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Bava Kama, 77

BAVA KAMA 77 - Dedicated by Dr. and Mrs. Moshe & Rivka Snow of Queens, N.Y., in memory of Rabbis Israel Snow and Baruch Mayer Rabinowitz -- both of whose Yahrzeits are 8 Elul.


QUESTION: The Gemara (76a) explains that Rebbi Shimon holds that when a Ganav steals a sanctified animal (Kodshim) and then slaughters it, he is obligated to pay Arba'ah v'Chamishah. The Gemara there asks why, according to Rebbi Shimon, should the Ganav be Chayav? The Shechitah of that animal which is Hekdesh did not make it fit to eat (since a person may not eat Hekdesh), and Rebbi Shimon holds that a Shechitah that does not make the animal fit to eat is not considered a Shechitah!

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 Azarah.

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 v'Chamishah.

(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.

QUESTION: The Gemara quotes a Beraisa which cites a verse as the source that an animal that is a crossbreed is excluded from being brought as a Korban.

The Acharonim ask that we find that the reason why an Esrog which is a "Murkav" (grafted between two species) is not a valid Esrog is because an Aveirah was done (i.e. the Aveirah of grafting fruit) in its creation (LEVUSH OC 649:4). If that is enough of a reason to disqualify an item from being used for the Mitzvah, then why do we need a verse to teach that an animal of Kil'ayim is invalid? It should be invalid simply because it came about through an Aveirah!


(a) The BIKUREI YAKOV (649:19) writes that the Levush means that if it were not for the verse that teaches that an animal of Kil'ayim may not be used, then we would not have known that an animal with which an Aveirah was done is invalid to be brought as a Korban. Thus, it is from that verse itself that the Levush learned that an item with which an Aveirah was done may not be used for a Mitzvah.

(b) The CHASAM SOFER (Sukah 31b, DH uva'Zeh) answers as follows. The prohibition against using an animal of Kil'ayim as a Korban is not because an Aveirah was done with it. The Aveirah was the person's transgression of the Isur of Revi'ah (crossbreeding animals). If the animal was born as a "natural" crossbreed (i.e. its parents, of different species, mated without any human intervention), then no Aveirah was done with it. That is why a verse is necessary to teach that an animal of Kil'ayim may not be brought as a Korban -- for we would not have known that it would be prohibited had a person *not* crossbred the animal.

In contrast, regarding a grafted Esrog, there is an Isur on the Kil'ayim itself, for one who keeps fruit of Kil'ayim is punishable with Malkus. Therefore, it is the Aveirah of the Kil'ayim which prevents it from being used for the Mitzvah.

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