BAVA KAMA 76 (10 Av) - Dedicated by Rabbi Dr. Eli Turkel of Ra'anana, Israel, in memory of his father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel. Isi Turkel, as he was known, loved Torah and worked to support it literally with his last ounce of strength. He passed away on 10 Av 5740.
BAVA KAMA 76 (18 Adar) - Dedicated by Reb Gedalya Weinberger of Brooklyn, NY, in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, on the day of his Yahrzeit. Reb Chaim Tzvi, who miraculously survived the Holocaust, raised his children with a strong dedication to Torah and its study.
1) A THIEF WHO SANCTIFIES THE STOLEN ANIMAL
QUESTION: The Mishnah (74b) states that a Ganav who steals an animal and then sanctifies the animal as a Korban is exempt from paying Arba'ah v'Chamishah. The Gemara asks why should he be exempt when he sanctifies the animal? There should be no difference between making the animal Hekdesh and selling the animal to a person; in either case, he transfers the ownership of the animal to another domain.
The Gemara initially answers that the Tana of the Mishnah is Rebbi Shimon who maintains that when a person sanctifies an animal as Kodshim in such a way that he is responsible for it if it becomes lost ("Kodshim she'Chayav b'Achrayusan"), the animal is considered his property still, and thus the Ganav has not transferred the ownership of the animal to another domain by making it Hekdesh. The Gemara refutes this answer by pointing out that the end of the Mishnah quotes Rebbi Shimon, implying that the beginning of the Mishnah is not Rebbi Shimon.
This answer is problematic for a different reason. The answer is based on the assumption that Rebbi Shimon rules that "ha'Gorem l'Mamon k'Mamon Dami" even for an item that is physically present. "Davar ha'Gorem l'Mamon" refers to an object which the owner does not have the right to eat, use, or derive benefit from in any way, such as an animal that is Hekdesh, and yet if the object is destroyed the owner suffers a financial loss. Rebbi Shimon maintains that such an item is considered the property of the owner. Here, the Korban is not really the possession of the owner since it has been sanctified. However, if it is lost the owner will have to pay for it (by replacing it with another animal). Since he is responsible for it, the Korban is considered the property of the owner. However, the Gemara in Pesachim (6a) says that Rebbi Shimon rules that something which can cause a person a financial loss is considered his property only when that item is not physically present or in existence ("Leisei b'Einei"), and when it has already caused the owner a loss. For example, when the Ganav stole from Reuven an animal that was already sanctified as a Korban, Reuven now has a monetary obligation to replace that Korban. Since the animal is considered Reuven's property that the Ganav stole, the Ganav must pay him Kefel. In contrast, while the Korban is still physically present in the possession of the person (the Ganav, in this case), it is not considered "k'Mamon," his property. Why, then, when the Ganav makes it Hekdesh, is it not considered a transfer of ownership like Mechirah?
(a) RAV ELCHANAN WASSERMAN Hy"d (Kovetz Shi'urim, Pesachim #18) writes that Kodshim for which the owner is Chayav b'Achrayusan differs from other items that are "Gorem l'Mamon." In the case of other items that are "Gorem l'Mamon," as long as the item is present it is not considered the owner's property, because the owner has no right to use the item. Kodshim for which the owner is Chayav b'Achrayusan, on the other hand, is considered the property of the owner even when it is still present, because the owner is permitted to use it for some purpose. He may use it to fulfill a Neder-obligation of his that existed before he sanctified this animal. Therefore, Rebbi Shimon maintains that this item of Kodshim, too, is considered the owner's property even though it is still present.
(b) CHIDUSHEI RABEINU MEIR SIMCHAH here writes that in this case, too, the Korban is considered "Leisei b'Einei," not physically present. This is because the Ganav acquired it for himself when he made it Hekdesh, through Shinuy Reshus and Ye'ush. However, the Ganav cannot offer this animal as a Korban because this Korban is a "Mitzvah ha'Ba'ah b'Aveirah" and is thus Pasul, and the verse ("Korbano") teaches that it must be his Korban and not a stolen animal. Thus, the Ganav is obligated to bring a replacement animal in place of this Korban that he sanctified, and he must let the one that he sanctified graze until it gets a blemish. Accordingly, this Korban is considered as though it is no longer present, "Leisei b'Einei," and it is causing the Ganav a financial loss (since he must replace it).
(c) The NETZIV (in Meromei Sadeh) answers in a completely different manner, based on the Gemara in Pesachim (6a). The Gemara there (5b) relates that Rava told the inhabitants of Mechuza to burn the Chametz which Nochri soldiers had deposited with them. Since the Jews had accepted responsibility for the Chametz should it become stolen or lost, it was as if the Chametz was theirs. The Gemara then cites two different versions of a question and answer on Rava's ruling. The first version asks that Rava's ruling makes sense according to the opinion of Rebbi Shimon who maintains that "Davar ha'Gorem l'Mamon" is "k'Mamon Dami," for in this case the Chametz is a "Davar ha'Gorem l'Mamon" since the Jews will be responsible for it if it is lost or stolen, and thus it is like the Chametz is their own property. According to the Rabanan who maintain that "Davar ha'Gorem l'Mamon" is not considered like Mamon, how are is Rava's ruling to be understood? The Chametz is not considered the property of the Jews, so why should they have to destroy it? The Gemara answers that Chametz is different because the Torah specifically states, "Lo Yimatzei" -- even if the Chametz is not the monetary property of the one in physical possession of it, since he accepted responsibility for it he is obligated to burn it as though it belonged to him.
The second version of the Gemara's question there asks that Rava's ruling makes sense according to the opinion of the Rabanan who maintain that "Davar ha'Gorem l'Mamon" is not considered like Mamon. That is why it is necessary for the Torah to state the extra verse of "Lo Yimatzei" -- to teach that even when the Chametz is not the property of the one in possession of it, he still is obligated to burn it. According to Rebbi Shimon, however, who maintains that "Davar ha'Gorem l'Mamon" is "k'Mamon Dami," it is logical that one must burn all Chametz for which one is responsible since it is considered his own Chametz. Why, then, is a special verse of "Lo Yimatzei" needed?
The Gemara answers that Rebbi Shimon also requires a special verse in this case. Without the verse, one would have assumed that a "Davar ha'Gorem l'Mamon" is considered like Mamon only when the item is "Leisei b'Einei," when the item is lost or stolen. When the item is still present -- such as the Chametz -- it is not considered his property since he has not yet become obligated to pay for it, as it has not yet become lost or stolen. Consequently, even according to Rebbi Shimon it would not be considered his property if not for the verse of "Lo Yimatzei."
The Netziv points out that according to the first version in the Gemara there, there is no question why the verse of "Lo Yimatzei" is necessary according to Rebbi Shimon. Why, though, is this not a question according to the first version? Why indeed is a special verse for Chametz necessary if Rebbi Shimon rules that an item for which a person is responsible is considered his property? The Netziv answers that the Chidush of Rava there is that even responsibility for Geneivah and Aveidah alone obligated the Jews to burn the Chametz of the Nochrim deposited with them. This implies that the Jews did not accept responsibility for an Ones that might happen to the Chametz, but only for Geneivah and Aveidah, and the soldiers indeed would not have held the Jews responsible for an Ones. Accordingly, without the verse one might have thought that whenever the person watching the Chametz does not have full and absolute responsibility (including responsibility for any Ones that might happen), he is not obligated to burn the Chametz. Since he is exempt from paying for it if an Ones happens to it -- and thus with regard to an Ones it is not a "Davar ha'Gorem l'Mamon," it logically is not considered his. Therefore, the first version in the Gemara knows that the verse "Lo Yimatzei" is necessary according to Rebbi Shimon; it teaches that even if the person watching the Chametz will not be responsible to pay for it if an Ones happens, nevertheless it is considered his since he is responsible for Geneivah and Aveidah and he must burn it.
The second version in the Gemara does not agree that this is why the extra verse of "Lo Yimatzei" is needed, according to Rebbi Shimon. The second version understands that, indeed, if the person is responsible to pay for the Chametz only if it is lost or stolen but not if an Ones occurs, he is not required to burn it. He is required to burn it only when he is fully responsible for the Chametz (including any Ones that might happen). This was the ruling of Rava, and since this is logical no verse is necessary. This is also the view of Rabah, as TOSFOS (Bava Metzia 82a) points out. That is why the second version in the Gemara in Pesachim must find a different reason for why the Torah writes the extra verse.
The Gemara here in Bava Kama does not follow the view of Rabah, because Rabah maintains that the Ganav acquires the item through Ye'ush alone. Since the Gemara here does not follow the view of Rabah, it also does not follow the second version in the Gemara in Pesachim (which is in accordance with Rabah). Rather, it follows the first version there. According to the first version, there is no difference between an item which is present ("Isei b'Einei") or not present ("Leisei b'Einei"); in either case, Rebbi Shimon rules that if it is a "Davar ha'Gorem l'Mamon" it is considered the property of the owner.
(d) The answers mentioned above explain why Rebbi Shimon rules here that "Davar ha'Gorem l'Mamon" is "k'Mamon Dami" even when it is "Isei b'Einei," even though the Gemara in Pesachim states that he rules that it is "k'Mamon Dami" only when it is "Leisei b'Einei." The MAHARIT ALGAZI (Hilchos Chalah #10) has a completely different approach (see also AFIKEI YAM 2:10). He writes that the Gemara in Pesachim agrees that Rebbi Shimon rules that a "Davar ha'Gorem l'Mamon" is "k'Mamon Dami" even when it is still present ("Isei b'Einei"). When the Gemara there says otherwise, it is expressing only its initial assumption (Havah Amina). The conclusion of the Gemara there is that once the Torah states the verse of "Lo Yimatzei" and teaches that a person must burn Chametz which he does not legally own but for which he has responsibility, we derive from there to all other cases in the Torah that a "Davar ha'Gorem l'Mamon" is "k'Mamon Dami" even when the item is still present.
(e) The DEVAR SHMUEL in Pesachim answers based on the words of the OR SAME'ACH (Hilchos Chametz u'Matzah 4:3), who writes that there are two separate Halachos involved with an item that is a "Davar ha'Gorem l'Mamon." The first Halachah is that the person owns only the monetary value of the item, but not the actual body of the item itself. The second Halachah is that the person owns even the actual body of the item itself. The second Halachah, however, applies only when the item is no longer present, "Leisei b'Einei."
Based on this, the Devar Shmuel writes that when the Gemara says that a "Davar ha'Gorem l'Mamon" is "k'Mamon Dami" even when it is present ("Isei b'Einei"), it means that only the monetary value of the item belongs to the person but not the actual body of the item itself. With regard to Chametz, however, in order to transgress the Isurim of "Bal Yera'eh and Bal Yimatzei" it does not suffice to own the monetary value of the item; the person must own the actual body of the Chametz in order that it be considered his property such that he must burn it, but he does not own that part of the item when it is "Isei b'Einei," as the Or Same'ach writes.