QUESTION: The Gemara (65b) says that Beis Shamai and Beis Hillel disagree about whether an item given in exchange for an Esnan Zonah may be offered as a Korban. Beis Shamai, who prohibits it, derives the prohibition from the extra word, "Gam" ("also"), in the verse which prohibits offering an Esnan Zonah upon the Mizbe'ach (Devarim 23:19). The Gemara asks what Beis Hillel does with the extra word "Gam," and it concludes that this indeed is a difficulty on the view of Beis Hillel.

Earlier (54a), Rava says that the word "Chamor" ("donkey") in the verse which discusses Bor (Shemos 21:33) is a difficulty on the view of Rebbi Yehudah, and the word "Seh" in the verse discussing Aveidah (Shemos 22:8) is a difficulty on the view of everyone. Why does Rava there not also mention the Gemara here, which says that the word "Gam" in the verse which discusses Esnan is a difficulty on the view of Beis Hillel?

(a) TOSFOS earlier (54a, DH Chamor d'Bor; see also Bava Metzia 27a) answers that Rava there mentions only "Chamor" of Bor and "Seh" of Aveidah because they are similar to each other in that they are both animals. Similarly, the TOSFOS HA'ROSH (Bava Metzia 27a) writes that "Chamor" and "Seh" are "Inyan Echad."

(b) The SEFER YERE'IM (2:293) answers that Rava mentions only "Chamor" of Bor and "Seh" of Aveidah because the laws of those subjects are taught primarily in Maseches Bava Kama. The subject of Esnan Zonah, on the other hand, in which the extra word "Gam" is written, is a subject whose Halachos are not discussed primarily in Bava Kama but rather in Temurah.

(c) The PNEI YEHOSHUA here gives a different explanation. He asks, why does the Gemara say that the word "Gam" in the verse is a difficulty on the view of Beis Hillel? There is a simple answer: Beis Hillel needs the word "Gam" to include a "Shinuy ha'Chozer," a change made to the item that is not permanent. Such a Shinuy does not enable one to be Koneh the object with regard to Esnan, and thus it needs its own Ribuy in the verse.

This question is not a difficulty according to Rebbi Yochanan and Rav Chisda, who maintain that for non-Hekdesh purposes (such as returning a stolen item to its owner), one does not acquire with a "Shinuy ha'Chozer," and thus certainly for Hekdesh purposes one does not acquire with such a Shinuy, because such an item is exceedingly loathsome to Shamayim. However, Rabah argues and maintains that one does acquire with a "Shinuy ha'Chozer" for non-Hekdesh purposes, and, consequently, he should need a Ribuy (i.e. the extra word "Gam") to teach that one is not Koneh such an item with regard to Esnan!

The answer must be that this Sugya does not follow the view of Rabah, but rather the view of Rebbi Yochanan and Rav Chisda who maintain that one is not Koneh, even for non-Hekdesh purposes, with a "Shinuy ha'Chozer." According to Rabah, however, the word "Gam" indeed is needed to teach that one does not acquire an item with a "Shinuy ha'Chozer" with regard to Esnan Zonah, and thus the word is no longer extra according to Beis Hillel.

Since the word "Gam" is not extra according to Rabah's view, Rava earlier (54a) does not mention it as one of the difficulties of extra words.

(See MAHARSHA in Mahadura Basra, who asks the same question as the Pnei Yehoshua -- why does the Gemara not answer that according to Beis Hillel, the word "Gam" is necessary to teach that one is not Koneh with a "Shinuy ha'Chozer"? The Maharsha gives two answers. His first answer is like that of the Pnei Yehoshua, that the Gemara means that Beis Hillel's opinion is difficult according to the opinions which disagree with Rabah. See there for his second answer.)

(d) The ZERA AVRAHAM (2:54:2; see HAGAHOS PRI YITZCHAK there) answers that the Gemara earlier (54a) does not mean that both "Chamor" of Bor and "Seh" of Aveidah are extra. Had the Torah written only one of them, it would have been necessary, for it would have taught that Tovas Hana'ah has the status of monetary value (see there). The Gemara is asking that once the Torah writes both of them, one of them is extra. In contrast, the extra word "Gam" according to Beis Hillel is a difficulty in and of itself. According to this approach, it is clear why Rava (on 54a) does not mention "Gam" according to Beis Hillel.

QUESTION: The Gemara discusses whether a thief acquires, through "Ye'ush," the item he stole. Rav Yosef attempts to prove from a Beraisa that he does not acquire through Ye'ush. The Beraisa says that if one steals Chametz and then Pesach comes and passes, the thief must give back only the Chametz to the owner (and he says, "Here is your item before you, take it"). He does not have to compensate him with money even though the Chametz is now prohibited to be used. If a thief would acquire through Ye'ush, the thief who stole the Chametz should acquire the Chametz through Ye'ush (since the owner certainly had Ye'ush once Pesach came and made the Chametz prohibited), and he should be obligated to compensate the owner with money. Rabah answers that the case of the Beraisa is different. In that case, even though the owner had Ye'ush the thief did not want to acquire the Chametz. In a normal case, however, the thief does want to acquire the stolen item and thus he acquires it through Ye'ush.

This answer is very difficult to understand. What difference does the thief's intention make? Whether or not the thief intended to acquire the item he stole, the fact that the original owner had Ye'ush caused the item to leave his domain and the item is no longer his. Why may the thief say, "Here is your item before you, take it"?

(a) The KETZOS HA'CHOSHEN (406:2) proves from the Gemara here that Ye'ush does not make an item completely Hefker (as the NESIVOS HA'MISHPAT (262) asserts). That is, when the owner of an item has Ye'ush, he is not considered as though he makes his item Hefker. Rather, Ye'ush functions by providing a "Heter Zechiyah," an allowance for whomever finds the item to take possession of it. The Torah gives permission to anyone to take possession of the item after the owner has had Ye'ush. However, as long as no one has yet taken possession of the item, the item has not left the possession of the original owner completely.

A practical consequence of viewing Ye'ush in this way exists in a case in which the owner has Ye'ush and then stops having Ye'ush. For example, he spots his lost item from afar (and now he no longer despairs of ever retrieving it) but before he has a chance to pick it up from the ground, someone else comes along and picks it up with intent to acquire it. If Ye'ush is considered like Hefker, the person who picked up the item first acquires it. If Ye'ush is not like Hefker but rather it merely provides an allowance to acquire the item from the domain of the owner, this allowance applies only while the owner has Ye'ush. When the owner no longer has Ye'ush (because he has found his item), the item is completely in his possession and no one else has permission to take it.

This explains why the thief may say, "Here is your item before you." Since he does not want to acquire it, it is still in the domain of the original owner. The original owner's Ye'ush did not make it Hefker, but merely provided an allowance for anyone to acquire it. Since no one wanted to acquire the Chametz, it remains in the original owner's domain. (RAV SHIMON SHKOP, in Chidushim to Bava Metzia 21:7, writes that the Ketzos ha'Choshen's proof from the Gemara here for how Ye'ush functions "is a proof that has no rebuttal.")

(b) The grandson of the TERUMAS HA'KRI proposes (in his Hagahos to the Terumas ha'Kri 262:1) a way to refute the proof of the Ketzos ha'Choshen, and he gives a different answer to explain the Gemara. He points out that with regard to mistaken Ye'ush ("Ye'ush b'Ta'us"), the Poskim write that such Ye'ush does not work and is not considered Ye'ush. Hence, if a person has Ye'ush that he will never retrieve his item for a given reason, and then he discovers that the reason did not exist, his Ye'ush does not take effect and the item remains in his domain completely.

The case of the Gemara here is similar. The owner of the Chametz had Ye'ush because he assumed that the thief would burn the Chametz before Pesach in fulfillment of the Mitzvah to destroy Chametz. The thief, however, did not burn the Chametz. Had the owner known that the thief was not going to destroy the Chametz, he would not have had Ye'ush, and hence his Ye'ush is a "Ye'ush b'Ta'us" and does not take effect. Therefore, the thief may say to him, "Here is your item before you," and he does not have to compensate the owner with money.

According to this explanation, why does the Gemara need to answer that the thief did not want to acquire the Chametz? Even if he did want to acquire the Chametz, he would not have acquired it because the Ye'ush of the owner turned out to be an invalid Ye'ush!

The Hagahos to the Terumas ha'Kri answers that the only time a mistaken Ye'ush does not take effect is when the finder (or thief) of the item wants to acquire it after the mistake becomes evident. In the case of the Gemara here, however, had the thief wanted to acquire the Chametz, his intention would have been before it became clear that the Ye'ush was in error. Consequently, even after it becomes evident that the Ye'ush was in error, the right to acquire does not become invalidated retroactively (l'Mafrei'a). Therefore, the Gemara says that the thief did not want to acquire the item, and that is why the item is still in the domain of the owner after the mistaken Ye'ush.

(c) RAV YITZCHAK ELCHANAN SPECTOR zt'l (in BE'ER YITZCHAK) also refutes the proof of the Ketzos ha'Choshen and disagrees with him about how Ye'ush functions. He explains the Gemara here as follows.

Even if Ye'ush works by making the item Hefker, the thief still may give back the Chametz and say, "Here is your item before you." The law is that although Chametz becomes forbidden on Pesach (and thus it is like ownerless property), a person still transgresses the prohibition against possessing Chametz because the Torah places the Chametz back into the owner's domain in order to make him liable for "Bal Yera'eh" and "Bal Yimatzei." For this reason, the thief may say to the original owner to take back his Chametz, because the Torah itself places the Chametz in the domain of its owner.

If, however, the thief would have intended to acquire the Chametz, he would have acquired it through Ye'ush. The Torah would not have placed the Chametz back into the possession of the original owner to make him liable for "Bal Yera'eh" and "Bal Yimatzei" since someone else acquired the Chametz. (See NODA B'YEHUDAH 2:63, and TZELACH to Pesachim 6a.)

Rav Yitzchak Elchanan questions this approach based on the words of the SHITAH MEKUBETZES (86a) and NODA B'YEHUDAH (1:20), who write that one whose Chametz is stolen does not transgress the prohibitions of "Bal Yera'eh" and "Bal Yimatzei," even when the thief does not intend to acquire it. Clearly, according to the Shitah Mekubetzes and Noda b'Yehudah, the Torah does not place the Chametz into the domain of the owner in such a case. Hence, the question returns -- why may the thief say to the original owner, "Here is your item before you"?

(Another question may be asked on this approach. This Gezeiras ha'Kasuv -- that the Torah places Chametz back into the domain of the owner -- applies only to make him liable for the prohibitions of "Bal Yera'eh" and "Bal Yimatzei." It does not make him the full owner of the Chametz, since the Chametz is forbidden to him during Pesach. Rav Shimon Shkop zt'l infers this from the wording of the Gemara in Pesachim which says that the Torah makes the Chametz "like (k'Ilu) it is in his domain," but not that it actually puts it into his domain. -I. Alsheich)

(d) Rav Yitzchak Elchanan therefore gives a second answer. He writes that even if Ye'ush works like Hefker and removes the Chametz from the owner's possession entirely, the thief still may say, "Here is your item before you," as long as no one (including the thief) has acquired the Chametz. This is because the Gemara (66a) derives from the verse, "v'Heshiv Es ha'Gezeilah Asher Gazal" (Vayikra 5:23), that one must return an item "k'Ein she'Gazal," like the item that he stole. The Chametz which the thief is holding and wants to return is "k'Ein she'Gazal." If the Ye'ush had been due to the negligence of the thief in taking care of the Chametz, then the thief would not be able to say, "Here is your item before you." In this case, however, the Ye'ush was due to the fact that Pesach arrived and not due to any act of Peshi'ah of the thief, and therefore the thief is entitled to give back the Chametz and say, "Here is your item before you," due to the Gezeiras ha'Kasuv of "Asher Gazal."