87b----------------------------------------87b

1)GEZEL NOCHRI [Gezel :Nochri]

(a)Gemara

1.87b (Beraisa): The Torah discusses "b'Cherem Re'echa", but not in a Nochri's vineyard.

2.Question: According to the opinion that permits Gezel Nochri, what does the verse teach?

3.111b (Beraisa): "Re'acha" excludes an Amaleki (or any Nochri).

4.Question: "Achicha" excludes an Amaleki!

5.Answer: One verse permits withholding his wages, and the other permits stealing from him.

6.Bava Kama 113b (Beraisa - R. Yishmael): If a Yisrael and a Nochri [extortionist] came for judgment, If Torah law favors the Yisrael, we rule like Torah law. If Nochri law favors the Yisrael, we rule like Nochri law. If neither favors the Yisrael, we seek a ruse (to exempt the Yisrael);

7.R. Akiva says, we may not seek a ruse. This is not Kidush Hash-m (sanctification of His name)!

8.Inference: If not for Kidush Hash-m, we could use a ruse!

9.Question: One may not steal from Nochrim!

i.(Beraisa - R. Shimon citing R. Akiva): The law of a Yisrael slave sold to a Nochri teaches that one may not steal from Nochrim. "He will have redemption" - we may not forcibly take him without paying.

ii.Suggestion: Perhaps he may trick him!

iii.Rejection: "V'Chishev Im Konehu" - he will calculate with the buyer, i.e. precisely.

10.Answer (Rava): One may not steal from a Nochri, but one may use a ruse to evade paying a debt to a Nochri.

11.Question (Abaye): One must pay the proper redemption to a Nochri, even though this is like a debt!

12.Answer: Rava holds that a Yisrael slave is bodily owned by his master (for the period of service, so to forcibly take him is outright theft).

13.(Rav Huna): We learn from "you will consume all the Amim that Hash-m gives to you." You are permitted (to steal from them) only when you they are given into your hand.

14.(Rav Huna): One may not steal from a Nochri. We learn from "you will consume all those that Hash-m gives to you. You are permitted (to steal from them) only when you conquer them in war.

15.Rav Ashi was walking; he saw some grape clusters hanging on vines in an orchard. He told his servant 'see who owns them. If it is a Kusi, bring them to me. If it is a Yisrael, do not.'

16.The owner (a Kusi): May you steal from Kusim?!'

17.Rav Ashi: (I did not want to take for free.) A Kusi would accept money for them, but a Yisrael would not.

(b)Rishonim

1.Rif and Rosh (10:12): Gezel Nochri is forbidden.

2.Rosh: Rav Ashi intended to pay for the grapes from the beginning, for we do not find a Tana or Amora who permits Gezel or Geneivas Nochri.

3.Rambam (Hilchos Gezeilah 1:2): Mid'Oraisa, one may not steal any amount or be Oshek even a Nochri idolator. If one did, he must return it.

i.Question (Kesef Mishneh): It says "Lo Sa'asok Re'echa", to exclude a Nochri!

ii.Answer (Kesef Mishneh): The Rambam said 'forbidden', but did not say that there is a Lav for Gezel Nochri, for it is not mid'Oraisa.

iii.Shach (CM 359:2): The Rambam in Hilchos Geneivah (1:1. below) connotes that it is a Lav mid'Oraisa. Yam Shel Shlomo also says so, but concludes like Rashi, that it is only mid'Rabanan.

iv.Gra (Likutim on the Rambam, brought in Sedei Eliyahu Bava Kama 113b): An Aseh forbids Gezel Nochri, "you will consume all the Amim."

v.Radvaz (4:205): The Rambam holds that whenever there is a Lav to steal from a Yisrael, there is a Lav of Gezel Nochri. However, it is not "Lo Signov", for the Gemara needed to find sources to forbid Gezel Nochri. Also, the Tana who permits expounds the verses of R. Akiva and Rav Huna differently. We do not ask from Lo Signov. The Rambam did not distinguish, for in any case there are no lashes. Rather, one returns the theft.

4.Rambam (7:7): One who swore (falsely to deny owing) to a Nochri pays only principal without Chomesh, for it says "he denied his compatriot."

i.Magid Mishneh: This is a Beraisa (Toras Kohanim Parshasa 12 Perek 22).

5.Rambam (Hilchos Geneivah 1:1): The Lav of Geneivah applies to stealing from a Yisrael or Nochri.

6.Rambam (7:8): If one did business with a Yisrael or Nochri idolator and measured or weighed too little, he transgressed a Lav and must return it.

7.Rashi (Sanhedrin 57a DH Goi): Geneivah and Gezeilah of a Nochri is permitted. It says "Lo Sa'asok Re'echa", to exclude a Nochri. One opinion forbids mid'Rabanan, due to Chilul Hash-m.

(c)Poskim

1.Shulchan Aruch (CM 348:2): The Lav of Geneivah applies to stealing from a Yisrael or Nochri.

i.Yam Shel Shlomo (10:20): The Gemara said 'when they are given into your hand.' This does not mean that you conquered them, for R. Akiva expounds a verse (about such a case) to forbid! Also Tosfos (38a DH Omad) said that we understand damages (a Yisrael is exempt if his animal damaged a Nochri's, but vice-versa the Nochri is liable) according to the opinion that forbids Gezel Nochri, even though in any case when we conquered them! Rather, they are given into your hand, i.e. Hash-m commanded to fight them, or (in an optional war) He permitted us to fight them. After we conquered an Umah not from the seven, one may not steal from them. The Rambam, Semag and Tur say that Geneivah and Gezeilah from a Nochri are like from a Yisrael. This is astounding. The Torah was given to Yisrael! The verse we expounded is a mere Asmachta. Even if you will say that it is a true Drashah, it is a mere Isur, but it is not part of the Lav of theft. Rashi (Sanhedrin 57a) explicitly says that it is only mid'Rabanan, due to Chilul Hash-m. I disagree. Even without Chilul Hash-m, one must distance from what is repulsive, consume his own, and not accustom himself to theft.

ii.Rebuttal #1 (R. Akiva Eiger, 369:1): Surely R. Akiva forbids mid'Oraisa. The Gemara (Bava Metzia 87b) said 'this Drashah is like the opinion that forbids Gezel Nochri. How does the other opinion expound? This shows that they argue mid'Oraisa! Also, the Gemara inferred that R. Akiva forbids only due to Chilul Hash-m, and rejected this!

iii.Rebuttal #2 (Chacham Tzvi 26): Yes, the Torah was given to Yisrael. Why does this connote that it permits Gezel Nochri? Are Nochrim commanded to allow Yisre'elim to steal from them? We are commanded not to act lowly! One may not steal in order to pay Kefel, i.e. to help the victim, lest he accustom himself to steal. Explicit Lavim forbid subjugating or selling a Nochris (Eshes Yefas To'ar). When we besiege a Nochri city, we must leave one direction open for people to flee. Some say that the Torah forbids paining animals. It explicitly commands about Oso v'Es Beno and Shilu'ach ha'Kan, and not to wastefully destroy trees. All this is to make us acquire good Midos. How can the Maharshal explain why it must say "Re'echa" according to the one who permits Gezel Nochri?

iv.Defense (Panim Me'iros 1:27): The Maharshal means that the Torah does not punish Yisrael for transgressions against Nochrim unless it specifies. The Kesef Mishneh holds that "Re'echa" is needed so that we will not say that an Isur Aseh forbids Gezel Nochri; all Tana'im forbid mid'Rabanan. Really, the Rambam forbids mid'Oraisa.

v.Gra (8): Bava Metzia 87b alludes to the opinion that permits Gezel Nochri. Both opinions in Bava Kama forbid! Rather, it is the Tana in Bava Metzia 111b. Even he forbids mid'Oraisa due to Chilul Hash-m! A Tosefta (Bava Metzia 10:8) obligates returning Gezel Nochri, and says that it is more severe than Gezel Yisrael, due to Chilul Hash-m.

2.Shulchan Aruch (359:1): One may not steal or be Oshek any amount, from a Yisrael or Nochri.

i.Mishbetzos Zahav (604 Sof 1): The law of Chamas Nochri (forcing him to sell It) requires investigation

See also:

MAY ONE SWINDLE A NOCHRI? (Bava Kama 113)

OTHER D.A.F. RESOURCES ON THIS DAF