THOUGHTS ON THE DAILY DAF
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Bava Kama, 69
1) BEING "MAKDISH" AN ITEM WHICH IS NOT YOURS
QUESTION: Rebbi Yochanan rules that an item that was stolen, for which the
original owner did not yet have Yi'ush, cannot be made Hekdesh by either the
thief or the owner. The thief cannot make it Hekdesh because it does not
belong to him, and the owner cannot make it Hekdesh because it is not
presently in his domain.
2) "FEED THE EVILDOER AND LET HIM DIE"
The ruling that the original owner cannot make the item Hekdesh is indeed a
Chidush. Rebbi Yochanan is teaching us that even though the item is still
legally his, he cannot make it Hekdesh because Hekdesh requires that the
item also be physically in his domain. (The Acharonim discuss whether his
inability to make the item Hekdesh when it is not in his domain is because
of the fact that he cannot make use of the item and exercise his full rights
of ownership over the item, and therefore his full ownership of the item is
lacking, or whether it is because the Kinyan of Gezeilah that the thief made
on the item removed the item partially from the ownership of the rightful
However, what is Rebbi Yochanan's Chidush with regard to the thief? It is
obvious that the thief cannot be Makdish the item -- he does not own it! We
certainly would not think that a person can sell an item that does not
belong to him, so why would we think that the thief can be Makdish an item
that is not his?
(a) TOSFOS in Kidushin (52a, DH v'Hu) writes that, indeed, Rebbi Yochanan is
only teaching us a Chidush with regard to the owner's inability to be
Makdish the item, and there is no Chidush with regard to the thief's
inability to be Makdish it. He only adds that the thief cannot be Makdish it
as an aside ("Agav Gerara;" RITVA).
(b) The RITVA in Kidushin writes that even with regard to the thief, there
is a Chidush in teaching us that he cannot be Makdish the item. We know that
if the owner has Yi'ush, then the thief *is* able to be Makdish the item
that he stole, since he is Koneh it through Yi'ush. We might have thought
that even when the thief is Makdish the item when the original owner has not
had Yi'ush, the item should still be Hekdesh out of doubt -- since there is
an opinion (that of Rebbi Shimon) that maintains that "Stam Gezeilah Yi'ush
Ba'alim" -- we assume that the owner had Yi'ush in every case of Gezeilah.
Therefore, Rebbi Yochanan teaches that we are not afraid that the owner had
Yi'ush until there is clear evidence that he had Yi'ush.
(c) RAV ELCHANAN WASSERMAN (Kovetz Shi'urim to Kidushin, #42) answers that
there are two elements involved in making an item Hekdesh. The first element
is the actual Kedushah which the item attains. The second is the monetary
acquisition (Kinyan Mamon) obtained by Hekdesh over the item.
Rav Elchanan suggests that when an item is made Hekdesh with Kedushas
ha'Guf, the monetary acquisition comes as a result of the Kedushah that
takes effect on the item (and not vice versa), while when an item is made
Hekdesh with Kedushas Damim, the Kedushah comes as a result of the monetary
According to this, the Chidush of Rebbi Yochanan's ruling is understood. Had
Rebbi Yochanan not taught that the thief cannot be Makdish the item, we
might have thought that one can make an item Hekdesh with Kedushas ha'Guf
even when the item does not belong to him, because the act of making the
item Hekdesh gives it Kedushah, and then, automatically, as a result of the
Kedushah, the Kinyan Mamon to Hekdesh takes effect. It is not similar to
selling an item, which one cannot do unless he is in possession of the item,
for he has no right to transfer the item to another's ownership. With
Hekdesh, though, *he* is not transferring the ownership; he is giving it
Kedushah, and automatically the ownership is transferred. Therefore, Rebbi
Yochanan must teach that a thief *cannot* be Makdish the item, because
making something Hekdesh requires that the item be in the person's domain
and ownership, as Rebbi Yochanan derives from the verse.
(d) We might also answer based on the words of TOSFOS in Shabbos (58a, DH Af
Al Pi). Tosfos writes that making an item Asur b'Hana'ah is considered a
Shinuy Ma'aseh on the item. Accordingly, the thief *should* be able to be
Makdish the item, since doing so makes the item Asur b'Hana'ah and it should
be a Shinuy Ma'aseh with which he is Koneh the item (the Hekdesh and the
Shinuy coming simultaneously). Indeed, the IMREI YOSHER (II 197:1) asks why
a thief cannot be Makdish the item that he stole for this reason (see there
for the answer that he gives). Because this is a strong reason to say that
the thief *should* be able to be Makdish the item, Rebbi Yochanan must teach
that he nevertheless cannot be Makdish it (since the verse teaches that it
must be completely in his domain in order to be Makdish it). (I. Alshich)
QUESTIONS: Raban Shimon ben Gamliel rules that the requirement to mark one's
fruits of Kerem Reva'i in order for people to know that the fruits need to
be redeemed before being eaten applies only during the Shevi'is year, when
those fruits are Hefker and may be taken by anyone. During any other year,
though, one is not required to mark his Kerem Reva'i fruits, because anyone
who comes to take them without his permission is a thief, and we say "feed
the evildoer [a prohibited food] and let him die."
There are a number of questions on this principle proposed by the Gemara of
"feed the evildoer and let him die."
(a) First, we know that the Torah commands, "Lifnei Iver Lo Siten Michshol"
(Vayikra 19:14), which means that it is prohibited to cause another person
to transgress an Aveirah. Why, then, is there no requirement to mark one's
fruits as Kerem Reva'i in order to prevent another person (the thief) from
transgressing the Aveirah of eating sanctified fruits without redeeming
(b) Second, if the law of "Lifnei Iver" does not apply in this case for some
reason, it should still be prohibited, because in this case one is not
merely "putting a stumbling block" of sin in front of a person, letting him
do an Aveirah, but rather in this case it is as if one is actually feeding
the prohibited item directly to the person! That certainly is not allowed,
even without the prohibition of "Lifnei Iver!"
(c) Finally, we know that there is a principle of "Kol Yisrael Arevin Zeh
la'Zeh" -- every Jew is responsible to help every other Jew do Mitzvos and
refrain from Aveiros. Why, then, do we not say in this case that one must do
whatever he can to prevent another Jew from doing an Aveirah because of the
requirement of "Arvus?"
(a) Perhaps the prohibition of "Lifnei Iver Lo Siten Michshol" applies only
when one actively places the stumbling block of sin in front of the other
person (through "Kum v'Aseh"). In the case of our Gemara, though, the
prohibited item (the fruit of Kerem Reva'i) was there already, and one is
passively letting (through "Shev v'Al Ta'aseh") the other person eat it.
"Lifnei Iver" does not apply in such a situation.
This approach answers the first question. However, this approach seems to be
contradicted by the wording of the Gemara, which says, "*Feed* the evildoer
and let him die," implying that one may actively ("Kum v'Aseh") cause the
evildoer to sin.
(b) The CHAZON ISH (Demai 8:9) writes that when the Gemara says "*feed* the
evildoer," it does not literally mean that one may feed someone a food that
is prohibited. Rather, it means that the owner of the fruit is not required
to make an effort to save the evildoer from transgressing the prohibition of
Kerem Reva'i. Then reason for this is because the person eating the fruit is
willfully taking the fruit, knowingly transgressing the Isur of Gezeilah.
Even though he does not know that he is also transgressing the Isur of Kerem
Reva'i, the fact that he knows that he is transgressing the Isur of Gezeilah
removes from the owner any responsibility for the thief's actions and it is
not considered as though the owner is causing the thief to sin; the thief,
anyway, is not permitted to take the fruit because of the Isur of Gezeilah,
and yet he is still taking the fruit unlawfully. Therefore, the owner is
exempt from responsibility to stop him from eating the fruit of Kerem
Reva'i. Of course, to offer and feed someone such fruit is certainly
This approach of the Chazon Ish also answers the first question. In our
case, the principle of "Lifnei Iver" does not apply because the transgressor
is purposely taking the item himself, knowingly transgressing a different
Isur of Gezeilah. Hence, it is not called placing a stumbling block before
him, and nor is it even considered passively ("Shev v'Al Ta'aseh") placing a
stumbling block before him.
(We see from the words of the Chazon Ish that the Isur of "Lifnei Iver" also
applies when one passively, through "Shev v'Al Ta'aseh," places a stumbling
block of sin before someone else, in contrast to the approach we suggested
to the first question.)
(See also SHACH in Yoreh De'ah 151:6, DAGUL MERAVEVAH and GILYON MAHARSHA
there, cited by YOSEF DA'AS here.)
(c) Regarding why the owner of the Kerem Reva'i fruits is not obligated to
mark his fruits as Asur because of the rule of "Arvus," RAV YERUCHAM FISHEL
PERLOW (in his Hagahos to Sefer ha'Mitzvos of Rav Sa'adyah Ga'on, 3:57, pp.
209-210) answers as follows. The obligation of "Arvus" applies only when it
is within one's ability to effectively protest against the transgressor's
act of sinning (as he proves from Gemaras in Sanhedrin and Shevu'os). Here,
though, the owner's protest will not be effective, because the transgressor
anyway intends to transgress the Isur of Gezeilah. Raban Shimon ben Gamliel
maintains that since there is no obligation of "Arvus" with regard to the
Isur of Gezeilah (since he is going to steal anyway), there is also no
obligation of "Arvus" with regard to the other Isur (i.e. Kerem Reva'i) that
he will be transgressing if he eats this fruit.
3) THE RESOLUTION OF CONTRADICTIONS IN RULINGS OF REBBI YOCHANAN
QUESTION: Rebbi Yochanan (69a) states that an item that was stolen, for
which the original owner did not yet have Yi'ush, cannot be made Hekdesh by
either the thief or the owner. The thief cannot make it Hekdesh because it
does not belong to him, and the owner cannot make it Hekdesh because it is
not presently in his domain. The Gemara asks that Rebbi Yochanan seems to
contradict himself, because Rebbi Yochanan also states that whenever a
ruling is stated anonymously in a Mishnah, the Halachah follows that
opinion, and we find a Mishnah (Ma'aser Sheni 5:1) that implies that the
owner of an item *is* able to effect a change in the status of the item even
though the item is not in his domain!
The Gemara here (69b) answers that Rebbi Yochanan found another anonymous
Mishnah (Bava Kama 62b) and ruled in accordance with it, and that he ruled
like that Mishnah over the other anonymous Mishnah (in Ma'aser Sheni)
because a verse supports the ruling of this other anonymous Mishnah.
TOSFOS (DH Ela) cites RABEINU TUVYAH who asks that Rebbi Yochanan still
seems to contradict himself. Rebbi Yochanan rules that Bereirah does not
work ("Ein Bereirah") while he also rules like the anonymous Mishnah, and
the anonymous Mishnah (in Demai 7:4) rules that Bereirah *does* work! Even
though there is another anonymous Mishnah (that of "Tzenu'in" in Ma'aser
Sheni 5:1) which does not hold that Bereirah works, for what reason would
Rebbi Yochanan rule like that anonymous Mishnah over the Mishnah in Demai?
(a) TOSFOS answers that perhaps when Rebbi Yochanan states that Bereirah
does not work, he means that it does not work only where one did not make an
explicit condition that it should work (stating that the present status
should be determined by a future event). The case of the Mishnah in Demai
involves a person who *did* make an explicit condition (stating that Terumah
will take effect now on the two Lugin of wine that he will, in the future,
separate from the rest of the wine).
This answer is problematic, as TOSFOS in Gitin (25b) asks, and as the
MAHARSHA and MAHARAM here ask: If it is true that Rebbi Yochanan agrees that
Bereirah works in a case where the person made an explicit condition, then
what is our Gemara's question when it asks a contradiction from Rebbi
Yochanan's statement regarding "Achin she'Chalku" (where he said that
brothers who inherit property are considered like buyers, and each one must
return his property to the other at the Yovel year, since Bereirah does not
work to determine that the property that each brother received was the
property that was truly intended for him), to Rebbi Yochanan's statement
regarding "Kol ha'Mislaket" which implies that he holds that Bereirah does
work? In the case of "Kol ha'Mislaket," the person made an explicit
condition, and that is why Rebbi Yochanan says that Bereirah works there!
Tosfos in Gitin gives two answers to this question.
First, Tosfos says that indeed the Gemara could have given this as an answer
to its question here, and differentiated between a case of Bereirah where
one made an explicit condition, and a case of Bereirah where one made no
condition. The Gemara, however, preferred to answer that Rebbi Yochanan
reads the Mishnah in Ma'aser Sheni as "Kol ha'Nilkat" and not "Kol
ha'Mislaket," and that he found another anonymous Mishnah which he ruled
like. The Gemara prefers this answer because with this answer we do not have
to change the Girsa of the Mishnah (from "Nilkat" to "Mislaket"), and nor do
we have to switch the opinions of the Tana'im.
Second, Tosfos answers that if the Gemara would have answered that Rebbi
Yochanan holds that Bereirah works when the person makes an explicit
condition, the Gemara still would have had a question from another ruling of
Rebbi Yochanan in Gitin (25a), where Rebbi Yochanan rules that when a man
writes a Get but stipulates that he will decide later to which wife he wants
to give it, the Get is entirely invalid because Bereirah does not work. This
answer would not have sufficed to answer that question, because in that case
Rebbi Yochanan rules that Bereirah does not work even though the person made
an explicit condition.
(b) The BEIS EFRAIM (EH 3:122, p. 83) answers that Rebbi Yochanan ruled like
the anonymous Mishnah (that of "Tzenu'in" in Ma'aser Sheni 5:1) that holds
that Bereirah does not work, and not like the anonymous Mishnah (in Demai
7:4) that holds that Bereirah *does* work, because the Mishnah in Demai is
clearly a minority opinion (the opinion of Rebbi Meir). The Mishnah in
Ma'aser Sheni, on the other hand, is the opinion of Rebbi, Rebbi Yosi, and
Rebbi Shimon. Rebbi Yochanan chose to rule like an anonymous Mishnah which
follows the opinion of the majority, instead of ruling like an anonymous
Mishnah which follows the opinion of a minority opinion.
(c) The BEIS EFRAIM suggests another answer, which is also the answer given
by the ARUCH LA'NER in Sukah (23b). They write that the Gemara in Beitzah
explains that according to the opinion that holds "Ein Bereirah," that
applies only with regard to matters that are mid'Oraisa. For matters that
are mid'Rabanan, Bereirah *does* work. Therefore, we cannot ask a question
on Rebbi Yochanan from the anonymous Mishnah in Demai, because that case is
discussing Terumah *d'Rabanan*, according to RABEINU TAM (cited by Tosfos in
Bava Metzia 88a, DH Tevu'as), who holds that one who buys produce after it
has been processed with Miru'ach (smoothing the pile) is obligated to
separate Terumos u'Ma'aseros only mid'Rabanan. Therefore, Rebbi Yochanan can
agree with that Mishnah that Bereirah works, since it is only applying
Bereirah to a Halachah d'Rabanan.
(The Aruch la'Ner concludes by writing that "after I wrote this answer, I
found that the PNEI YEHOSHUA in Gitin also writes that according to the
opinion of Rabeinu Tam, the question of Tosfos is answered, and I rejoiced
in having answered like he answers.")