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Bava Kama, 79
1) A THIEF WHO SOLD THE STOLEN ITEM ON CREDIT
QUESTION: The Gemara says that a Ganav who stole an item and then sold it on
credit (without receiving money for it) is still obligated to pay Arba'ah
2) A THIEF WHO STEALS AN ITEM AND THEN MAKES IT "HEFKER," OR SELLS IT BACK
TO THE ORIGINAL OWNER
How, though, did the Ganav effect a Kinyan, if he did not receive any money
in exchange for the item that he sold? It must be that the buyer was Koneh
the item through Meshichah. However, Meshichah is only a Kinyan *d'Rabanan*.
How, then, can such a Kinyan obligate the Ganav to pay Arba'ah v'Chamishah
*mid'Oraisa*, if the sale was valid only mid'Rabanan?
ANSWER: This Gemara is proof to the principle discussed by the Acharonim
(see CHAZON ISH 17:16, PRI YITZCHAK, and others) that a Kinyan d'Rabanan
suffices for a Halachah d'Oraisa; when the Rabanan institute that a certain
act should accomplish a Kinyan, then that act certainly is on par with any
Kinyan d'Oraisa and can be Makneh the object to the recipient.
The D'VAR AVRAHAM (1:1:15-16) explains the reason for this as follows. The
Gemara in Bava Metzia (74a) says that any act that becomes generally
accepted to be an act that finalizes a sale ("Situmta") accomplishes a
Kinyan *d'Oraisa*. A Kinyan that the Rabanan instituted is no less than the
Kinyan of "Situmta." (See Insights to Gitin 36b.)
OPINIONS: The Gemara quotes a Beraisa which teaches that a Ganav is Chayav
to pay Arba'ah v'Chamishah not only when he sells the item in the normal
manner of a sale, but even when he transfers it to another's ownership in
other ways, such as by making it Hekdesh, selling it on credit, bartering
it, giving it to someone as a gift, etc.
The Acharonim discuss other situations in which the Ganav transfers the
stolen animal to a different domain in a manner other than that of a normal
1. What is the Halachah where the Ganav steals an item and then makes it
(a) The TO'AFOS RE'EM on the Sefer ha'Yere'im (Mitzvah 124:10) writes that
the Ganav is *exempt* from Arba'ah v'Chamishah in such a case, since making
the item Hefker does not qualify as a sale.
2. What is the Halachah where the Ganav steals an item and then sells it to
the original owner (from whom he stole it in the first place)?
(b) The MISHKENOS YISRAEL (#21) rules that a Ganav is *Chayav* to pay
Arba'ah v'Chamishah in such a case, for it is like giving the stolen item to
someone else as a gift, except that by making it Hefker, he gives it to the
public and not to an individual person.
The To'afos Re'em argues with this view. We find that a Ganav is *exempt*
from Arba'ah v'Chamishah when he sells the item to *two* people jointly, and
he thus is also exempt when he gives the item as a gift to two or more
people. Hence, he is exempt when he makes the item Hefker.
In addition, the Mishkenos Yisrael seems to assume that the act of making an
item Hefker is an act of giving the item to the public. However, many
opinions hold that this is not how Hefker works. Rather, when a person makes
an item Hefker, he is merely withdrawing his own ownership from the item; he
has not transferred the item to the public's ownership. There merely exists
the right for anyone to come and acquire the item for himself. Thus, making
an item Hefker is not comparable to giving an item as a gift.
(a) The TO'AFOS RE'EM says that the Ganav is exempt in such a case. His
ruling is based on the Mechilta which says, "Just like the Mechirah must be
done to a Reshus outside of his (the original owner's) Reshus, so, too, the
Tevichah must be done outside of his Reshus." It is clear from the Mechilta
that the Ganav is Chayav to pay Arba'ah v'Chamishah only when he sells the
animal to someone other than the original owner.
(b) The MISHKENOS YISRAEL (ibid.) rules that the Ganav is Chayav to pay
Arba'ah v'Chamishah in such a case, since he sold the animal. It does not
make any difference to whom he sold the animal. It is not clear how he
addresses the proof of the To'afos Re'em from the Mechilta.
(c) The OR HA'CHAIM HA'KADOSH (Shemos 23:3) writes a novel approach to the
Chiyuv of Arba'ah v'Chamishah of a Ganav. He writes that the Chiyuv applies
whenever the stolen animal is no longer found in his possession -- even if
there are no witnesses that he slaughtered or sold it! If it is not found to
be in his possession, we may assume that it was slaughtered or sold. The
verse requires him to pay Kefel only when the stolen item was found to be in
his possession. If it was not found in his possession, then he must pay
He explains that this is the reason for the apparent repetitiveness in the
verse, "Im Himatzei Timatzei..." -- "If the theft *be at all found*... he
shall pay double" (Shemos 22:3). One "Himatzei" teaches that there are
witnesses who testify that he stole the item, and the second "Timatzei"
teaches that it was found in his possession. Only when both conditions are
met does he have to pay Kefel. He proves this from our Sugya, which shows
that when the Ganav removes the stolen animal from his possession in any
manner, he is Chayav to pay Arba'ah v'Chamishah.
2) HE HIT IT WITH A STAFF
QUESTION: Rebbi Elazar states that when people saw the Ganav hiding in the
woods when he stole and slaughtered (or sold) the animal, he is Chayav to
pay Arba'ah v'Chamishah. The Gemara asks why is he Chayav if he did not do
any act of Kinyan, such as Meshichah, to be Koneh the animal through
Geneivah. Rav Chisda animals that the case is where the Ganav hit the animal
with his staff and made it move. Such an act is an act of Kinyan.
Why does Rav Chisda have to say that the Ganav hit the animal and made it
move? Even if he called out it to it and it came to him, this is a valid
Kinyan for an animal!
(a) The PNEI YEHOSHUA on the Gemara earlier (56b) says that Rav Chisda's
answer is Lav Davka, and it is true that even if the Ganav called out to the
animal and it came to him, he would have been Koneh it through Geneivah.
(The Pnei Yehoshua there explains why the Gemara specifically mentions the
case of hitting the animal and not calling out to it, but his explanation
applies only to that Sugya and not to our Sugya.)
(b) The ME'IRI (56b) writes that the only time that calling to the animal
and having it come in response to one's voice is considered Meshichah is
when one is buying the animal, or being Koneh it as a gift, because in those
cases of Kinyan, the one who is acquiring the animal has the consent of the
original owner. To be Koneh the animal with a Kinyan *Geneivah*, though, it
does not suffice to have the animal come to him in response to his calling
it. Rather, he must do an actual act of Meshichah, or hit the animal with
his staff. (I. Alshich)