1) A THIEF WHO SLAUGHTERS AN ANIMAL THAT CANNOT BE SOLD
QUESTION: The Gemara (76a) explains that Rebbi Shimon maintains that when a Ganav steals a sanctified animal (Kodshim) and slaughters it, he is obligated to pay Arba'ah v'Chamishah. The Gemara asks why, according to Rebbi Shimon, should the Ganav be Chayav for Arba'ah v'Chamishah? The Shechitah of the sanctified animal does not render it fit to eat (since a person may not eat Hekdesh), and Rebbi Shimon is of the opinion that an act of Shechitah that does not render the animal fit to eat is not considered a valid Shechitah.
Rebbi Yochanan answers that the case is where the Ganav slaughters the animal of Hekdesh while it is unblemished, and he slaughters it inside the Azarah with intent that the Korban be for the sake of the one who sanctified it. Reish Lakish answers that the case is where the Ganav slaughters the sanctified animal after it became blemished, outside the Azarah.
The Gemara here asks why Reish Lakish does not give the same answer as Rebbi Yochanan. The Gemara explains that Reish Lakish derives from the verse (Shemos 21:37) that the Ganav is Chayav for slaughtering the animal he stole only when he also would have been Chayav had he sold the animal. Since Kodshim cannot be sold (as Rashi here writes, its status of Hekdesh cannot be removed through its sale), the Ganav is not Chayav when he slaughters the animal.
However, the Gemara earlier (71a) quotes a Beraisa which states that one who steals and slaughters a Shor ha'Niskal is Chayav for Arba'ah v'Chamishah. Why is he Chayav in that case? A Shor ha'Niskal is Asur b'Hana'ah and cannot be sold, and thus a Ganav should not be Chayav for slaughtering it according to Reish Lakish! (TOSFOS to Kesuvos 33b, DH Ganav)
(a) TOSFOS in Kesuvos answers that a Shor ha'Niskal differs from an animal of Kodshim. Kodshim cannot be sold at all, under any circumstances. In contrast, a Shor ha'Niskal may be sold to a Nochri, and since the Isur Hana'ah does not become transferred to the money, the sale takes effect.
The Acharonim question Tosfos' answer from the Gemara earlier (45a) which clearly teaches that a Shor ha'Niskal cannot be sold at all. The KOVETZ SHI'URIM (Kesuvos #117) answers that the Gemara there refers only to the sale of a Shor ha'Niskal to another Jew when it says that the sale does not take effect.
What is the difference between selling the Shor ha'Niskal to a Jew and selling it to a Nochri? The reason why an item that is Asur b'Hana'ah may not be sold is because it is not considered the owner's property to sell. Accordingly, just as the owner cannot sell it to a Jew he should not be able to sell it to a Nochri.
The Kovetz Shi'urim explains that Tosfos maintains that the reason why an item that is Asur b'Hana'ah may not be sold is not that the seller is unable to sell the item. Rather, it is because the buyer is unable to receive the item. Indeed, the seller technically is able to sell the item. (Tosfos follows the view of the Rishonim who maintain that one may have possession of an item that is Asur b'Hana'ah.) The buyer, however, is prohibited from buying the item because he is forbidden from benefiting from it. A Nochri, on the other hand, is not prohibited from buying such an item, and therefore the sale is effective.
(b) TOSFOS in Kesuvos suggests a second answer based on the opinion of RABEINU TAM. Rabeinu Tam maintains that a Shor ha'Niskal is not Asur b'Hana'ah while it is alive. Only after its death does it become Asur b'Hana'ah. While it is alive it certainly may be sold, and therefore if the Ganav slaughters it he will be Chayav for Arba'ah v'Chamishah.
(c) The KOVETZ SHI'URIM challenges the question in the first place. In the Gemara earlier (68b), Reish Lakish himself rules that the Chiyuv of Arba'ah v'Chamishah for selling a stolen animal applies only when the Ganav sells the animal before the owner has Ye'ush. Accordingly, Reish Lakish maintains that it is not necessary for the Ganav's act (of selling the stolen animal) to be effective in order for him to be Chayav for Arba'ah v'Chamishah, since -- if he sells it before Ye'ush -- the sale certainly does not take effect; he merely needs to do the act of selling in order to be Chayav.
If this is the view of Reish Lakish, what is the question of Tosfos? In the Gemara here it is Reish Lakish who says that in order for the Ganav to be Chayav for slaughtering the animal, it must be possible for him to be Chayav for selling the animal. Reish Lakish himself maintains that the sale of the animal does not need to take effect in order for the Ganav to be Chayav. Hence, if the Ganav steals and sells a Shor ha'Niskal, even though the sale does not take effect he still will be Chayav (as the Beraisa says) because he did an act of selling with an act of Kinyan, which is no different from an act of selling the animal before the owner has Ye'ush.
To defend the words of Tosfos, the Kovetz Shi'urim explains that Tosfos understands that there is a difference between selling an animal before Ye'ush and selling an animal that is a Shor ha'Niskal. When the Ganav sells the animal before Ye'ush, the reason why he is Chayav even when his act is ineffective is that the animal itself could be sold if not for the fact that the seller stole it. If it would not be stolen animal, the sale would take effect. This is the Chidush of the Torah when it obligates a Ganav to pay Arba'ah v'Chamishah for selling a stolen animal; the Ganav is Chayav when the only factor preventing the sale from taking effect is the fact that the animal is stolen. In contrast, the sale of a Shor ha'Niskal is ineffective not merely because the animal was stolen but because the animal is a Shor ha'Niskal. Even if it had not been stolen, the sale of the Shor ha'Niskal would not have been effective.
2) THE EXCLUSION OF AN ANIMAL OF "KIL'AYIM"
QUESTION: The Gemara quotes a Beraisa which cites a verse as the source that an animal that is a crossbreed is disqualified from being offered as a Korban.
The LEVUSH (OC 649:4) states that the reason why an Esrog which is a "Murkav" (grafted between two species) is not valid is that an Aveirah was done with it (the Aveirah of grafting fruit) in its creation. The Acharonim ask that if that is sufficient reason to disqualify an item from being used for the Mitzvah, why is a verse needed to teach that an animal of Kil'ayim is invalid as a Korban? It should be invalid simply because it came about through an Aveirah.
(a) The BIKUREI YAKOV (649:19) writes that the Levush means that if not for the verse that teaches that an animal of Kil'ayim may not be used, one would not have known that an animal with which an Aveirah was done is invalid as a Korban. It is from that verse itself that the Levush derives that an item with which an Aveirah was done may not be used for a Mitzvah.
(b) The CHASAM SOFER (Sukah 31b, DH uva'Zeh) answers as follows. The reason behind the prohibition against using an animal of Kil'ayim as a Korban is not that an Aveirah was done with it. The Aveirah was the person's transgression of the Isur of Revi'ah (crossbreeding animals). If the animal was born as a "natural" crossbreed (i.e. its parents of different species mated without any human intervention), no Aveirah was done with it. That is why a verse is needed to teach that an animal of Kil'ayim may not be brought as a Korban; one would not have known that such an animal is prohibited when no person crossbred the animal.
In contrast, in the case of a grafted Esrog, an Isur rests on the Kil'ayim itself; one who keeps fruit of Kil'ayim is punishable with Malkus. Therefore, it is the Aveirah of the Kil'ayim which prevents it from being used for the Mitzvah.