Bava Kamma 66
״הֵם״ וְלֹא וַלְדוֹתֵיהֶם הוּא דַּאֲתָא. וּבֵית הִלֵּל – תַּרְתֵּי שְׁמַעִית מִינַּהּ: ״הֵם״ וְלֹא שִׁינּוּיֵהֶם, ״הֵם״ וְלֹא וַלְדוֹתֵיהֶם. וּבֵית הִלֵּל, הָכְתִיב ״גַּם״! ״גַּם״ לְבֵית הִלֵּל קַשְׁיָא.
“these,” comes to teach that this halakha applies only to the animals given as payment to the prostitute but not to their offspring. The Gemara asks: And from where do Beit Hillel derive this halakha? They would say that one should conclude two conclusions from this term: “These” items are disqualified, but not when they are in their changed form, and “these” are disqualified, but not their offspring. The Gemara asks: And according to the opinion of Beit Hillel, isn’t it written “even”? Since Beit Hillel reject the halakha that Beit Shammai derive from this term, what do they learn from it? The Gemara states: Indeed, the word “even” is difficult according to the opinion of Beit Hillel.
עַד כָּאן לָא פְּלִיגִי, אֶלָּא דְּמָר סָבַר: שִׁינּוּי קוֹנֶה, וּמַר סָבַר: אֵין שִׁינּוּי קוֹנֶה; אֲבָל לְעִנְיַן שַׁלּוֹמֵי – כּוּלֵּי עָלְמָא כִּדְמֵעִיקָּרָא מְשַׁלֵּם, דְּקָתָנֵי: מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל וְתַשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה כְּעֵין שֶׁגָּנַב.
In any event, they disagree only with regard to this particular issue: One Sage, Beit Hillel, holds that a physical change in a stolen item causes the thief to acquire it, and one Sage, Beit Shammai, holds that a physical change in a stolen item does not cause the thief to acquire it. But with regard to the payment of the thief, everyone agrees that he pays according to the initial value of the item, at the time of the theft, as it teaches in the baraita cited above: He pays the double payment and the fourfold or fivefold payment according to the animal’s value as of the time when he stole it.
לֵימָא תֶּיהְוֵי תְּיוּבְתָּא דְּרַב, דְּאָמַר רַב: קֶרֶן – כְּעֵין שֶׁגָּנַב מְשַׁלֵּם, תַּשְׁלוּמֵי כֶפֶל וְתַשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה – כִּשְׁעַת הַעֲמָדָה בַּדִּין? אָמַר רָבָא: טְלָאִים – כִּדְמֵעִיקָּרָא, דָּמִים – כְּשֶׁל עַכְשָׁיו.
The Gemara suggests: Shall we say that this baraita constitutes a conclusive refutation of the opinion of Rav? As Rav says: When a thief makes his payments, he pays the principal according to the value as of the time when he stole it, whereas the double payment and the fourfold or fivefold payment are calculated according to the value at the time of standing trial. Rava said in resolution of this difficulty: If one stole lambs that subsequently became rams or were fattened, he pays the double payment and the fourfold or fivefold payment according to the initial state of the animal, as claimed by both Beit Shammai and Beit Hillel. If there was a change in the animal’s value due to fluctuation of the monetary value of animals, he pays according to the animal’s worth now, at the time of standing trial.
אָמַר רַבָּה: שִׁינּוּי קוֹנֶה – כְּתִיבָא וּתְנֵינָא. כְּתִיבָא – ״וְהֵשִׁיב אֶת הַגְּזֵלָה אֲשֶׁר גָּזָל״, מָה תַּלְמוּד לוֹמַר ״אֲשֶׁר גָּזָל״? אִם כְּעֵין שֶׁגָּזַל – יַחֲזִיר, וְאִם לָאו – דָּמִים בְּעָלְמָא בָּעֵי שַׁלּוֹמֵי.
§ Rabba said: The principle that a change in a stolen item causes the thief to acquire it is written in the Torah, and we learned it in a mishna as well. It is written in the Torah: “Then it shall be, if he has sinned, and is guilty, that he shall restore the item that he robbed” (Leviticus 5:23). What is the meaning when the verse states the seemingly superfluous phrase “that he robbed”? This serves to teach that if the item is the same as it was when he stole it, he must return the stolen item itself. But if it is not the same as it was then, he is required to pay only money, while the stolen item remains his to keep.
תְּנֵינָא – הַגּוֹזֵל עֵצִים וַעֲשָׂאָן כֵּלִים, צֶמֶר וַעֲשָׂאָן בְּגָדִים – מְשַׁלֵּם כִּשְׁעַת הַגְּזֵילָה.
We learned this halakha in a mishna as well, as it is taught (93b): In the case of one who robs another of wood and fashions it into vessels, or one who robs another of wool and fashions it into garments, he pays the robbery victim according to the value of the goods at the time of the robbery, and keeps the altered materials for himself.
אִי נָמֵי – לֹא הִסְפִּיק לִיתְּנוֹ לוֹ עַד שֶׁצְּבָעוֹ, פָּטוּר. אַלְמָא שִׁינּוּי קוֹנֶה.
Alternatively, another mishna can serve as the source for this principle (Ḥullin 135a): If one did not manage to give the first of the sheared wool of his sheep to a priest until after he dyed it (see Deuteronomy 18:4), he is exempt from giving it to the priest. This mishna indicates that an item that has undergone a change is no longer considered the same item as it had been. Apparently, a physical change in a stolen item causes the thief to acquire it.
יֵאוּשׁ – אָמְרִי רַבָּנַן דְּנִיקְנֵי, מִיהוּ לָא יָדְעִינַן אִי דְּאוֹרָיְיתָא אִי דְּרַבָּנַן.
§ Rabba continues to discuss the ways in which a thief acquires ownership of a stolen item: With regard to the owner’s despair over ever recovering the stolen item, the Sages say that this too causes the thief to acquire the stolen item. However, we do not know if this halakha applies by Torah law or by rabbinic law.
אִי דְּאוֹרָיְיתָא – מִידֵּי דַּהֲוָה אַמּוֹצֵא אֲבֵידָה; מוֹצֵא אֲבֵידָה לָאו כֵּיוָן דְּמִיָּיאַשׁ מָרַהּ מִינַּהּ מִקַּמֵּי דְּתֵיתֵי לִידֵיהּ, קָנֵי לֵיהּ? הַאי נָמֵי, כֵּיוָן דִּמְיָיאֵשׁ מָרַהּ, קָנֵי לֵיהּ. אַלְמָא קָנֵי.
Rabba elaborates on the two possibilities he has just mentioned: If it applies by Torah law, this is just as it is with regard to one who finds a lost item. Is it not the case with regard to one who finds a lost item that once the owner of the item despairs of recovering it, before the item came into the finder’s possession, the finder acquires it and may keep it for himself? The same principle applies to this thief as well: Once the owner of the item despairs of recovering it, the thief acquires it for himself and need no longer return it. Apparently, then, the despair of the owner causes the thief to acquire the stolen item.
אוֹ דִלְמָא לָא דָּמְיָא לַאֲבֵידָה, אֲבֵידָה הוּא דְּכִי אֲתַאי לִידֵיהּ – בְּהֶתֵּירָא אֲתַאי לִידֵיהּ; אֲבָל הַאי, כֵּיוָן דִּבְאִיסּוּרָא אֲתַאי לִידֵיהּ – מִדְּרַבָּנַן הוּא;
Or perhaps the case of a stolen item is not comparable to the case of a lost item, as it is only with regard to a lost item that the owner’s despair enables the finder to acquire the item, because the item came into his possession in a permitted manner. But in this case of the thief, since the item came into his possession in a prohibited manner, this case cannot be derived from the halakha of a lost item. If so, the ruling that despair effects acquisition in a case of theft applies not by Torah law but by rabbinic law.
דַּאֲמוּר רַבָּנַן נִיקְנֵי, מִפְּנֵי תַּקָּנַת הַשָּׁבִים.
Why would this halakha have been instituted by rabbinic law? As, the Sages said that a thief should acquire the stolen item in this manner, due to an ordinance instituted for the penitent. To encourage thieves to repent and repay their victims, the Sages instituted that they need not return the stolen item after the owner despairs of recovering it. Rather, they can reimburse the owner for the monetary value of the item.
וְרַב יוֹסֵף אָמַר: יֵאוּשׁ אֵינוֹ קוֹנֶה, וַאֲפִילּוּ מִדְּרַבָּנַן.
And Rav Yosef says: Despair on the part of the owner over the possibility of recovering his item does not cause the thief to acquire that item at all, and this is the halakha even by rabbinic law.
אֵיתִיבֵיהּ רַב יוֹסֵף לְרַבָּה: גָּזַל חָמֵץ וְעָבַר עָלָיו הַפֶּסַח,
Rav Yosef raised an objection to Rabba from a mishna (96b): If one robbed another of leavened bread and Passover elapsed in the meantime, so that deriving benefit from it is prohibited,
אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״. וְהַאי, כֵּיוָן דִּמְטָא עִידָּן אִיסּוּרָא – וַדַּאי מִיָּיאַשׁ; וְאִי סָלְקָא דַעְתָּךְ יֵאוּשׁ קוֹנֶה, אַמַּאי אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״? דְּמֵי מְעַלְּיָא בָּעֵי שַׁלּוֹמֵי לֵיהּ!
the robber may nonetheless return the worthless bread to the owner and say to him: That which is yours is before you, and no compensation is required. Rav Yosef states his objection: But in this case, once the time of the prohibition of leavened bread arrives, the owner certainly despairs of recovering his now-worthless bread. And if it enters your mind to say that the owner’s despair causes the robber to acquire the stolen item, why can he say to him: That which is yours is before you? He should be required to pay the owner full-fledged money rather than return the worthless food, as the bread now belongs to the robber.
אֲמַר לֵיהּ: כִּי קָאָמֵינָא אֲנָא – זֶה מִתְיָיאֵשׁ וְזֶה רוֹצֶה לִקְנוֹת; הַאי – זֶה מִתְיָיאֵשׁ וְזֶה אֵינוֹ רוֹצֶה לִקְנוֹת.
Rava said to him in response: When I say that the thief acquires the stolen item upon the owner’s despair of recovery it is when this owner despairs, and that thief wants to acquire the item. In this case, this one despairs but that one does not wish to acquire the worthless bread.
אֵיתִיבֵיהּ אַבָּיֵי לְרַבָּה: ״קׇרְבָּנוֹ״ – וְלֹא הַגָּזוּל. הֵיכִי דָמֵי? אִילֵּימָא לִפְנֵי יֵאוּשׁ, לְמָה לִי קְרָא? פְּשִׁיטָא!
Abaye raised an objection to Rabba from a baraita. The verse: “If his offering is a burnt-offering of the herd” (Leviticus 1:3), indicates that one’s offering must be “his offering,” but not an animal stolen from another. What are the circumstances of the case referred to by the baraita? If we say it is dealing with a stolen animal that the robber consecrates and sacrificed before the owner’s despair of recovery, why do I need a verse to teach this? It is obvious that this is disqualified, as one cannot even consecrate an animal that does not belong to him.
אֶלָּא לָאו לְאַחַר יֵאוּשׁ? שְׁמַע מִינַּהּ יֵאוּשׁ לָא קָנֵי!
Rather, is it not referring to one who seeks to consecrate and sacrifice a stolen animal after the owner’s despair? And yet the baraita teaches that the animal cannot be consecrated by the thief. Conclude from the baraita that the owner’s despair of recovering a stolen item does not cause the thief to acquire it, as if it belonged to him he would be able to consecrate and sacrifice it.
אֲמַר לֵיהּ רָבָא: וְלִיטַעְמָיךְ, הָא דְּתַנְיָא: ״מִשְׁכָּבוֹ״ – וְלֹא הַגָּזוּל,
Rava said to Abaye in refutation of this proof: And according to your reasoning, consider that which is taught in a baraita: It is written with regard to a zav, a man who experiences a gonorrhea-like discharge: “And whoever touches his bedding shall wash his clothes and bathe himself in water and be impure until the evening” (Leviticus 15:5). This indicates that bedding on which a zav lies can become ritually impure and impart impurity only if it is “his bedding,” but not if it is stolen bedding.
הֵיכִי דָמֵי? אִילֵּימָא דִּגְזַל עַמְרָא וְעַבְדֵיהּ מִשְׁכָּב, מִי אִיכָּא לְמַאן דְּאָמַר שִׁינּוּי מַעֲשֶׂה לָא קָנֵי? אֶלָּא מַאי אִית לָךְ לְמֵימַר – דִּגְזַל מִשְׁכָּב דְּחַבְרֵיהּ; הָכִי נָמֵי – דִּגְזַל קׇרְבָּן דְּחַבְרֵיהּ.
What are the circumstances of the case discussed in the baraita? If we say that he robbed another of wool and made it into bedding, is there anyone who says that a physical change that results from an action performed to a stolen item does not cause the thief to acquire it? Rather, what have you to say? The baraita must be speaking of a case in which the zav robbed another of bedding. So too, the previous baraita is dealing with one who robbed another of an offering, already consecrated. The reason this animal does not atone for the thief is that a consecrated animal cannot be stolen and become the thief’s property, as it belongs to the Temple treasury wherever it is located.
אֵיתִיבֵיהּ אַבָּיֵי לְרַב יוֹסֵף: עוֹרוֹת שֶׁל בַּעַל הַבַּיִת – מַחְשָׁבָה מְטַמְּאָתָן.
Abaye raised an objection to Rav Yosef from a mishna (Kelim 26:8): With regard to hides belonging to a homeowner, one’s thought renders them susceptible to contracting ritual impurity. Hides and leather are susceptible to contracting impurity only if they are in a finished state. If a private individual uses a piece of hide or leather for a certain purpose, e.g., as a cot or a table top, and decides that this will be its fixed purpose, it is considered a finished product and is susceptible to contracting impurity.
וְשֶׁל עַבְּדָן – אֵין מַחְשָׁבָה מְטַמְּאָתָן.
But with regard to hides belonging to a leatherworker, thought does not render them susceptible to ritual impurity. Since this individual sells leather to others, when he uses a piece of leather for a household purpose and decides that this will be its fixed purpose, this is not considered a finished state, as he is likely to change his mind and sell the leather to one who will process it further and put it to a different use.
שֶׁל גַּנָּב – מַחְשָׁבָה מְטַמְּאָתָן, שֶׁל גַּזְלָן – אֵין מַחְשָׁבָה מְטַמְּאָתָן.
The mishna continues: If the hides are those of a thief, who has stolen them from another, the thief’s thought renders them susceptible to ritual impurity. If they are those of a robber his thought does not render them susceptible to ritual impurity, because he is not considered the owner of the hide. The difference is that unlike the case of a thief, who steals items stealthily, the identity of a robber, who takes the item openly, is known to the owner, and the owner harbors hope of finding the robber and getting the item back. Consequently, he does not despair of recovering his property.
רַבִּי שִׁמְעוֹן אוֹמֵר: חִילּוּף הַדְּבָרִים – שֶׁל גַּזְלָן מַחְשָׁבָה מְטַמְּאָתָן, וְשֶׁל גַּנָּב אֵין מַחְשָׁבָה מְטַמְּאָתָן; לְפִי שֶׁלֹּא נִתְיָיאֲשׁוּ הַבְּעָלִים.
Rabbi Shimon says that the matters are reversed: In the case of a robber, the robber’s thought renders them susceptible to ritual impurity. If the hides are those of a thief, thought does not render them susceptible to ritual impurity, because the owners have not despaired of recovering them and the thief has not acquired the hide. Rabbi Shimon’s reasoning is that a robber, who seizes items brazenly, is a more difficult criminal to apprehend and bring to justice than a thief.
וּשְׁמַע מִינַּהּ, יֵאוּשׁ קֹנֶה! אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁקִּיצְּעָן.
And although the two tanna’im of the mishna disagree as to which situation involves an owner’s despair of recovery, whether robbery or theft, in any event one can conclude from this mishna that the despair of the owner causes the thief or robber to acquire the item, as otherwise the perpetrator’s thoughts about the hide would have no effect on its status with regard to ritual impurity. Rav Yosef said to Abaye in response: With what are we dealing here in this mishna? It is a case where the thief or robber trimmed the leather by cutting it. Although trimming a piece of leather is not a sufficient change to constitute an act of acquisition by itself, it is effective in conjunction with the owner’s despair.
מַתְקֵיף לַהּ רַבָּה בַּר רַב חָנָן: וַהֲלֹא עִיצְבָּא שָׁנוּ כָּאן, וְעִיצְבָּא אֵין צְרִיכָה קִיצּוּעַ!
Rabba bar Rav Ḥanan objects to this answer: But is it not the case that they taught this mishna here with regard to a leather table top [itzba]? And a leather table top does not require trimming, either due to the fact that its edges are not seen or because it is merely ornamental. Since it does not require trimming, this action should not be considered an act of acquisition at all.
דִּתְנַן: כׇּל מָקוֹם שֶׁאֵין חֶסְרוֹן מְלָאכָה – מַחְשָׁבָה מְטַמְּאָתוֹ, יֵשׁ חֶסְרוֹן מְלָאכָה – אֵין מַחְשָׁבָה מְטַמְּאָתוֹ; חוּץ מִן הָעֵיצְבָא.
As we learned in the previous mishna (Kelim 26:7): Wherever there is no work lacking for an item to be considered finished, one’s thought renders it susceptible to ritual impurity; when there is still some work lacking for the item to be considered finished, thought does not render it susceptible to ritual impurity, except for the case of a leather table top. Although further work is required to smooth out the edges, one’s thought can render it susceptible to impurity because people do not care if this leather table top has uneven edges. It is with regard to this case of a table top that the mishna distinguishes between a homeowner and a leatherworker. Therefore, Rav Yosef’s explanation is rejected.
אֶלָּא אָמַר רָבָא: הַאי מִילְּתָא קְשִׁי בַּהּ רַבָּה לְרַב יוֹסֵף עֶשְׂרִין וְתַרְתֵּין שְׁנִין, וְלָא אִיפַּרְקָה עַד דְּיָתֵיב רַב יוֹסֵף בְּרֵישָׁא, וּפָרְקַהּ: שִׁינּוּי הַשֵּׁם – כְּשִׁינּוּי מַעֲשֶׂה דָּמֵי.
The Gemara suggests a different answer. Rather, Rava said that this matter was a difficulty posed by Rabba to Rav Yosef for twenty-two years, and it was not resolved until Rav Yosef sat as the head of the yeshiva and resolved it in the following manner: A change in name of an item, representing a change in status, is similar to a physical change brought about by an action.
שִׁינּוּי מַעֲשֶׂה מַאי טַעְמָא – הָתָם מֵעִיקָּרָא עֵצִים, הַשְׁתָּא כֵּלִים; שִׁינּוּי הַשֵּׁם נָמֵי – מֵעִיקָּרָא קָרוּ לֵיהּ ״מַשְׁכָּא״, וְהַשְׁתָּא ״אַבַּרְזִין״.
What is the reason that a physical change through an action causes the thief to acquire the item? It is because there the stolen items were initially just wood, and now they are vessels. The same can be said for a change in name as well: Initially they called it a hide, and now they call it a table top [abrazin].
וַהֲרֵי מָרִישׁ – דְּאִיכָּא שִׁינּוּי הַשֵּׁם, דְּמֵעִיקָּרָא ״כְּשׁוּרָא״ וְהַשְׁתָּא ״טְלָלָא״; וּתְנַן: עַל הַמָּרִישׁ הַגָּזוּל שֶׁבְּנָאוֹ בְּבִירָה שֶׁנּוֹטֵל דָּמָיו, מִפְּנֵי תַּקָּנַת הַשָּׁבִים.
The Gemara asks a question with regard to changes in name: But what about the case of a beam, where there is a change in name, as initially, when it was stolen, it was called a beam, and now, after it has been placed in a building, it is called a joist [telala], and yet we learned in a mishna (Gittin 55a): With regard to a stolen beam that a robber had built into a large building, the court ruled that the owner should receive its value in money rather than demand that the robber demolish the house to return the beam itself, because of an ordinance instituted for the penitent, i.e., to encourage robbers to admit their crime and reimburse the owner of the stolen item.
טַעְמָא מִפְּנֵי תַּקָּנַת הַשָּׁבִים,
This mishna indicates that the only reason the robber does not have to return the beam itself is because of this ordinance instituted for the penitent.
