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1) ACQUISITION THROUGH DESPAIR

(a) (Mishnah): A thief that steals from a thief does not pay double...
(b) (Rav): This is only before despair (of the owner) - after despair, the first thief acquires it, the second thief pays double to the first.
(c) Question (Rav Sheshes - Beraisa - R. Akiva): The Torah said that one who slaughters or sells pays 4 and 5, because he entrenched himself in sin.

1. Question: When did he slaughter or sell?

i. If before despair - (by selling), he did not go deeper in sin (the sale does nothing)!

2. Answer: Rather, after despair.
3. (Summation of question): If despair acquires - why does he pay 4 and 5, he slaughters or sells his own animal!

(d) Answer: As Rabah explained (elsewhere) - because he repeated (intent) to sin.
(e) (Beraisa): "He will slaughter or sell it" - just as slaughter is irreversible, also the sale.

1. Question: When is this?

i. Suggestion: If before despair - why is the sale irreversible?

2. Answer: Rather, it was after despair.
3. (Summation of question): If despair acquires - why does he pay 4 and 5, he slaughters or sells his own animal!

(f) Answer: The Beraisa said that the sale is irreversible as Rav Nachman explained (elsewhere), to exclude a case when he only sold it for 30 days. (But one is liable before despair, even though the sale is invalid.)
(g) Question (Beraisa): Reuven stole an animal; Shimon stole it from him - Reuven pays the (extra payment of) double payment, Shimon only pays principle.

1. Reuven stole an animal and sold it, then Shimon stole it - Reuven pays 4 and 5, Shimon pays double.
2. Reuven stole an animal and slaughtered it, then Shimon stole it - Reuven pays 4 and 5, Shimon only pays principle.
3. Question #1: In the middle case (Reuven stole and sold, then Shimon stole) - when did Reuven sell?

i. Suggestion: If before despair - why does Shimon pay double, all agree that one who buys from Reuven does not acquire by a mere change of domain, without despair!

4. Answer: Rather, after despair.
5. (Summation of question): If despair acquires - why does he pay 4 and 5, he slaughters or sells his own animal!
6. Question #2: In the first case (Reuven stole and sold, then Shimon stole, and we established that the Beraisa is after despair) if a thief acquires through despair - why doesn't Shimon pay double?

(h) Answer #1 (Rava): There is a mistake in the Beraisa!

1. The last case says, Reuven stole an animal and slaughtered it, then Shimon stole it - Reuven pays 4 and 5, Shimon only pays principle;
2. All agree that one acquires through a change, Shimon should pay double!
3. (Rava): Rather, the Beraisa is before despair; the laws of the last 2 cases must be switched; they say as follows:
4. Reuven stole an animal and sold it, then Shimon stole it - Reuven pays 4 and 5, Shimon only pays principle, because a change in domain without despair does not acquire;
5. Reuven stole an animal and slaughtered it, then Shimon stole it - Reuven pays 4 and 5, Shimon pays double, because he acquired through change.

(i) Answer #2 (Rav Papa): There is no need to switch the cases; the end of the Beraisa is as Beis Shamai, who say that one does not acquire through a change.
(j) Question: If so, the first 2 clauses contradict Rav!
(k) Answer #3 (Rav Zvid): The entire Beraisa is before despair; the case is, the owner despaired when the buyer had it.

1. The reason is not because despair only acquires with a change of domain - really, despair acquires by itself;

i. The Beraisa spoke of when he despaired by the buyer, in order that the first thief should pay 4 and 5, and the latter double.

(a) (Rav Nachman): If the thief sells before despair, he is liable (4 and 5);
(b) (Rav Sheshes): He is exempt (and only pays double).

1. Rav Nachman learns from "And will sell it" - whether before or after despair;
2. Rav Sheshes says, he is only liable when the sale is valid, i.e. after despair;

i. This is as the liability for slaughter, where his action accomplished something.

(c) Support (Rav Sheshes for himself - Beraisa - R. Akiva): The Torah said that one who slaughters or sells pays 4 and 5, because he entrenched himself in sin.

1. Question: When did he slaughter or sell?

i. If before despair - (by selling), he did not go deeper in sin (the sale does nothing)!

2. Answer: Rather, after despair.

(d) Answer: (Rava): He repeated his intent to sin.
(e) (Beraisa): "He will slaughter or sell it" - just as slaughter is irreversible, also the sale.

1. Question: When is this?

i. Suggestion: If before despair - why is the sale irreversible?

2. Answer: Rather, it was after despair - this shows, one is liable only after despair!

(f) Answer (Rav Nachman): The Beraisa said that the sale is irreversible to exclude a case when he only sold it for 30 days. (But one is liable before despair, even though the sale is invalid.)
(g) R. Elazar also says, if he sells before despair he is exempt.

1. (R. Elazar): We can prove that people are assumed to despair when something is covertly stolen, from the obligation to pay 4 and 5.

i. If we may not assume that he despaired - why is he liable for selling?!

2. Question: Perhaps he is liable even if there was no despair!
3. Rejection: It must be as slaughter, which accomplishes something, and this is only after despair.
4. Question: Perhaps he only pays 4 and 5 when we heard that the owner despaired - but normally, we do not assume there was despair!
5. Rejection: It is as slaughter, for which he is liable immediately (even before we hear that he despaired).

(h) (R. Yochanan): We can learn from kidnapping, one is liable without despair!
(i) Inference: R. Yochanan holds, one is liable (4 and 5) before despair.

(a) Question: Is one also liable after despair?
(b) Answer #1 (R. Yochanan): Yes.
(c) Answer #2 (Reish Lakish): No - the thief acquires it, he slaughters or sells his own animal.
(d) Question (R. Yochanan - Mishnah): If he stole and animal and made it Hekdesh and then slaughtered it, he pays double, not 4 and 5.

1. Question: When is this?

i. Suggestion: If before despair - it does not become Hekdesh!
ii. "A man that will make his house Hekdesh" - he can only make his things Hekdesh!

2. Answer: Rather, it is after despair - and he is exempt only because he made it Hekdesh, and he slaughters a Hekdesh animal;

i. Had he not made it Hekdesh, he would be liable - we do not say, he slaughters or sells his own animal!

(e) Answer (Reish Lakish): The case is, the owner made it Hekdesh in the thief's house.

1. Objection: It would not become Hekdesh!

i. (R. Yochanan): Something was stolen, the owner did not despair - neither the thief nor owner can make it Hekdesh;
ii. The thief cannot, for it is not his; the owner cannot, for it is not in his domain!

2. Answer: Reish Lakish holds as Tzenu'im (the pious ones).

i. (Mishnah): The Tzenu'im would take coins and say 'Whatever (fourth-year produce) was gathered from my field is redeemed on these coins.' (Even though it is not in their domain, they can redeem it - also, one can make Hekdesh something not in his domain!)

(f) Question: If the owner made it Hekdesh, he got his animal back - why does the thief pay double?
(g) Answer: The case is, this was after the trial.
(h) Question: What is the case?

1. If the judges told him 'go give him' - even if he didn't make it Hekdesh, he would be exempt!

i. (Rava): If the judges told him 'go give him' and he slaughtered or sold, he is exempt.
ii. Question: Why is this?
iii. Answer: Once the case was settled, he is as an open robber, who does not pay 4 and 5.
iv. (Rava): If the judges told him 'you are obligated to give him' and he slaughtered or sold, he is liable.
v. Question: Why is this?

(i) Answer: The case is, the judges told him 'go give him'.