sin is that he sold the item. What did he repeat?

(a) RABEINU YEHONASAN, as cited by the Shitah Mekubetzes, explains that not only did he give in to his Yetzer ha'Ra by stealing, but that he is giving in to his Yetzer ha'Ra again by not repenting from his evil deed and by deriving benefit from it.

(b) The ME'IRI writes that he repeated his act of iniquity, like a person who is steeped in evil and is unable to move away from it.

(c) The LECHEM AVIRIM writes that Rava means to say like the Gemara in Kidushin says, "One who repeats his sin, it becomes to him like something permissible" ("Kol she'Shanah ba'Aveirah...").

QUESTION: The Gemara challenges Rav's opinion that Yi'ush is Koneh from a Beraisa which clearly implies that Yi'ush is not Koneh. Rav Zevid answers the Gemara's question on Rav by saying that the Beraisa is discussing is a case in which the owner had Yi'ush after the Ganav sold the item, but not while the item was still in the hand's of the Ganav. Therefore, the Ganav must pay Arba'ah v'Chamishah since the owner had not yet had Yi'ush. Had the owner had Yi'ush while the item was in the hands of the Ganav, the Ganav indeed would be Patur, since, according to Rav, Yi'ush alone is enough for the Ganav to be Koneh the item.

This is difficult in light of Rav Zevid's statement later (115a), where he says that Rav holds that whether the owner had Yi'ush first and then there was a Shinuy Reshus, or whether there was a Shinuy Reshus and then the owner had Yi'ush, the Ganav is Koneh the item. This implies that Yi'ush *alone* does *not* work to be Koneh the item, and that it only works together with a Shinuy Reshus! How, then, can Rav Zevid say here that Rav holds that Yi'ush alone works to be Koneh the item?

The Gemara there (115a) discusses a case in which a Ganav sold the item that he stole, and only afterwards was he discovered to have been the Ganav. Rav in the name of Rebbi Chiya maintains that the original owner may only make a claim against the Ganav, and not against the buyer (even though the buyer could then go and make a claim against the Ganav). Rebbi Yochanan in the name of Rebbi Yanai argues and says that the original owner may make a claim from the buyer, and then the buyer may in turn make a claim from the Ganav.

Rav Zevid there explains the Machlokes as follows. Everyone agrees that if the owner had not had Yi'ush, then the owner could make his claim even against the buyer, since as long as the owner did not have Yi'ush, the item was still considered his and thus he may claim it from whoever took possession of the item. The argument is where the owner had Yi'ush *after* the buyer purchased the item from the Ganav. Rebbi Yochanan in the name of Rebbi Yanai maintains that only when there was first Yi'ush and then Shinuy Reshus does the item change possession, but not -- like in the case there -- where the Shinuy Reshus precedes the Yi'ush. Since the buyer purchased the item before there was both Yi'ush and Shinuy Reshus, it is as if he stole it directly from the owner, and thus the owner may make a claim against him. In contrast, Rav in the name of Rebbi Chiya maintains that Yi'ush and Shinuy Reshus are Koneh regardless of the order in which they occur.

Rav Zevid's explanation of the view of Rav there implies that although the order of Yi'ush and Shinuy Reshus does not matter, it *is* necessary to have *both* Yi'ush and Shinuy Reshus!

ANSWERS:

(a) The PNEI YEHOSHUA answers that in the Gemara later (115a), the reason why Rav Zevid mentions that both Yi'ush and Shinuy Reshus are necessary is because Rav there made his statement in the name of Rebbi Chiya, and Rebbi Chiya indeed holds that both Yi'ush and Shinuy Reshus are necessary. Rav himself, though, argues and holds that Yi'ush alone is Koneh. The Pnei Yehoshua himself, however, points out that this answer is unlikely.

(b) The Pnei Yehoshua suggests a second answer. Indeed, Rav Zevid holds that according to Rav, Yi'ush alone is Koneh. In the Gemara later (115a), the only reason Rebbi Zevid mentions both Yi'ush and Shinuy Reshus is not because they are both necessary in order for the Ganav to be Koneh the item, but rather he mentions them both in order to show the view of Rebbi Yochanan. Rebbi Yochanan argues with Rav and holds that not only is Yi'ush not enough, but also that the Yi'ush must occur before the Shinuy Reshus in order for the Ganav to be Koneh. That is why Rav Zevid there mentions both Yi'ush and Shinuy Reshus in his statement, even though he is explaining the view of Rav; he is emphasizing that Rebbi Yochanan holds both that Yi'ush alone is not enough, and that the Yi'ush and Shinuy Reshus must also be in a specific order. Rav, though, holds that Yi'ush alone is Koneh.

(c) The OR SAME'ACH (Hilchos Geneivah 1:17) writes that Rav *does* require both Yi'ush and Shinuy Reshus in order for the Ganav to be Koneh the item, like Rav Zevid implies later (115a). When Rav Zevid here says that Yi'ush alone suffices, he is speaking according to the view of Rav Papa. Rav Papa (on 115a) argues with Rav Zevid (115a) and explains the Machlokes between Rav and Rebbi Yochanan differently. It is according to Rav Papa's view there that Rev Zevid says here that Rav holds that Yi'ush alone is Koneh. Rav Zevid himself, though, is of the opinion that Rav holds that Yi'ush alone is not Koneh without Shinuy Reshus.

(d) The Pnei Yehoshua gives a third answer, which is also the answer suggested by the CHAZON ISH (16:8). They write that when the Gemara says that Rav holds that Yi'ush alone works, it means that Yi'ush alone works only to be Koneh the actual body of the item. The Ganav is not Koneh the *value* of the item through Yi'ush -- there remains an obligation to *pay* the owner for the item (as if he is buying the item), as TOSFOS says earlier (66a, DH Hachi). This is why Rav Zevid later (115a) requires both Yi'ush and Shinuy Reshus, for there he is explaining, according to Rav, how the Ganav is Koneh the item completely, and is Patur even from paying for the item. The Pnei Yehoshua adds that this seems to be the correct answer.

68b