BAVA KAMA - 066b – מרובה – פרק שביעי – בבא קמא, סו ע”ב

He may say to him: Here is yours before you.^[1]

אומר לו - To the one robbed.

הרי שלך לפניך - Intact, as it is, for it is a damage that is not recognizable.^[2]

And in this case, once the time of the prohibition arrived, the owner certainly despaired;^[3]

and if it enters your mind that despair acquires, why may he say to him, Here is yours before you? He should have to pay him proper money!

He said to him: When I said it, I meant where this one despairs and that one wishes to acquire; here, this one despairs but that one does not wish to acquire.

Abaye raised an objection to Rabbah: (Leviticus 1:3) “His offering” — and not a stolen one.^[4]

קרבנו - “If his offering is a burnt-offering” (Leviticus 1:3).

ולא הגזול - For a stolen animal does not come to be accepted. It now enters our mind that he stole an ordinary (chullin) animal and brought it; “what are the circumstances? If we say…” etc.

What are the circumstances?

If we say before despair — why do I need a verse? It is obvious!

Rather, is it not after despair? Conclude from it that despair does not acquire!

Rava said to him: And according to your reasoning, that which was taught (Leviticus 15:5): “His bedding” — and not a stolen one,^[5]

וליטעמיך - For it entered your mind that he stole chullin and consecrated them.

הא דתניא - Regarding a zav.

משכבו - “And a man who touches his bedding” (ibid. 15:5): a decree of Scripture, excluding stolen bedding, which does not become an av hatumah to make a person tamei.

what are the circumstances?

If we say that he stole wool and made it into bedding — is there anyone who says that a physical change^[6] does not acquire?

מי איכא למ"ד - Of these Amoraim, that a change does not acquire? They disagree only regarding despair.

Rather, what must you say? That he stole his fellow’s bedding;

so too, he stole his fellow’s offering.

דגזל קרבן דחבריה - That his fellow consecrated, and it is really before despair; and it was needed to teach that it is not accepted at all, even for the original owners, although there was no despair. Another version: he stole his fellow’s offering; therefore even after despair he does not acquire it, for an offering cannot be stolen: wherever it is, it is in the treasury of the Merciful One.

Abaye raised an objection to Rav Yosef: Hides of a householder — thought makes them susceptible to tumah,^[7]

מחשבה מטמאתן - A householder does not usually sell them, and makes of them beds, table-covers and leather mats; once he decides to use them for something fit for him without any work lacking, they become susceptible to tumah at once.

and those of a tanner — thought does not make them susceptible;

ושל עבדן - Who is accustomed to sell: his thought does not make them susceptible, for he is apt to change his mind and sell, and the buyer will make shoes of them, and their work for that is not yet finished.

those of a thief — thought makes them susceptible,^[8]

של גנב מחשבתו מטמאתם - For he acquired them through despair, since he holds that ordinary theft involves the owner’s despair, for the owner does not know whom to claim from.

those of a robber — thought does not make them susceptible.

ושל גזלן אין מחשבה מטמאתן - Even though he decided to use them for something that lacks no work, such as covering bundles on horses and mules, as is done with bear hides. What is the reason? Ordinary robbery involves no despair, for since the owner knows who took it, he goes and sues him in court.

Rabbi Shimon says: The matters are reversed — those of a robber, thought makes them susceptible, and those of a thief, thought does not make them susceptible, because the owners have not despaired.

חילוף הדברים - Ordinary robbery involves despair, for since he robbed him before his eyes, he is a violent man; but ordinary theft involves no despair, for the owner thinks: I will find the thief.

And conclude from it that despair acquires!

He said to him: With what are we dealing here? Where he trimmed them.^[9]

שקצען - Dromir in Old French. So there are two things here, a physical change and despair; but despair alone really does not acquire.

Rabbah bar Rav Chanan challenged it: But was it not a leather table-cover (itzba)^[10] that they taught here, and a table-cover does not need trimming!

והלא עיצבא שני כאן - That he decided to use them as an itzba — a leather cover on which one eats, a kind of table.

ועיצבא אינה צריכה קיצוע - For even without trimming it is susceptible, since it is fit for its use; trimming is only to beautify it. And how do we know that the Mishnah deals with an itzba? Because we learned regarding it, in Tractate Keilim: Wherever there is no work lacking etc.

As we learned: Wherever there is no work lacking, thought makes it susceptible; where work is lacking, thought does not make it susceptible — except for the table-cover.^[11]

חוץ מן העיצבא - That even though it lacks trimming, thought makes it susceptible.

Rather, Rava said: Rabbah raised this difficulty against Rav Yosef for twenty-two years, and it was not resolved until Rav Yosef sat at the head of the yeshivah and resolved it:

A change of name is like a physical change.^[12]

A physical change — what is the reason it acquires?

There, at first it was wood, and now it is vessels;

a change of name too: at first they called it a hide (mishka), and now a table-cover (avarzin).

אברזין - That is itzba in Aramaic. But despair alone does not acquire.

But what of a beam, where there is a change of name — at first a beam (kashura), and now a roof-joist (telala)^[13] —

דמעיקרא כשורא - Before it was set into the building.

והשתא טללא - A roof, after it was set into the mansion and a ceiling of planks and an upper story were laid on it.

and we learned: A stolen beam that he built into a mansion — he takes its value, because of the enactment for penitents.^[14]

על המריש - A beam; the Mishnah lists enactments one after another, in Tractate Gittin.

The reason is because of the enactment for penitents,^[15]

Tosfos

אילימא לפני יאוש ל"ל קרא פשיטא - For even if he consecrated them they are not holy: when one robbed and the owners have not despaired, neither of them can consecrate it.

שמע מינה דיאוש לא קני - For if it acquired, it would properly count as “his offering”, and it would not be disqualified as a mitzvah that comes through a transgression,^[16] since it became his before he consecrated it, as I will explain below (67a, s.v. Amar Ulla), with Hashem’s help. But if despair does not acquire, it is disqualified, and yet it is holy. And although he did not yet know the reason of change of name stated below — at first chullin and now hekdesh — nevertheless there are here despair and a change of domain in those offerings, since [the robber] is not responsible for them.

מי איכא למ"ד שינוי מעשה לא קני - He did not want to establish it according to Beis Shammai, who hold that a changed item stays as it was, even though there are also Tannaim who hold so, in Perek HaGozel Kamma (below, 93b); for the halachah follows Beis Hillel, that change acquires, and there too Rava rejected it, saying all those Tannaim could hold like Beis Hillel, and so he holds throughout the Gemara. Nor did he want to establish it as a change that can revert to its original state,^[17] about which there is an opinion that it does not acquire; for Rav Yosef disagrees with Rabbah only regarding despair alone, but regarding a physical change — even one that reverts to its original state, which Rabbah dealt with, as I explained above — he does not disagree with him.

דגזל משכב דחבריה - Rashi’s explanation implies that he means that complete bedding of his fellow, if he robbed it, does not become tamei as bedding, as a decree of Scripture. This is astonishing. And it is further difficult for the Rashbam: in Taharos (7:6), regarding thieves who entered a house, we learned: The beds and the seats are tahor, but if a Canaanite or a woman is with them, all is tamei — for perhaps she is a niddah, and a Canaanite is like a zav in every respect. This implies that one makes tamei bedding and a seat that are not his. However, this can be rejected: there it is rabbinic. And it is further difficult: there (in Toras Kohanim, Parashas Metzora) it brings on this the dispute of Rabbi Shimon and the Rabbis about a thief and a robber, stated nearby, and so it reads there: “His bedding” — and not the robbed one. I might think I exclude even the stolen one; the verse says “tamei”. [Rabbi Shimon says: “In his bedding” — and not the stolen one. I might think I exclude the robbed one; the verse says “tamei”.] They said to him: And what did you see to include this one and exclude that one? Since the verse included and excluded, I include those whose owners have despaired of it, etc. And since it brings on it the dispute of Rabbi Shimon and the Rabbis, this implies that the reason is that thought does not make it susceptible, like the case nearby, where the designation of a robber is no designation. And the Ri explains: “he robbed his fellow’s bedding” means that he robbed hides of a householder, which lack only designation and need no repair, lacking nothing but thought. This is properly like “he robbed his fellow’s offering”: had he robbed an animal of chullin, which lacks sanctity, that would be like lacking a complete action, like wool that he made into bedding. But if he robbed or stole his fellow’s complete bedding, it is tamei as bedding according to all. And although this “his bedding, and not the robbed one” deals with before despair, while “his offering, and not the robbed one” deals even with after despair, we need not be particular, although they are not alike.

דגזל קרבן דחבריה - Astonishing: why do I need a verse? If it is a chatas — even he himself, if he ate chelev yesterday and set aside an offering, gains no atonement with that offering for chelev that he ate today. And if it is a burnt-offering or a shelamim — we say in Pesachim (89b): One who sells his burnt-offering or his shelamim has done nothing. It would have seemed right to establish it as a Pesach-offering, for one may register others with him on his Pesach and sell it to them, as is proven there. But it is difficult, for this verse is written about a burnt-offering — unless one establishes it as a Pesach by the rule of “if it is not needed for its own topic”. And one cannot say that the verse comes to disqualify the offering, for we say below (76a), regarding a thief, that if he slaughtered unblemished animals inside on behalf of the owners, the principal has returned to the owners.

כגון שקיצען - And it is effective together with despair; but alone it does not acquire, for it is not a physical change.

ועיצבא אינה צריכה קיצוע - However, where he thought to trim it, we say in Perek Dam Chatas (Zevachim 94a) that it is tahor until he trims it. Nevertheless the inference here is sound: since it is fit for use without trimming, its trimming does not count as a physical change at all.

כל שאין בו חסרון מלאכה מחשבה מטמאתה - And if you ask: apart from the case of the itzba, why did he not challenge him from here, that thought is effective, so despair acquires? One can answer: perhaps this case here deals with a householder.

שינוי השם כשינוי מעשה דמי - Not exactly like a physical change, for a physical change alone acquires, as is proven above, and below (68a), regarding one who stole and slaughtered and another came and stole it, where it challenges: And a physical change — is there anyone who says it does not acquire? But a change of name alone does not acquire without despair or a physical change.

Notes

1. 1. The Mishnah (Bava Kamma 96b): one who robbed leavened bread and Pesach passed over it may return it as it is, saying “Here is yours before you”, although after Pesach it is forbidden for benefit and worthless. Rav Yosef cited it against Rabbah at the end of 66a.
2. 2. A damage that is not recognizable (hezek she’eino nikar) is a loss that cannot be seen on the object itself, like chametz that has become forbidden. By Torah law such damage need not be paid, so the robber may return the object as it is.
3. 3. Yi’ush (despair) is the owner’s giving up hope of recovering his property. Rabbah holds (66a) that despair lets the robber acquire the item, so that he owes only its value; Rav Yosef holds that it does not acquire, even by rabbinic law.
4. 4. The beraisa reads “his offering” to mean that an offering must belong to the one who brings it, so a stolen animal is not accepted. Abaye argues that this must refer to an animal stolen after despair.
5. 5. A zav (a man with a flux) makes the bedding he lies on an av hatumah, a primary source of impurity that makes a person who touches it tamei. The beraisa reads “his bedding” to exclude bedding that was stolen.
6. 6. Shinuy maaseh (a physical change) is a change made in a stolen item by an action, like wool made into bedding. All agree that it lets the robber acquire the item, so he pays its value instead of returning it.
7. 7. Raw hides are not yet a vessel and cannot become tamei. When the owner decides to use a hide as it is, for example as a table-cover, that decision (machshavah) makes it a finished item, susceptible to tumah. The Mishnah is in Tractate Keilim, chapter 26.
8. 8. A ganav (thief) takes in secret; a gazlan (robber) takes openly, by force. The first Tanna holds that the owner despairs after a theft and not after a robbery, so only the thief’s thought counts; Rabbi Shimon reverses it.
9. 9. Kitzua (trimming) is cutting the edges of the hide to shape. Rav Yosef says that this slight change, together with despair, lets the thief or robber acquire it.
10. 10. An itzba is a leather cover spread out as a table to eat on (Rashi). Its trimming is only for looks, so it is usable without it.
11. 11. Chisaron melachah (work lacking): an item that still needs work is not yet a finished vessel, so thought alone cannot make it susceptible to tumah. The itzba is the exception, since its trimming is only cosmetic.
12. 12. Shinuy hashem (a change of name): the item is now called by a new name, as a new thing. Rav Yosef holds that this is like a physical change, so the hide that became an avarzin was acquired.
13. 13. A mrish (beam) is called kashura before it is built in; once set into the building it is called telala, a roof-joist. So it too has a change of name.
14. 14. Takanas hashavim (the enactment for penitents): the Sages ruled that a robber who built a stolen beam into a building pays its value and need not tear the building down, so that robbers are not deterred from repenting. The Mishnah is in Gittin 55a.
15. 15. The clause gives the Mishnah’s reason: the robber’s right to pay the beam’s value rests on the Sages’ enactment for penitents, a concession made to encourage repentance.
16. 16. A mitzvah that comes through a transgression (mitzvah haba’ah ba’aveirah) is not acceptable, so an offering obtained by robbery is disqualified. Tosfos says that if despair acquired, the animal would already have been the robber’s before he consecrated it.
17. 17. A change that can revert to its original state (shinuy hachozer liveriyaso) is one that can be undone, like a metal ingot that can be melted back down. Some hold that such a change does not let the robber acquire the item.