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Bava Kama, 67

BAVA KAMA 67 - Dedicated by Mr. and Mrs. D. Kornfeld (Yerushalayim) in honor of the Bat Mitzvah of their granddaughter, Malkie, this past Yom Kipur. "May you Hashem bless you as Sarah, Rivkah, Rachel and Le'ah!"


QUESTION: The Gemara continues its discussion about whether a thief is Koneh the item that he stole through the Yi'ush of the original owner. The Gemara attempts to prove that he *is* Koneh through Yi'ush from a Tosefta in Terumos. The Tosefta says that if a thief was Makdish the item that he stole, or if he separated Terumah from it, the Hekdesh or Terumah takes effect. Since Hekdesh or Terumah can take effect only if the thief was Koneh the item, it seems from there that he is Koneh through Yi'ush.

The Gemara refutes the proof and says that in that case, there is both Yi'ush and Shinuy ha'Shem, since the change from Chulin to Hekdesh, or from Tevel to Terumah, is considered a Shinuy, and therefore the thief is Koneh the item. Yi'ush alone, though, might not be enough to be Koneh the item.

The Gemara's answer is difficult to understand. We know that in a pile of fruit, there are two parts -- the part that is Terumah, and the rest of the pile that is Chulin. The part that is Terumah indeed had a Shinuy ha'Shem when it was separated and turned from Tevel into Terumah, but the part that is Chulin did not, apparently, have any Shinuy ha'Shem! It merely changed from being Asur (Tevel) to being Mutar (Chulin), but it had no Shinuy ha'Shem. Thus, the thief was not Koneh the rest of the pile; he was Koneh only the Terumah. But if that is the case, then how is his separation of Terumah a valid Terumah? He is separating Terumah from his own fruits (that he was Koneh through Yi'ush and Shinuy ha'Shem, if we apply the principle of "Ba'in k'Achas") on behalf of someone else's fruits (the Chulin, which had no Shinuy ha'Shem and which he was not Koneh)!


(a) The OR SAME'ACH (Hilchos Gezeilah 5:4) answers simply that the Halachah is that one who separates Terumah from his own fruits on behalf of someone else's fruits does not need the consent of the other owner.

There are several questions on his answer, though. First, the reason why one is able to separate Terumah from his own fruits on behalf of someone else's is because of the principle, "Zachin l'Adam she'Lo b'Fanav." Here, however, the concept of "Zechiyah" is not applicable, because the owner would have preferred that the thief *not* take Terumah, because if the Terumah would not take effect, then the thief would not be Koneh it. If the thief would be Koneh the Terumah, it would be a "Chav" (a detriment or loss) to the owner, and thus his separating of Terumah should not take effect! (See CHASON ISH, Bava Kama 17:17; ACHI'EZER 3:55:3; RAV SHLOMO ZALMAN AUERBACH zt'l in MA'ADANEI ERETZ, Terumos 4:11:2.)

Second, many Rishonim maintain that "Zechiyah" works through Shelichus, such that, in our case, either we assume that the original owner would have made the thief a Shali'ach to separate Terumah for him, or that the Torah makes him a Shali'ach. However, Shelichus works only when the owner is able to do the act that he is appointing his Shali'ach to do. Here, the owner is unable to separate Terumah because the fruits are not in his domain, and thus the thief should also not be able to separate Terumah. (The Or Same'ach himself asks this question, as does the Achi'ezer 2:37:3.)

Third, the KETZOS HA'CHOSHEN (#243 and elsewhere) teaches that "Zechiyah" works only to be Zocheh an item *to* a person (i.e. to put an item into his possession), but not to be Zocheh an item *from* a person (i.e. to remove an item from his possession). Here, the principle of "Zechiyah" cannot work to enable the thief to take Terumah from his fruits for the fruits of someone else, since he is not giving anything to the owner of the fruits. He is merely attempting to use his own property to enable the owner to do a Mitzvah, and for this, "Zechiyah" does not work.

These three questions on the answer of the Or Same'ach can be answered based on what RABEINU CHAIM HA'LEVI SOLOVEITCHIK, the Brisker Rav, writes (in Chidushei ha'Grach, "stencil" version, #244). Although in all other cases where one person separates Terumah from his own fruits on behalf of someone else's fruits, the Terumah takes effect through the mechanism of "Zachin l'Adam she'Lo b'Fanav," in the case of our Gemara it works differently. Normally, the only reason "Zechiyah" is necessary is because one must separate Terumah from the pile of fruits that are Tevel, for which the Terumah is being separated, and not from someone else's pile of fruits on behalf of this pile (as derived from the verse, "Es Mikdasho Mimenu" Bamidbar 18:29). However, to separate Terumah from one person's pile for him is not a Zechus, but a Chov, and therefore one is only able to separate from his own pile on behalf of his friend's pile, for then the principle of "Zachin l'Adam" makes it as if the fruits of Terumah belong to his friend, and the Halachah of "Es Mikdasho Mimenu" (Bamidbar 18:29) is fulfilled.

In our case, though, the thief is able to separate Terumah from this pile itself (that he stole), since he is Koneh the Terumah through Yi'ush and Shinuy ha'Shem, and thus the requirement of "Es Mikdasho Mimenu" is fulfilled, and even without the principle of "Zachin l'Adam," the Terumah takes effect.

(b) RAV SHIMON SHKOP (Chidushim 35:1) proves from this Gemara that the change from "Tevel" to "Chulin" is also considered a Shinuy ha'Shem. Consequently, the thief is certainly able to make the Terumah take effect, because he is also Koneh the Chulin part of the fruits.

The ACHI'EZER rejects this answer and infers from the wording of the Gemara, "Originally it was Tevel, and now it is *Terumah*," that only the change from Tevel to *Terumah* is considered a Shinuy ha'Shem, and not the change from Tevel to Chulin.

(c) The ACHI'EZER instead suggests that the Tosefta is discussing a case in which the thief separated Terumah from the fruits of the original owner, on behalf of the thief's own fruits (and not on behalf of the owner's fruits). The Terumah takes effect because he is Koneh those fruits with Shinuy ha'Shem. (See also ONEG YOM TOV 108.)

The GEDULEI SHMUEL writes that the Or Same'ach did not accept this answer because the Tosefta says that the Terumah of the thief is valid, without specifying that it is valid only when he separates Terumah from the original owner's fruits on behalf of his own fruits.


OPINIONS: Rebbi Akiva in a Beraisa says that the reason why a thief who slaughtered (Tavach) or sold (Machar) the animal that he stole must pay back Arba'ah v'Chamishah is "Mipnei she'Nishtaresh ba'Chet" -- "because he became rooted in sin." What exactly does this mean?
(a) RASHI here writes that it means that the thief "made roots, meaning that he strengthened his sin by acquiring it and benefiting from his deeds." Rashi means that until the slaughter or sell of the animal, the thief was not Koneh the animal entirely, but rather was still considered to be owned by its original owner (the thief only has a "Kinyan Gezeilah" which remains the animal from the "domain" (Reshus) of the owner, but not from the "ownership" (Mamon) of the owner). When the thief slaughters or sells the animal, he then is Koneh it entirely, removing -- through is deed -- the animal entirely from the ownership of the owner. "He strengthened his sin" refers to the sin that he did initially, by stealing the animal.

(b) The DIVREI YECHEZKEL (57:3) writes that "she'Nishtaresh ba'Chet" means that the thief damaged the animal through the act of Tevichah. According to his explanation, "Nishtaresh ba'Chet" refers to the additional Chet of damaging the animal, and it means that he became rooted in additional sin (of Tevichah).

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