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Bava Basra 44

BAVA BASRA 44-55 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.

(a) YE'USH - Ye'ush means that the owner gives up hope of ever getting back his object from the thief, and verbally acknowledges that the loss is irretrievable ("Vai Li l'Chisaron Kis")

(b) SHINUY - A thief becomes liable for a stolen item (such that if it is destroyed, he must reimburse the owner) when he makes a Ma'aseh Kinyan on the item (a formal Halachically-binding act denoting a change in ownership -- see Background to Bava Metzia 7:11). Similarly, when he makes a Ma'aseh Kinyan on the item, he acquires it to the extent that if the owner gives up hope of ever getting it back, and the object becomes "changed" (Shinuy) from its original state, he need not return the object itself, but rather its value.

(c) The Amora'im argue (Bava Kama 66a) with regard to the methods with which a thief acquires a stolen object such that he may return its value (and he need not return the object itself).

1. YE'USH (Giving up hope) - There is an opinion that "Ye'ush" alone is enough to grant the thief ownership of the stolen object. Ye'ush means that the owner gives up hope of ever getting back his object from the thief, and verbally acknowledges that the loss is irretrievable ("Vai Li l'Chisaron Kis").
2. SHINUY MA'ASEH (A "change" in the use of the object) - There are opinions that Ye'ush alone is *not* enough for the thief to acquire the object, unless the thief effects a "change" (Shinuy) in the object. This applies even to a small Shinuy that does not entirely transform the object, such as affixing the object with clay in a certain place. However, the Shinuy must be irreversible, i.e. it is not "Chozer li'Veriyaso."
3. SHINUY HA'SHEM (A "change" in the object's title or description) - Similarly, according to the latter opinions, Ye'ush grants the thief ownership of the stolen object together with a Shinuy ha'Shem. Shinuy ha'Shem means that the classification of the item has changed and it is henceforth called by a different name, such as when pieces of wood that were stolen and used to cover the roof of a Sukah become called "Sechach."
4. SHINUY RESHUS (A "change" in ownership) - These Amora'im also rule that Ye'ush works together with a Shinuy Reshus. When a thief sells or gives the object to another person after Ye'ush, that person acquires full ownership of the object, and is not required to return it to the previous owner.
5. SHINUY (Transformation of the object) - If a significant change is effected in the object such that it no longer serves its original purpose, the thief acquires the object to the extent that he may keep it and return its value even *before* Ye'ush. This is learned from the verse, "v'Heishiv Es ha'Gezeilah Asher Gazal." Only when the object is "Asher Gazal," - "as he stole [it]," is the thief required to return the object itself (Bava Kama 66a).
2) [line 8] RESHUS YORESH LAV KI'RSHUS LOKE'ACH DAMI - when an heir takes possession of an inheritance, it is as if the item were sold to an independent party

3) [last line] LO MIBAYA BI'SETAMA, D'LO MISHTA'ABDA LEI - not only in the general case (where he did not specify a particular cow or cloak) is there no question [that the seller may be a witness for the buyer], since the cow or cloak is not Meshu'abad (i.e. it is not able to be seized as repayment of a loan) to the creditor of the seller


4) [line 3] D'KASAV LEI MI'GELIMA D'AL KASFEI - where he wrote [that he will repay the loan] even with the shirt upon his shoulder

5) [line 4] ISNAHU B'EINAIHU - where they are still in his possession (lit. where they still exist in their present form)

6) [line 6] APOTIKI
A person may designate one of his pieces of land or possessions as security for a loan that he received or a debt that he owes without placing it in the possession of the creditor. This creates a Shi'abud, or lien, on the object, such that if the debt is not otherwise repaid, the creditor can collect his debt from the security. Such a security is called an "Apotiki." The debtor may specify (if the creditor agrees) that the creditor may *only* collect his debt from the Apotiki. In such a case, if it becomes impossible to collect the debt from the Apotiki, the debtor is no longer liable to the creditor.

(a) According to Torah law, certain modes of transferring ownership (Kinyanim) are effective only for land (Mekarka'in), while others are effective only for mobile objects in general (Metaltelin) or for specific mobile objects such as slaves. Kinyan Agav is effective for the transfer of mobile objects in general.
(b) A Kinyan "Agav Karka" is a "package deal" wherein when land is transferred through one of the modes of transferring land (Kesef, paying money; Shtar, handing over a contract; or Chazakah, enhancing the land with the intention of buying it), the recipient of the land automatically transfers mobile objects that the [former] owner of the land is selling as well. For example, if a person is interested in selling a parcel of land and also a cow, when the buyer pays for the land, thereby acquiring it through Kinyan Kesef, he immediately acquires the cow as well. This Kinyan is learned from the verse in Divrei ha'Yamim II 21:3.
(c) The Gemara concludes that in order to acquire an object through Kinyan Agav, the seller must specify that he wants the buyer to acquire the object along with the land (Kidushin 27a). For Kinyan Agav to take effect, the Gemara concludes (ibid.) that it is not necessary for the Metaltelin to be lying in the land that is transferring them ("Tzevurin"). Our Gemara adds a nuance that a Shi'abud, or lien, on one's possessions can also be effected by a Kinyan Agav, and that as a result of the Kinyan Agav, the Metaltelin are captured by the Shi'abud, as well.

8a) [line 14] D'LO K'ASMACHTA - he writes in the Star that it is not like an Asmachta (ASMACHTA)
(a) Asmachta refers to "reliance" upon a particular eventuality or a conditional [monetary] obligation which the party or parties involved undertake without full commitment. The reason that the party involved does not commit himself fully is because his obligation is contingent upon the fulfillment of a condition that he anticipates will not be fulfilled. (An example of this is when gamblers place wagers, where neither of them expects to lose the wager.)
(b) The Tana'im (Bava Basra 168a) argue as to whether such a commitment is binding or not.
(c) Since our Gemara is dealing with a Shi'abud for the repayment of a loan, it is similar to an Asmachta. Even though the debtor stipulates that the creditor can collect his possessions if he does not repay the loan, he would rather repay the loan and *not* have the creditor collect his possessions.

b) [line 14] UD'LO K'TOFSA DI'SHETAREI - and that is it not like document forms, which are written solely for the benefit of a scribe, to copy the standard text of a particular document

9) [line 16] V'LEICHUSH DILMA "D'IKNI" HU - But why do we not suspect that this was a case of "d'Ikni," i.e. that the debtor wrote in the loan document that he will pay the creditor even with the items *that he will buy in the future*?

10) [line 16] SHAM'AS MINAH: "D'IKNI"; KANAH U'MACHAR, KANAH V'HORISH, LO MISHTA'ABED - from this we may conclude that if someone says that he will pay his creditor even with the items *that he will buy in the future* and he buys items and sells them, or he buys items, dies and bequeaths them to his heirs, they do *not* become Meshu'abad to his creditor, i.e. his stipulation does not work because "d'Ikni" is not Mesha'abed the possessions

11) [line 22] TARFAH - and he took it away from the buyer

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