QUESTION: The Mishnah (62b) states that a second Ganav who steals a stolen item from the first Ganav does not pay Tashlumei Kefel. Rav explains that this applies only when the original owner did not have Ye'ush. If he had Ye'ush, then the first Ganav acquired the item through Ye'ush, and when the second Ganav stole it from him, he stole an item that was the property of the first Ganav and he must pay Kefel.
Rav Sheshes challenges Rav's statement from a Beraisa in which Rebbi Akiva says that the reason a Ganav who sells an animal he stole must pay Tashlumei Arba'ah v'Chamishah is that "he became rooted in sin," meaning that he added a Shinuy Reshus to the Ye'ush. According to Rav, however, if there was Ye'ush, then the Ganav acquired the item and is now selling his own item, and he should not have to pay Arba'ah v'Chamishah! The Gemara answers, "As Rava said [elsewhere]: [the Ganav must pay Arba'ah v'Chamishah] because he repeated his sin" (that is, not only did he steal, but he sold what he stole; see following Insight). Thus, according to Rava, the reason why a Ganav must pay Arba'ah v'Chamishah is not that he "became rooted in sin," effecting a Shinuy Reshus after Ye'ush, but because he repeated his sin. For this reason, even when he sells the animal before Ye'ush occurs he must pay Arba'ah v'Chamishah.
Why does the Gemara say, "As Rava said [elsewhere]," implying that he made this statement ("because he repeated his sin") with regard to another Mishnah or Beraisa? The Gemara later on this Amud states clearly that it was with regard to this very Beraisa of Rebbi Akiva that Rava made his statement! The Gemara should have answered by saying, "But Rava said [with regard to this Beraisa] that it is 'because he repeated his sin'"!
(The same question applies to the Gemara's citation of Rav Nachman's statement on the Beraisa later.)
ANSWER: The SHITAH MEKUBETZES answers that Rava did not say his statement with regard to the Beraisa. Rather, Rav Sheshes -- later in the Gemara -- wanted to prove his opinion (that a Ganav who sells the stolen animal before Ye'ush is exempt) from a Beraisa, and Rava refutes his proof by explaining that the word "Nishtaresh" means "Shanah" ("repeated"). Rav Sheshes then attempted to bring another proof from a Beraisa, and Rav Nachman refuted his proof by showing that the Beraisa may be understood in a different way. The Gemara here says that just as Rava and Rav Nachman refuted Rav Sheshes' proof from a Beraisa cited later, here, too, they refuted Rav Sheshes' challenge against Rav from the same Beraisos in the same manner.
(The RASHASH in Pesachim (54b) points out a similar usage of this phrase, "As Rav Shisha brei d'Rav Idi said [elsewhere]....")
2) "BECAUSE HE REPEATED HIS SIN"
(a) RABEINU YEHONASAN (cited by the Shitah Mekubetzes) explains that not only did he succumb once to his Yetzer ha'Ra by stealing, he succumbed again to his Yetzer ha'Ra by not repenting from his misdeed and by deriving benefit from it.
(b) The ME'IRI writes that he repeated his act of iniquity, like a person who is steeped in evil and is unable to move away from it.
(c) The LECHEM AVIRIM writes that Rava means to say as Rav Huna teaches (Kidushin 20a, 40a, and elsewhere): "When one repeats his sin, it becomes to him like a permissible act."
3) "YE'USH" AND "SHINUY RESHUS" ACCORDING TO RAV
This answer is difficult in light of Rav Zevid's statement later (115a), where he says that Rav maintains that whether the owner had Ye'ush first and then there was a Shinuy Reshus, or whether there was a Shinuy Reshus and then the owner had Ye'ush, the Ganav is Koneh the item. This implies that Ye'ush alone does not work to be Koneh the item, and that it works only together with a Shinuy Reshus! How can Rav Zevid here say that Rav maintains that Ye'ush alone works to be Koneh the item?
The Gemara there (115a) discusses a case in which a Ganav sold the item that he stole, and only afterwards he was discovered to have been the Ganav. Rav in the name of Rebbi Chiya states that the original owner may make a claim only against the Ganav and not against the buyer (even though the buyer would be able to make a claim against the Ganav). Rebbi Yochanan in the name of Rebbi Yanai argues and says that the original owner may make a claim against the buyer, and then the buyer may in turn make a claim against the Ganav.
Rav Zevid there explains the Machlokes as follows. Everyone agrees that if the owner did not yet have Ye'ush, the owner may make his claim even against the buyer. As long as the owner did not have Ye'ush, the item was still considered his and thus he may claim it from whoever took possession of it. The argument applies where the owner had Ye'ush after the buyer purchased the item from the Ganav. Rebbi Yochanan in the name of Rebbi Yanai maintains that only when there was Ye'ush first and then Shinuy Reshus does the item change possession, but not when the Shinuy Reshus precedes the Ye'ush (as it does in the case there). Since the buyer purchased the item before both Ye'ush and Shinuy Reshus occurred, it is considered as though he stole it directly from the owner, and thus the owner may make a claim against him. In contrast, Rav in the name of Rebbi Chiya maintains that Ye'ush and Shinuy Reshus are Koneh regardless of the order in which they occur.
Rav Zevid's explanation of the view of Rav there implies that although the order of Ye'ush and Shinuy Reshus does not matter, it is necessary to have both Ye'ush and Shinuy Reshus in order to be Koneh. How can Rav Zevid's statement there be reconciled with his statement here?
The Pnei Yehoshua, however, points out that this answer is unlikely.
(b) The Pnei Yehoshua suggests a second answer. Indeed, Rav Zevid understands that according to Rav, Ye'ush alone is Koneh. In the Gemara later (115a), the only reason why Rebbi Zevid mentions both Ye'ush and Shinuy Reshus is not that they are both necessary in order for the Ganav to be Koneh the item, but rather he mentions them both in order to show the view of Rebbi Yochanan. Rebbi Yochanan argues with Rav and rules that not only is Ye'ush not enough, but also that the Ye'ush must occur before the Shinuy Reshus in order for the Ganav to be Koneh. That is why Rav Zevid there mentions both Ye'ush and Shinuy Reshus in his statement, even though he is explaining the view of Rav; he is emphasizing that Rebbi Yochanan maintains both that Ye'ush alone is not enough, and that the Ye'ush and Shinuy Reshus must also be in a specific order. Rav, in contrast, maintains that Ye'ush alone is Koneh.
(c) The OR SAME'ACH (Hilchos Geneivah 1:17) writes that Rav does require both Ye'ush and Shinuy Reshus in order for the Ganav to be Koneh the item, as Rav Zevid implies later (115a). When Rav Zevid here says that Ye'ush alone suffices, he is speaking according to the view of Rav Papa. Rav Papa (on 115a) argues with Rav Zevid (115a) and explains the Machlokes between Rav and Rebbi Yochanan differently. It is according to Rav Papa's view there that Rev Zevid here says that Rav rules that Ye'ush alone is Koneh. Rav Zevid himself is of the opinion that Rav rules that Ye'ush alone is not Koneh without Shinuy Reshus.
(d) The Pnei Yehoshua gives a third answer, which is also the answer proposed by the CHAZON ISH (16:8). They write that when the Gemara says that Rav maintains that Ye'ush alone works, it means that Ye'ush alone works only to be Koneh the actual body of the item. The Ganav is not Koneh the value of the item through Ye'ush; there remains an obligation to pay the owner for the item (as if he is buying the item), as TOSFOS says earlier (66a, DH Hachi). This is why Rav Zevid later (115a) requires both Ye'ush and Shinuy Reshus. There he is explaining how -- according to Rav -- the Ganav is Koneh the item completely, and is even exempt from paying for the item. The Pnei Yehoshua adds that this seems to be the correct answer.
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