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Bava Kama, 79


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 v'Chamishah.

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 Mechirah.

1. What is the Halachah where the Ganav steals an item and then makes it Hefker?

(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.

(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.

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)?

(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 Arba'ah v'Chamishah.

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.


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)

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