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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 34



(a) We just concluded that Rebbi Meir, who holds that someone who stole and Shechted on Shabbos or to Avodah-Zarah, or who stole a Shor ha'Niskal (an ox that killed and that had to be stoned) is Chayav to pay, is speaking when it was the thief's Sh'li'ach who performed the Sh'chitah. The problem that we now have with the Rabbanan who argue with Rebbi Meir is - why should the thief then be Patur from paying (seeing as it is not he who is Chayav Misah)?

(b) So we establish the Rabbanan like Rebbi Shimon - who says 'Shechitah she'Einah Re'uyah, Lo Sh'mah Shechitah' (a Shechitah that is unfit (to eat) is not considered a Shechitah.

(c) The Shechitah of an ox that was worshipped is invalid because Avodah-Zarah is called "Zivchei Meisim" - whereas that of a Shor ha'Niskal is invalid because the Torah writes in Mishpatim "ve'Lo Ye'achel es Besaro" (which is otherwise superfluous, seeing as it is obvious that an animal that has to be stoned to death cannot be eaten).

(a) The Mishnah in Bava Kama rules that if someone Shechts on Yom Kipur, his Shechitah is valid - and the same will apply if he Shechts on Shabbos.

(b) In that case - back comes the question: Why, according to the Rabbanan, is the thief who stole before Shabbos Patur from paying four or five times if his Sh'liach Shechted the animal on Shabbos?

(c) We therefore establish the Rabbanan of Rebbi Meir as Rebbi Yochanan ha'Sandlar - who says that whatever is performed (be'Isur) on Shabbos, is forbidden to eat.

(d) He learns from the Pasuk ...

1. ... "u'Sh'martem es ha'Shabbos, Ki Kodesh Hi" - that 'Ma'aseh Shabbos' (that is performed be'Meizid) is forbidden.
2. ... "Lachem" - that although if it is food, it may not be eaten, it is nevertheless Mutar be'Hana'ah (to derive benefit from it).
3. ... "Mechalelehah Mos Yamus" - that 'Ma'aseh Shabbos' (be'Shogeg) is permitted (even to eat).
(a) According to Rebbi Meir, someone who cooks ...
1. ... be'Shogeg on Shabbos, may eat the food even on that day. According to Rebbi Yehudah - neither he nor anybody else may eat it until Motza'ei Shabbos (like Rebbi Meir holds by Meizid - see Tosfos DH 'ha'Mevashel').
2. ... be'Meizid, neither he nor anybody else is permitted to eat it until Motza'ei Shabbos. According to Rebbi Yehudah - *he* is never permitted to eat it.
(b) According to Rebbi Yochanan ha'Sandlar, if someone cooked on Shabbos be'Shogeg - others are permitted to eat the food on Motza'ei Shabbos, but he may never eat it (like Rebbi Yehudah holds by Meizid).

(c) Rav Acha and Ravina argue over Ma'aseh Shabos according to Rebbi Yochanan ha'Sand'lar. In the opinion of one of them, Ma'aseh Shabbos is only de'Rabbanan, in spite of the Pasuk "Ki Kodesh Hi" - because we extrapolate from the word "Hi", 'Hi Kodesh, ve'Ein Ma'asehah Kodesh'.

(d) If it is only de'Rabbanan, we will be forced to say - that the Rabbanan only argue with Rebbi Meir (to exempt the thief from paying four or five times) when he steals an animal of Avodah-Zarah or a Shor ha'Niskal, but not when he steals an animal and Shechts it on Shabbos (when he will be Chayav to pay).

(a) We learned above that Rebbi Meir obligates a thief to pay four or five times, even though his Sh'li'ach Shechted it to Avodah-Zarah. One may not derive benefit from an animal that one Shechts to Avodah-Zarah - from the moment that the first Siman (one of the two pipes that need to be cut) has been Shechted.

(b) The problem with the thief having to pay four or five times - is that the animal becomes forbidden after the *first* Siman, at which point the animal no longer belongs to the owner (because it is Asur be'Hana'ah). So why is the thief obligated to pay four or five times when the Sh'li'ach Shechts the *second* Si'man.

(c) In order to answer this Kashya - Rava establishes the Beraisa when the Sh'li'ach said that he only intended to worship the animal when he cut the *second* pipe.

(d) We have a similar problem with Rebbi Meir's ruling, that the thief also has to pay four or five times if the animal was a Shor ha'Niskal - because a Shor ha'Niskal is Asur be'Hana'ah, in which case it does not belong to the owner.

(a) Rava establishes the second ruling of Rebbi Meir when the thief stole the animal from the house of a Shomer Sachar (who is obligated to pay for theft). The full case is - when the ox gored a person whilst it was under the Shomer's jurisdiction, and it was taken to Beis-Din, who pronounced it a Shor ha'Niskal (sentencing it to death).

(b) Rabah also establishes Rebbi Meir both like Rebbi Ya'akov and like Rebbi Shimon. Rebbi Shimon says - that someone who steals someone's animal which is Hekdesh and Shechts or sells it, is Chayav to pay four or five times (despite the fact that the animal does not belong to the 'owner'), because the 'owner' is obligated to pay Hekdesh, and whatever causes a person to pay (when it goes missing) is considered as if it was his.

(c) Rebbi Ya'akov holds - that if the Shomer would have returned the Shor ha'Niskal to the owner, he would have been Patur from paying (because he could have said 'Here is your animal. Take it' - even though it has no value).

(d) All this forms the case of Shor ha'Niskal, for which the thief is Chayav four or five times (because as far as the Shomer is concerned, the animal is worth money to him, because he could have returned it to the owner and become Patur from paying. Consequently, it is a 'Davar ha'Gorem le'Mamon').

(a) Rabah establishes Rebbi Meir even when the thief himself Shechted the animal. Nevertheless, he is Chayav to pay four or five times (even though he is also Chayav Misah) - because K'nas is a Chidush, and is not therefore subject to the principle of 'Kam Lei bi'de'Rabah Minei'.

(b) We know that the author of this statement (and those that follow) is Rabah and not Rava - because later Rav Papa will query Abaye about one of these statements. Had it been Rava who made the statement, there is no reason for Rav Papa to have asked Abaye and not Rava himself, seeing as Rava was his Rebbe. But if it was Rabah, then we can assume that he had died by that time, so Rav Papa could not ask him directly.




(a) Rabah says that if someone Shechted a kid-goat on Shabbos ...
1. ... that he had stolen during the week - he is Chayav to pay four times, despite the fact that he is Chayav Misah (because it is a K'nas, as we just explained)/
2. ... that he stole on Shabbos - he is Patur, because he is Patur from paying the Keren (the principle), since he is Chayav Misah, and the Keren is Mamon and not K'nas.
(b) In the later case, he is not Chayav to pay three times (for Shechting the goat) - because the Torah specifically writes "Arba'ah va'Chamishah" and not "Sh'loshah ve'Arba'ah".

(c) Rabah holds ' like Rebbi Meir, who holds 'Lokeh u'Meshalem (Mamon)', and, in his opinion, (even) 'Meis u'Meshalem - K'nas)'.

(d) Rabah issues the same rulings with regard to someone who steals an animal and then Shechts it in the tunnel through which he is carrying it (depending upon whether he had stolen it earlier or only at that moment). He needs to teach us the above Halachah with regard to both Shabbos and a tunnel. We would not have been able to learn that the Chiyuv Misah ...

1. ... in the tunnel absolves him from paying, from Shabbos - because the Isur of Shabbos is permanent (any time that the witnesses testify that one broke Shabbos, he will be Chayav), whereas that of the tunnel is only momentary (he is only Chayav Misah if he is caught in the act [whilst he is actually in the tunnel]).
2. ... on Shabbos absolves him from paying, from the tunnel - because the tunnel does not require warning, whereas Shabbos does.
(a) Rav Papa rules that if a thief Shechts an animal on Shabbos that he stole before Shabbos, he is Chayav to pay, whereas had he borrowed the same animal, rather than stolen it, he would be Patur. The latter case not be speaking about paying four or five times - because there is no Chiyuv to pay four or five times for a borrowed animal.

(b) Rav Papa is coming to teach us - that he only acquires it (as regards Onsin) when he Shechts it (and not when he initially takes it into his domain), and then of course, he is Patur because of 'Kam Lei bi'de'Rabah Minei'.

(c) Rav Papa ruled that when a Sho'el takes the animal into his domain the animal, he becomes obligated to feed it, leading us to believe that he would also acquire it as regards Onsin at that moment.

(a) Rava rules that if someone dies, leaving his heirs a borrowed cow, they are permitted to use it until the period of borrowing expires. However - they are not obligated to pay should the cow die (because *they* did not borrow it).

(b) If, believing the cow to have been their father's, they Shecht and eat it - they are obligated to pay the value of a cheap meal (which is what they gained - monetarily) [two thirds of the estimated value].

(a) Rava concludes with the statement that if their father left them land, they are obligated to pay. This might come to qualify his first statement (that even if the borrowed cow dies, they are obligated to pay in this case), and certainly his second one (if they unknowingly Shechted and ate the animal, to teach us that they will be obligated to pay the full value) - or it might come to qualify his second statement only, and not the first one.

(b) If Rava's final statement refers to ...

1. ... his first statement (to teach us that even if the borrowed cow dies, they are obligated to pay) - the reason will be because their father's property became mortgaged as soon as he received the animal.
2. ... the second one (that if they unknowingly Shechted and ate the animal, they will be obligated to pay its full value) - the reason will be because they are partially to blame for not taking more care before Shechting it.
(c) According to the first interpretation - Rava will not hold like his Talmid Rav Papa, who holds that the Chiyuv Onsin comes only when the O'nes occurs (and not when he receives the animal, as Rava clearly maintains); whereas according to the second interpretation - there is nothing to tell us that he does not conform with him.
(a) We learned above that Rebbi Yochanan establishes our Mishnah by a rapist who was not warned (which explains why he has to pay), whereas Resh Lakish establishes it according to Rebbi Meir (who holds 'Lokeh u'Meshalem').
1. Rebbi Yochanan declines to learn like Resh Lakish - because he prefers to establish our Mishnah like the Rabbanan, rather than like Rebbi Meir.
2. Resh Lakish declines to learn like Rebbi Yochanan - because in his opinion, seeing as when the rapist *is* warned, he is exempt from paying (according to the Rabbanan), he will also be exempt, even when he is *not*.
(b) This dispute is based on another dispute - where Rebbi Yochanan holds that, according to the Rabbanan, 'Chayvei Malkos Shogegin' are Chayav to pay, and Resh Lakish holds that they are Patur.
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