1) ONE WHO IS "MAKDISH" AN ITEM WHICH IS NOT HIS
QUESTION: Rebbi Yochanan rules that an item that was stolen, from which the original owner did not yet have Ye'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him. The owner cannot make it Hekdesh because it is not presently in his domain.
The ruling that the original owner cannot make the item Hekdesh is a Chidush. Rebbi Yochanan is teaching that although the item is still legally his, he cannot make it Hekdesh because Hekdesh requires that the item also be physically in his domain. (The Acharonim discuss whether his inability to make the item Hekdesh when it is not in his domain is because of the fact that he cannot make use of the item and exercise his full rights of ownership over it, and therefore his full ownership of the item is lacking, or whether it is because the Kinyan of Gezeilah that the thief made on the item removed the item partially from the ownership of the original owner.)
However, what is Rebbi Yochanan's Chidush with regard to the thief? It is obvious that the thief cannot be Makdish the item. He does not own it! One certainly would not think that a person may sell an item that does not belong to him, so why would one think that the thief can be Makdish an item that does not belong to him?
(a) TOSFOS in Kidushin (52a, DH v'Hu) writes that Rebbi Yochanan's statement indeed teaches only a Chidush with regard to the owner's inability to be Makdish the item. He teaches no Chidush with regard to the thief's inability to be Makdish it. Rebbi Yochanan adds that the thief cannot be Makdish the item only as an aside ("Agav Gerara"; RITVA).
(b) The RITVA in Kidushin (52a) writes that there is a Chidush even in Rebbi Yochanan's statement that the thief cannot be Makdish the item. The law is that if the owner has Ye'ush, the thief is able to be Makdish the item that he stole, since he is Koneh it through Ye'ush. One might have thought that even when the thief is Makdish the item when the original owner has not had Ye'ush, the item should still be Hekdesh out of doubt -- since there is an opinion (Rebbi Shimon) that maintains that "Stam Gezeilah Ye'ush Ba'alim," in every case of Gezeilah it is assumed that the owner had Ye'ush. Therefore, Rebbi Yochanan teaches that there is no concern that the owner had Ye'ush until there is clear evidence that he had Ye'ush.
(c) RAV ELCHANAN WASSERMAN Hy'd (Kovetz Shi'urim, Kidushin #42) answers that there are two elements involved in making an item Hekdesh. The first element is the actual Kedushah which the item attains. The second is the monetary acquisition (Kinyan Mamon) obtained by Hekdesh over the item.
Rav Elchanan suggests that when an item is made Hekdesh with Kedushas ha'Guf, the monetary acquisition comes as a result of the Kedushah that takes effect on the item (and not vice versa. In contrast, when an item is made Hekdesh with Kedushas Damim, the Kedushah comes as a result of the monetary acquisition.
According to this distinction, the Chidush of Rebbi Yochanan's ruling is understood. Had Rebbi Yochanan not taught that the thief cannot be Makdish the item, one might have thought that one may make an item Hekdesh with Kedushas ha'Guf even when the item does not belong to him, because the act of making the item Hekdesh gives it Kedushah and then, automatically, as a result of the Kedushah the Kinyan Mamon to Hekdesh takes effect. It is not similar to a sale of an item which one cannot make unless he is in possession of the item, for he has no right to transfer the item to another's ownership. With Hekdesh, however, he does not transfer the ownership; he merely gives the item Kedushah and automatically the ownership is transferred. Therefore, Rebbi Yochanan must teach that a thief cannot be Makdish the item, because making something Hekdesh requires that the item be in the person's domain and ownership, as Rebbi Yochanan derives from the verse.
(d) One may also answer based on the words of TOSFOS in Shabbos (58a, DH Af Al Pi). Tosfos writes that making an item Asur b'Hana'ah is considered a Shinuy Ma'aseh on the item. Accordingly, the thief should be able to be Makdish the item, since doing so makes the item Asur b'Hana'ah and it should be a Shinuy Ma'aseh with which he is Koneh the item (the Hekdesh and the Shinuy coming simultaneously). Indeed, the IMREI YOSHER (II 197:1) asks why a thief cannot be Makdish the item that he stole for this reason (see there for his answer). Because this is a strong reason to say that the thief should be able to be Makdish the item, Rebbi Yochanan must teach that he nevertheless cannot be Makdish it (since the verse teaches that it must be completely in his domain in order to be Makdish it). (I. Alsheich)
2) "FEED THE EVILDOER AND LET HIM DIE"
QUESTIONS: Raban Shimon ben Gamliel rules that the requirement to mark one's fruits of Kerem Reva'i in order for people to know that the fruits must be redeemed before they eat them applies only during the Shevi'is year, when the fruits are Hefker and may be taken by anyone. During all other years one is not required to mark his Kerem Reva'i fruits, because anyone who comes to take them without his permission is a thief, and one may "feed the evildoer [a prohibited food] and let him die."
There are a number of questions on this principle of "feed the evildoer and let him die."
(a) The Torah commands, "Lifnei Iver Lo Siten Michshol" (Vayikra 19:14), which means that one is prohibited to cause another person to transgress an Aveirah. Why, then, is there no requirement to mark one's fruits as Kerem Reva'i in order to prevent another person (the thief) from transgressing the Aveirah of eating sanctified fruits without redeeming them?
(b) If the law of "Lifnei Iver" does not apply in this case for some reason, one still should be obligated to mark the fruits. In this case one is not merely "putting a stumbling block" of sin in front of a person and giving him the opportunity to do an Aveirah, but rather he is considered as though he actively feeds the prohibited item directly to the person. Feeding a forbidden food directly to the evildoer is not allowed, even without the prohibition of "Lifnei Iver."
(c) The principle of "Kol Yisrael Arevin Zeh la'Zeh" teaches that every Jew is responsible to help every other Jew do Mitzvos and refrain from Aveiros. Why does the Gemara not apply that principle to this case and require that the fruit owner do whatever he can to prevent another Jew from doing an Aveirah?
(a) Perhaps the prohibition of "Lifnei Iver Lo Siten Michshol" applies only when one actively places the stumbling block of sin in front of the other person (through "Kum v'Aseh"). In the case of the Gemara, however, the prohibited item (the fruit of Kerem Reva'i) was there already, and the owner merely passively allows ("Shev v'Al Ta'aseh") the other person to eat it. "Lifnei Iver" does not apply in such a situation.
This approach answers the first question. However, this approach seems to be contradicted by the wording of the Gemara which says, "Feed the evildoer and let him die," implying that one may actively ("Kum v'Aseh") cause the evildoer to sin.
(b) The CHAZON ISH (Demai 8:9) writes that when the Gemara says "feed the evildoer," it does not mean literally that one may feed someone a prohibited food. Rather, it means that the owner of the fruit is not required to make an effort to save the evildoer from transgressing the prohibition of Kerem Reva'i. The reason for this is that the person eating the fruit is willfully taking the fruit and knowingly transgressing the Isur of Gezeilah. Although he does not know that he is also transgressing the Isur of Kerem Reva'i, the fact that he knows that he is transgressing the Isur of Gezeilah removes from the owner any responsibility for the thief's actions and the owner is not considered as though he causes the thief to sin. Even without the Isur of Kerem Reva'i, the thief is not permitted to take the fruit because of the Isur of Gezeilah, and thus he is taking the fruit unlawfully. Therefore, the owner is exempt from responsibility to stop him from eating the fruit of Kerem Reva'i. Certainly, however, to offer and feed someone such fruit is prohibited.
The approach of the Chazon Ish also answers the first question. The principle of "Lifnei Iver" does not apply in this case because the transgressor is purposely taking the item himself, knowingly transgressing a different Isur (Gezeilah). Hence, allowing him to eat the fruit is not called placing a stumbling block before him, and it is not even considered passively ("Shev v'Al Ta'aseh") placing a stumbling block before him.
(The words of the Chazon Ish imply that the Isur of "Lifnei Iver" also applies when one passively -- through "Shev v'Al Ta'aseh" -- places a stumbling block of sin before someone else, in contrast to the approach suggested above to the first question.)
(See also SHACH YD 151:6, DAGUL MEREVAVAH and GILYON MAHARSHA there, as cited by YOSEF DA'AS here.)
(c) Why is the owner of the Kerem Reva'i fruits not obligated to mark his fruits as prohibited because of the rule of "Arvus"? RAV YERUCHAM FISHEL PERLOW (in his Hagahos to Sefer ha'Mitzvos of Rav Sa'adyah Ga'on, 3:57, pp. 209-210) answers as follows. The obligation of "Arvus" applies only when it is within one's ability to protest effectively against the transgressor's act of sinning. (He proves this from the Gemara in Sanhedrin and Shevuos.) In this case, however, the owner's protest will not be effective because the transgressor anyway intends to transgress the Isur of Gezeilah. Raban Shimon ben Gamliel maintains that since there is no obligation of "Arvus" with regard to the Isur of Gezeilah (since he is going to steal anyway), there is also no obligation of "Arvus" with regard to the other Isur (i.e. Kerem Reva'i) which he will transgress if he eats the fruit.
3) THE RESOLUTION OF CONTRADICTIONS IN RULINGS OF REBBI YOCHANAN
QUESTION: Rebbi Yochanan (69a) rules that an item that was stolen, from which the original owner did not yet have Ye'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him. The owner cannot make it Hekdesh because it is not presently in his domain. The Gemara asks that Rebbi Yochanan seems to contradict himself, because Rebbi Yochanan also states that whenever a ruling is stated anonymously in a Mishnah the Halachah follows that opinion. We find a Mishnah (Ma'aser Sheni 5:1) that implies that the owner of an item is able to effect a change in the status of the item even though the item is not in his domain!
The Gemara here (69b) answers that Rebbi Yochanan found another anonymous Mishnah (Bava Kama 62b) and ruled in accordance with it, and that he ruled like that Mishnah over the other anonymous Mishnah (in Ma'aser Sheni) because a verse supports the ruling of this anonymous Mishnah.
TOSFOS (DH Ela) cites RABEINU TUVYAH who asks that Rebbi Yochanan still seems to contradict himself. Rebbi Yochanan rules that Bereirah does not work ("Ein Bereirah") while he also rules like the anonymous Mishnah, and the anonymous Mishnah (in Demai 7:4) rules that Bereirah does work! Although there is another anonymous Mishnah (that of "Tzenu'in" in Ma'aser Sheni 5:1) which does not hold that Bereirah works, for what reason would Rebbi Yochanan rule like the anonymous Mishnah (in Ma'aser Sheni) over the anonymous Mishnah in Demai?
(a) TOSFOS answers that perhaps when Rebbi Yochanan states that Bereirah does not work, he means that it does not work only where one did not make an explicit condition that it should work (stating that the present status should be determined by a future event). The case of the Mishnah in Demai involves a person who did make an explicit condition (stating that Terumah will take effect now on the two Lugin of wine that in the future he will separate from the rest of the wine).
This answer is problematic, as TOSFOS in Gitin (25b) asks, and as the MAHARSHA and MAHARAM here ask. If it is true that Rebbi Yochanan agrees that Bereirah works in a case where the person made an explicit condition, then what is the Gemara's question when it asks a contradiction from Rebbi Yochanan's statement regarding "Kol ha'Mislaket" (which implies that he rules that Bereirah does work) to his statement regarding "Achin she'Chalku" (where he said that brothers who inherit property are considered like buyers, and each one must return his property to the other at the Yovel year since Bereirah does not work to determine that the property that each brother received was the property that was truly intended for him)? In the case of "Kol ha'Mislaket," the person made an explicit condition, and that is why Rebbi Yochanan says that Bereirah works there!
Tosfos in Gitin gives two answers to this question.
In his first answer, Tosfos says that the Gemara indeed could have given this as an answer to its question here; it could have differentiated between a case of Bereirah where one made an explicit condition, and a case of Bereirah where one made no condition. The Gemara, however, preferred to answer that Rebbi Yochanan reads the Mishnah in Ma'aser Sheni as "Kol ha'Nilkat" and not "Kol ha'Mislaket," and that he found another anonymous Mishnah which he ruled like. The Gemara prefers this answer because this answer does not necessitate a change in the Girsa of the Mishnah (from "Nilkat" to "Mislaket") or switching the opinions of the Tana'im.
In his second answer, Tosfos explains that if the Gemara would have answered that Rebbi Yochanan rules that Bereirah works when the person makes an explicit condition, the Gemara still would have had a question from another ruling of Rebbi Yochanan in Gitin (25a), where Rebbi Yochanan rules that when a man writes a Get but stipulates that he will decide later to which wife he wants to give it, the Get is entirely invalid because Bereirah does not work. This answer would not have sufficed to answer that question, because in that case Rebbi Yochanan rules that Bereirah does not work even though the person made an explicit condition.
(b) The BEIS EFRAIM (EH 3:122, p. 83) answers that Rebbi Yochanan ruled like the anonymous Mishnah (that of "Tzenu'in" in Ma'aser Sheni 5:1) that holds that Bereirah does not work, and not like the anonymous Mishnah (in Demai 7:4) that holds that Bereirah does work, because the Mishnah in Demai is clearly a minority opinion (the opinion of Rebbi Meir). The Mishnah in Ma'aser Sheni, on the other hand, is the opinion of Rebbi, Rebbi Yosi, and Rebbi Shimon. Rebbi Yochanan chose to rule like an anonymous Mishnah which follows the opinion of the majority, instead of ruling like an anonymous Mishnah which follows the opinion of a minority opinion.
(c) The BEIS EFRAIM suggests another answer, which is also the answer given by the ARUCH LA'NER in Sukah (23b). They write that the Gemara in Beitzah explains that the opinion that rules "Ein Bereirah" applies this ruling only for matters that are mid'Oraisa. For matters that are mid'Rabanan, Bereirah does work. Therefore, no question can be asked on Rebbi Yochanan from the anonymous Mishnah in Demai, because that case discusses Terumah d'Rabanan, according to RABEINU TAM (cited by Tosfos in Bava Metzia 88a, DH Tevu'as) who maintains that one who buys produce after it has been processed with Miru'ach (smoothing the pile) is obligated to separate Terumos u'Ma'aseros only mid'Rabanan. Therefore, Rebbi Yochanan may agree with that Mishnah that Bereirah works, since it applies Bereirah only to a Halachah d'Rabanan.
(The Aruch la'Ner concludes by writing that "after I wrote this answer, I found that the PNEI YEHOSHUA in Gitin also writes that according to the opinion of Rabeinu Tam, the question of Tosfos is answered, and I rejoiced in having answered like he answers.")