1) THE "CHOMESH" IS NOT "ME'AKEV"
QUESTION: The Mishnah (110a) discusses the case of a person who stole from a convert (who had no heirs) and swore falsely that he did not steal. Afterwards, he admitted his transgression, but the convert died before he had a chance to return the money to him. The Mishnah says that he must give the principle (Keren) and the extra fifth (Chomesh) to the Kohanim, and offer an Asham Gezeilos. The Mishnah adds that if he gave the Keren to the Kohanim but not the Chomesh, the lack of the Chomesh does not prevent him ("Me'akev") from bringing the Asham.
The Gemara (111a) quotes a Beraisa that states that if one paid the Keren but did not bring the Asham, or he brought the Asham but did not pay the Keren, he did not fulfill his obligation. This is derived from the verse, "The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him" (Vayikra 5:16). (See RASHI (DH b'Ayil) who explains how this law is derived from the verse.)
The Beraisa adds that although the payment of the Keren and the offering of the Asham are necessary for atonement, the Chomesh is not. This is also derived from the verse, "The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him," which implies that only the Keren and the Asham are Me'akev the atonement, and not the Chomesh.
It is apparent that the Beraisa maintains that only the Keren and Asham are required for atonement, but the payment of the Chomesh -- although it is obligatory -- is not required for atonement. However, this seems to contradict the Gemara in Zevachim (52a). In the Gemara there, Rav Ada bar Ahavah states that according to Rebbi Yishmael, the sprinkling of the Sheyarei ha'Dam (the leftover blood from a Korban after the Zerikas ha'Dam has been performed) is Me'akev the atonement of the Korban from taking effect. RASHI (DH Shirayim) explains that according to Rebbi Yishmael, although the sprinkling of the leftover blood does not attain atonement, the failure to sprinkle the leftover blood prevents atonement from taking effect. Rav Papa states that according to Rebbi Yishmael, the Mitzuy (squeezing out) of the blood of the Chatas ha'Of (the bird sin-offering) is Me'akev the atonement until it is performed. The RAMBAM (Hilchos Ma'aseh ha'Korbanos 7:7) rules that this is the Halachah.
According to the Gemara in Zevachim, it is possible that even something that does not provide atonement itself nevertheless may prevent atonement from taking effect. If this is true, why does the Gemara here assume that the Chomesh cannot prevent atonement? Although the verse says, "The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him," the Gemara can derive from here only that the atonement is achieved through the payment of the Keren (also alluded to by the word "Asham," as the Gemara explains) and through the offering of the ram as a Korban Asham. How does the Gemara know that the Chomesh, although it is not the atonement itself, does not prevent the atonement from taking effect when it is not paid?
ANSWER: The AVNEI NEZER (CM 84:10) answers that Rashi addresses this question when he writes in his commentary on the Mishnah (110a, DH Nasan ha'Keren) that the giving of the Chomesh is not Me'akev the offering of the Asham and "in the end he will give it." The Avnei Nezer explains that Rashi adds the words "in the end he will give it" based on the statement of Rava earlier (104a). Rava says that since the thief knew from whom he stole and admitted his theft, his admission is equivalent to saying to the owner that the money will remain in his hands temporarily. In other words, it is considered as though the thief is holding a Pikadon (deposit) for the owner.
Moreover, there is no requirement to travel to a distant land in order to give the Chomesh to the owner. (There is such a requirement for the return of the Keren.) It follows that this is also because the Chomesh which the thief is holding is considered a Pikadon which he is watching for the owner. Accordingly, while the verse states that the one must give the Keren and offer the Asham in order to achieve atonement since the actual giving of the Keren and offering of the Korban is the atonement, the Chomesh essentially is considered to have been given upon admission. As long as the thief indeed intends to give the Chomesh to the owner eventually (as Rashi writes, "in the end he will give it"), it is as if he has already returned the Chomesh. This is because the Chomesh is not what causes the atonement; it merely would prevent the atonement if it would not be "given" in some way to the victim. The fact that the Chomesh is already a Pikadon ensures that there is no prevention of the atonement from taking effect.
(See also the MAHARSHA to 110a, and the TOSFOS YOM TOV on Rashi's words, "in the end he will give it.") (D. BLOOM)
2) THE OWNER MAY COLLECT FROM THE SECOND THIEF EVEN IF HE DESPAIRED OF RECOVERING WHAT WAS STOLEN
QUESTION: Rav Chisda discusses a case in which the owner of a stolen object had not yet despaired (Meya'esh) of retrieving his stolen property, when a second thief stole the object from the first thief and consumed the object. Both thieves were caught. Rav Chisda rules that the owner may choose to collect the value of the stolen object from either thief. As long as the owner had no Ye'ush, the stolen object is considered in his domain. RASHI (DH b'Reshusei) explains that the second thief who consumed the stolen property is considered as though he stole it directly from the original owner.
Why does Rav Chisda say specifically that the owner did not have Ye'ush? Even if the owner did have Ye'ush, there is another reason for why he should be able to collect from the second thief. The Gemara earlier quotes the law of Rebbi Nasan (40b) that when one person owes money to a second person., and the second person owes money to a third, the third person may collect his money directly from the first. Similarly, in Rav Chisda's case, even after Ye'ush the owner should be able to collect from the second thief. Since the first thief owes the stolen object to the owner, and the second thief owes the object to the first, the owner should be able to collect directly from the second thief. Why does Rav Chisda make his law contingent on the fact that the owners had not yet been Meya'esh?
(a) The NIMUKEI YOSEF answers that while Rebbi Nasan's law indeed implies that the owner may collect from either thief even when he had Ye'ush, Rav Chisda's point is that when the owner collects from the second thief, he has the right to do so before Ye'ush because of the law of theft, and not merely because of the law of Rebbi Nasan.
Why is it significant to know the mechanism of how the money is collected by the owner? The Nimukei Yosef explains that there is a practical difference to how the money is collected. This difference exists in a case in which the second thief returned the object to the first thief, or if the first thief waived the debt that the second thief owed to him as a result of what he stole from him. In these cases, the owner may not collect from the second thief using Rebbi Nasan's law, since the second thief no longer owes anything to the first thief. However, if the owner may collect because of the law of theft, he still is able to collect from either thief despite the fact that the second thief already settled his "obligation" towards the first thief. However, the law of theft applies only before the Ye'ush of the owner. Rav Chisda therefore teaches that the owner has more rights to collect from the second thief before Ye'ush because he collects due to repayment of theft, and not just due to the law of Rebbi Nasan.
(b) The BACH explains at length that this answer is not consistent with the opinion of the TUR (CM 361), and he gives a different answer. He proposes that the law of Rebbi Nasan applies only when the object is still intact. However, if it was consumed, the owner may not claim it from the second thief. Rav Chisda discusses a case in which the second thief ate the object. In such a case, if the owner has Ye'ush, he no longer may claim the object due to the law of Rebbi Nasan.
(See the MACHANEH EFRAIM (Hilchos Gezeilah 8) who disagrees with the Bach and maintains that if the object is still intact, the second thief would be obligated to return it to the owner even without the law of Rebbi Nasan. This is because the Gemara (112a) says that if the object is in the same form now as it was in when it was stolen, the thief must return it.) (D. BLOOM)