Rebbi Yochanan answers that the case is one in which the Ganav slaughtered
the animal of Kodshim while it was unblemished, and *inside* the Azarah,
with intention that the Korban be slaughtered for the sake of the one who
sanctified it. Reish Lakish answers that the case is one in which the Ganav
slaughtered the sanctified animal *after* it became blemished, *outside* the
The Gemara here asks why Reish Lakish does not give the same answer as Rebbi
Yochanan. The Gemara answers that Reish Lakish derives from the verse
(Shemos 21:37) that the Ganav is Chayav for slaughtering the animal that he
stole only when he would also have been Chayav had he *sold* the animal.
Since Kodshim cannot be sold (as Rashi here writes, its status of Hekdesh
cannot be removed through being sold), the Ganav is not Chayav when he
slaughters the animal.
However, the Gemara earlier (71a) quotes a Beraisa which states that one who
steals and slaughters a Shor ha'Niskal is Chayav to pay Arba'ah v'Chamishah.
Why should he be Chayav? A Shor ha'Niskal cannot be sold, since it is Asur
b'Hana'ah, and thus a Ganav should not be Chayav for slaughtering it,
according to Reish Lakish! (TOSFOS in Kesuvos 33b, DH Ganav)
(a) TOSFOS in Kesuvos answers that a Shor ha'Niskal differs from an animal
of Kodshim. Kodshim cannot be sold at all, under any circumstances. In
contrast, a Shor ha'Niskal can be sold to a Nochri, and since the Isur
Hana'ah does not become transferred to the money, the sale takes effect.
The Acharonim question this answer of Tosfos from the Gemara earlier (45a)
which clearly teaches that a Shor ha'Niskal cannot be sold at all. The
KOVETZ SHI'URIM (Kesuvos #117) answers that the Gemara is referring only to
the sale of a Shor ha'Niskal to another Jew when it says that the sale does
not take effect.
What, though, is the difference between selling the Shor ha'Niskal to a Jew
and selling it to a Nochri? The reason why an item that is Asur b'Hana'ah
may not be sold is because it is not considered the owner's item to sell.
Hence, just like the owner cannot sell it to a Jew, he should not be able to
sell it to a Nochri!
The Kovetz Shi'urim explains that Tosfos maintains that the reason why an
item that is Asur b'Hana'ah may not be sold is not because the *seller* is
unable to sell the item. Rather, it is because the *buyer* is unable to
receive the item. Indeed, the seller is technically able to sell the item
(since Tosfos holds like those Rishonim who maintain that one *can* have
possession of an item that is Asur b'Hana'ah). The buyer, though, is
prohibited from buying the item, because it is Asur to benefit from it. A
Nochri, on the other hand, is not prohibited from buying such an item, and
therefore the sale is effective.
(b) TOSFOS in Kesuvos suggests a second answer, based on the opinion of
RABEINU TAM. Rabeinu Tam holds that, actually, a Shor ha'Niskal is not Asur
b'Hana'ah while it is still alive. Only after its death does it become Asur
b'Hana'ah. Hence, it certainly can be sold while it is still alive, and
therefore if the Ganav slaughters it he will be Chayav to pay Arba'ah
(c) The KOVETZ SHI'URIM challenges the question to begin with. We learned
earlier (68b) that Reish Lakish himself holds that the Chiyuv of Arba'ah
v'Chamishah for *selling* a stolen animal applies only when the Ganav sells
the animal *before* the owner has Yi'ush. Accordingly, Reish Lakish holds
that it is not necessary for the Ganav's act (of selling the stolen animal)
to be effective in order for him to be Chayav Arba'ah v'Chamishah, since if
he sells it before Yi'ush the sale certainly does not take effect; he just
needs to do the *act* of selling in order to be Chayav.
What, then, asks the Kovetz Shi'urim, is the question of Tosfos? In our
Sugya, it is Reish Lakish who says that in order for the Ganav to be Chayav
for slaughtering the animal, it must be possible for him to be Chayav for
selling the animal. Reish Lakish himself holds that the sell of the animal
does not need to take effect in order for the Ganav to be Chayav. Hence, if
the Ganav steals and sells a Shor ha'Niskal, even though the sell does not
take effect, he will still be Chayav (like the Beraisa says), because he did
an act of selling with an act of Kinyan, and it is no different than an act
of selling the animal before the owner has Yi'ush!
The Kovetz Shi'urim explains, in defense of Tosfos, that Tosfos holds that
there is a difference between selling an animal before Yi'ush, and selling
an animal that is a Shor ha'Niskal. When the Ganav sells the animal before
Yi'ush, the reason he is Chayav even without his act being effective is
because the animal itself *could* be sold, if it were not for the fact that
the seller stole it. If it was not a stolen animal, the sale would take
effect. This is the Chidush of the Torah when it obligates a Ganav to pay
Arba'ah v'Chamishah for selling a stolen animal; the Ganav is Chayav when
the only factor preventing the sale from taking effect is the fact that the
animal is stolen. In contrast, the sale of a Shor ha'Niskal is ineffective
not merely because the animal was stolen, but because the animal is a Shor
ha'Niskal. Even if it had not been stolen, the sale of the Shor ha'Niskal
would not have been effective.