Bava Kamma 94
דְּמֵאַסְפּוֹרַק: בֵּית שַׁמַּאי אוֹסְרִין, וּבֵית הִלֵּל מַתִּירִין. מַאי טַעְמֵיהּ דְּבֵית שַׁמַּאי? אָמַר קְרָא: ״גַּם שְׁנֵיהֶם״ – לְרַבּוֹת שִׁינּוּיֵיהֶם. וּבֵית הִלֵּל – אָמַר קְרָא: ״הֵם״ – וְלֹא שִׁינּוּיֵיהֶם.
of Asporak: Beit Shammai prohibit sacrificing these items and Beit Hillel permit doing so. The Gemara clarifies: What is the reason of Beit Shammai? The Gemara answers: The verse states: “You shall not bring the hire of a harlot or the price of a dog into the House of the Lord your God for any vow; for even both of these are an abomination unto the Lord your God” (Deuteronomy 23:19). The word “even” is an amplification, which serves to include in the prohibition these items in their changed form. And what is the reason of Beit Hillel? The verse states “these” to emphasize that the prohibition applies only to these items in their initial form, but not in their changed form.
וּבֵית שַׁמַּאי, הָא כְּתִיב ״הֵם״! הָהוּא מִיבְּעֵי לֵיהּ ״הֵם״ – וְלֹא וַלְדוֹתֵיהֶם. וּבֵית הִלֵּל – תַּרְתֵּי שָׁמְעַתְּ מִינַּהּ. ״הֵם״ וְלֹא שִׁינּוּיֵיהֶם, ״הֵם״ וְלֹא וַלְדוֹתֵיהֶם.
The Gemara asks: And according to Beit Shammai, isn’t the word “these” written in the verse, indicating an exclusion? The Gemara responds: Beit Shammai requires that word to indicate that “these” items are forbidden, but not the offspring of animals given as payment to the prostitute. The Gemara asks: And according to Beit Hillel, what is the source of that halakha? The Gemara answers: According to Beit Hillel, you learn two halakhot from this word, as follows: “These” items are forbidden in their initial form but not in their changed form, and “these” items are forbidden but not their offspring.
וּבֵית הִלֵּל נָמֵי, הָכְתִיב: ״גַּם״! ״גַּם״ לְבֵית הִלֵּל קַשְׁיָא.
The Gemara asks: And according to Beit Hillel as well, isn’t the word “even” written in the verse, indicating an amplification? The Gemara answers: Indeed, the word “even” is difficult for Beit Hillel. It is not clear how they would interpret that word.
רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב מַאי הִיא?
The Gemara continues: What is the source that indicates that Rabbi Eliezer ben Ya’akov holds that an item that undergoes a change is still considered to have the same status that it had before the change?
דְּתַנְיָא, רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: הֲרֵי שֶׁגָּזַל סְאָה שֶׁל חִטִּין, טְחָנָהּ, לָשָׁהּ וַאֲפָאָהּ, וְהִפְרִישׁ מִמֶּנָּה חַלָּה, כֵּיצַד מְבָרֵךְ? אֵין זֶה מְבָרֵךְ אֶלָּא מְנָאֵץ! וְעַל זֶה נֶאֱמַר: ״בֹּצֵעַ בֵּרֵךְ נִאֵץ ה׳״.
The Gemara answers: As it is taught in a baraita that Rabbi Eliezer ben Ya’akov says: In the case of one who robbed another of a se’a of wheat, then ground it, kneaded it, and baked it, and he then separated ḥalla from it, i.e., he separated the portion of the dough that one is required to separate and then give to a priest, how can he recite the blessing over the separation of ḥalla? This individual is not reciting a blessing, but rather he is blaspheming. And with regard to this it is stated: “The robber who recites a blessing blasphemes the Lord” (Psalms 10:3), which is referring to a robber who recites a blessing upon performing a mitzva with an item he stole. According to Rabbi Eliezer ben Ya’akov, although this wheat has been significantly changed, it is still considered a stolen item.
רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר מַאי הִיא? דְּתַנְיָא, כְּלָל זֶה אָמַר רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר: כׇּל שֶׁבַח שֶׁהִשְׁבִּיחַ גַּזְלָן – יָדוֹ עַל הָעֶלְיוֹנָה. רָצָה נוֹטֵל שִׁבְחוֹ, רָצָה אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״.
The Gemara continues: What is the source that indicates that Rabbi Shimon ben Elazar holds that an item that undergoes a change is still considered to have the same status that it had before the change? As it is taught in a baraita (Tosefta 10:2) that Rabbi Shimon ben Elazar stated this principle: With regard to any enhancement to the stolen animal in that it was enhanced by the actions of the robber, he has the advantage when repaying the owner. If he desires, he takes his enhancement, i.e., when he returns the animal, the robbery victim must pay the difference between its value at the time of the robbery and its current value, and if he desires he can return it to the owner and say to him: That which is yours is before you.
מַאי קָאָמַר? אָמַר רַב שֵׁשֶׁת, הָכִי קָאָמַר: הִשְׁבִּיחַ – נוֹטֵל שִׁבְחוֹ. כָּחַשׁ – אוֹמֵר לוֹ: ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״, דְּשִׁינּוּי בִּמְקוֹמוֹ עוֹמֵד.
The Gemara expresses surprise: What is he saying? If the robber has a right to demand compensation for the enhancement to the animal, why would he ever return it without stating this demand? Rav Sheshet said that this is what he is saying: If the robber enhanced it, he takes his enhancement. If the animal was weakened, the robber says to him: That which is yours is before you, and no further compensation is required. This is because despite a change, the changed item remains in its place. Since the robber has not acquired it, he simply returns the item to the robbery victim.
אִי הָכִי, אֲפִילּוּ הִשְׁבִּיחַ נָמֵי! אָמְרִי: מִפְּנֵי תַּקָּנַת הַשָּׁבִים.
The Gemara asks: If so, i.e., if the robber has not acquired it, then even if he enhanced it that should be the halakha as well. The item should still belong to the robbery victim and the robber should not be entitled to compensation. The Sages say in response: The fact that the robber has a right to demand compensation for the enhancement is due to an ordinance instituted for the penitent. In order to ease the burden of one who desires to repent, the Sages instituted that the robber be reimbursed for the increase in the value of the animal. Otherwise, a robber might refrain from returning a stolen item.
רַבִּי יִשְׁמָעֵאל מַאי הִיא? דְּתַנְיָא: מִצְוַת פֵּאָה – לְהַפְרִישׁ מִן הַקָּמָה. לֹא הִפְרִישׁ מִן הַקָּמָה – מַפְרִישׁ מִן הָעוֹמָרִים. לֹא הִפְרִישׁ מִן הָעוֹמָרִים – מַפְרִישׁ מִן הַכְּרִי עַד שֶׁלֹּא מֵרְחוֹ.
The Gemara continues: What is the source that indicates that Rabbi Yishmael holds that an item that undergoes a change is still considered to have the same status that it had before the change? The Gemara answers: As it is taught in a baraita: The ideal way to fulfill the mitzva of produce in the corner of the field, which is given to the poor [pe’a], is to separate it from the standing grain, i.e., grain that has not been harvested. If one did not separate it from the standing grain, he separates it from the sheaves of grain that have already been harvested. If he did not separate it from the sheaves, he separates it from the pile of grain, as long as he has not yet smoothed the pile.
מֵרְחוֹ – מְעַשֵּׂר וְנוֹתֵן לוֹ. מִשּׁוּם רַבִּי יִשְׁמָעֵאל אָמְרוּ: אַף מַפְרִישׁ מִן הָעִיסָּה וְנוֹתֵן לוֹ.
If he smoothed the pile of grain, activating the obligation to tithe the produce, he first tithes the grain and then gives a portion of the tithed produce to the poor as pe’a, so that the poor will not have to tithe what they receive. Additionally, they said in the name of Rabbi Yishmael: If he did not separate pe’a during any of the aforementioned stages and he made a dough from the grain, he separates pe’a even from the dough and gives it to the poor. This indicates that even if the grain was changed, one is not exempt from the obligation of pe’a. The Gemara has now clarified the sources Abaye alluded to when he listed all the tanna’im who hold that despite a change, the changed item remains in its place.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: אִיכְּפוּל כֹּל הָנֵי תַּנָּאֵי לְאַשְׁמוֹעִינַן כְּבֵית שַׁמַּאי?! אֲמַר לֵיהּ, הָכִי קָאָמְרִי: לֹא נֶחְלְקוּ בֵּית שַׁמַּאי וּבֵית הִלֵּל בְּדָבָר זֶה.
Rav Pappa said to Abaye: Did all these tanna’im go to so much trouble in an effort [ikhpal] to teach us a halakha in accordance with the opinion of Beit Shammai, which is presumably not accepted as normative? Abaye said to Rav Pappa: This is what they are saying: Beit Shammai and Beit Hillel did not engage in a dispute with regard to this matter. All of the aforementioned tanna’im hold that even Beit Hillel agree that a change in the form of an item does not impact its status.
אָמַר רָבָא: מִמַּאי? דִּלְמָא עַד כָּאן לָא קָאָמַר רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה הָתָם, אֶלָּא בְּצֶבַע – הוֹאִיל וְיָכוֹל לְהַעֲבִירוֹ עַל יְדֵי צָפוֹן;
Rava said: From where can it be proven that all of the aforementioned tanna’im hold that an item that undergoes a change is still considered to have the same status that it had before the change? One can say that the reasons for their statements are due to other factors. Perhaps Rabbi Shimon ben Yehuda states his opinion, that it is not a significant change, there, in the case of the first of the sheared wool, only with regard to dye, which is a reversible change, since one is able to remove it with soap.
וְעַד כָּאן לָא קָאָמְרִי בֵּית שַׁמַּאי הָתָם, אֶלָּא לְגָבוֹהַּ – מִשּׁוּם דְּאִימְּאִיס;
And perhaps Beit Shammai state their opinion there, in the case of a harlot, only with regard to an offering to the Most High, because of the fact that the item has become repugnant, in being used as payment for the services of a prostitute, and therefore it cannot be used for an offering even if its form has changed.
וְעַד כָּאן לָא קָאָמַר רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב הָתָם, אֶלָּא לְעִנְיַן בְּרָכָה – מִשּׁוּם דְּהָוֵה לֵיהּ מִצְוָה הַבָּאָה בַּעֲבֵירָה;
And perhaps Rabbi Eliezer ben Ya’akov states his opinion there, where one robbed another of wheat, only with regard to a blessing, because this is a mitzva that is performed through commission of a transgression, but this does not indicate that a change is insignificant with regard to other matters.
וְעַד כָּאן לָא קָאָמַר רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר הָתָם אֶלָּא בְּהַכְחָשָׁה דְּהָדַר;
And perhaps Rabbi Shimon ben Elazar states his opinion there, where the condition of the animal changed, only with regard to weakening of the animal that is reversible. Since the animal’s value can be restored by fattening it, the weakening is not deemed a significant change.
וְעַד כָּאן לָא קָאָמַר רַבִּי יִשְׁמָעֵאל הָתָם, אֶלָּא לְעִנְיַן פֵּאָה – מִשּׁוּם דִּכְתִיב ״תַּעֲזֹב״ יַתִּירָא! וְכִי תֵּימָא לִיגְמַר מִינֵּיהּ, מַתְּנוֹת עֲנִיִּים שָׁאנֵי!
And perhaps Rabbi Yishmael states his opinion there, where one separated pe’a at a late stage, only with regard to pe’a, because it is written: “You shall leave them for the poor” an additional time. It is mentioned twice, in Leviticus 19:10 and Leviticus 23:22. One of these terms is superfluous, indicating that pe’a must be given to the poor under all circumstances, even if the grain was changed and made into dough. And if you would say: Let us derive from pe’a that in other halakhic domains the status of an item is not affected by its undergoing a change, pe’a cannot function as a source because gifts to the poor are different from other halakhot.
כִּדְבָעֵי רַבִּי יוֹנָתָן – דְּבָעֵי רַבִּי יוֹנָתָן: מַאי טַעְמָא דְּרַבִּי יִשְׁמָעֵאל – מִשּׁוּם דְּקָסָבַר שִׁינּוּי אֵינוֹ קוֹנֶה? אוֹ דִלְמָא, בְּעָלְמָא קָסָבַר שִׁינּוּי קוֹנֶה; וְהָכָא מִשּׁוּם דִּכְתִיב ״תַּעֲזֹב״ יַתִּירָא?
The Gemara notes: Rava’s claim that no definitive conclusion with regard to the opinion of Rabbi Yishmael concerning a changed item is supported by the statement of another amora is like the dilemma raised by Rabbi Yonatan, as Rabbi Yonatan raises a dilemma: What is the reason for the ruling of Rabbi Yishmael? Is it because he holds that change does not cause one to acquire an item? Or perhaps he generally holds that change does cause one to acquire an item, but here, in the case of pe’a, it is different because the term “You shall leave” is written an additional time.
וְאִם תִּמְצֵי לוֹמַר טַעְמָא דְּרַבִּי יִשְׁמָעֵאל מִשּׁוּם דְּקָסָבַר שִׁינּוּי אֵינוֹ קוֹנֶה, ״תַּעֲזֹב״ יַתִּירָא דִּכְתַב רַחֲמָנָא לְמָה לִי? וְתוּ, לְרַבָּנַן – ״תַּעֲזֹב״ יַתִּירָא דִּכְתַב רַחֲמָנָא לְמָה לִי?
Having quoted Rabbi Yonatan’s dilemma, the Gemara asks: And if you say that the reason for the ruling of Rabbi Yishmael is that he holds that change does not cause one to acquire an item, why do I need the additional term “You shall leave,” which the Merciful One writes in the Torah? And furthermore, according to the opinion of the Rabbis, who hold that pe’a may not be taken from dough, why do I need the additional term “You shall leave” that the Merciful One writes?
מִבְּעֵי לֵיהּ לְכִדְתַנְיָא: הַמַּפְקִיר כַּרְמוֹ, וְהִשְׁכִּים לַבֹּקֶר וּבְצָרוֹ – חַיָּיב בְּפֶרֶט וּבְעוֹלֵלוֹת וּבְשִׁכְחָה וּבְפֵאָה, וּפָטוּר מִן הַמַּעֲשֵׂר.
The Gemara responds: This additional term is necessary for that which is taught in a baraita: One who renounced ownership of his vineyard and arose early in the morning before anyone else took possession of it and harvested it is obligated in the mitzva of individual fallen grapes left for the poor [peret], and in the mitzva of incompletely formed clusters of grapes left for the poor [olelot], and in the mitzva of forgotten clusters of grapes left for the poor and in the mitzva of pe’a. These are the four gifts to the poor that the Torah requires one to give from a vineyard. But he is exempt from the mitzva to tithe his produce, because this requirement does not apply to an ownerless field. The obligation to give gifts to the poor in this case is derived from the additional mention of the term “You shall leave.”
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הֲלָכָה כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר.
§ The Gemara returns to the discussion of a stolen item that underwent a change. Rav Yehuda says that Shmuel says: The halakha is in accordance with the opinion of Rabbi Shimon ben Elazar, who says that even if the stolen animal deteriorated, it is returned to the owner in its current state.
וּמִי אָמַר שְׁמוּאֵל הָכִי?! וְהָאָמַר שְׁמוּאֵל: אֵין שָׁמִין לֹא לְגַנָּב וְלֹא לְגַזְלָן, אֶלָּא לִנְזָקִין.
The Gemara expresses surprise: But did Shmuel actually say this? But doesn’t Shmuel say: One does not appraise the change in value, neither for a thief nor for a robber. Rather, they keep the stolen animal and pay back the victim with their own money; one appraises the change only for one obligated to pay for damage?
בִּשְׁלָמָא לְרָבָא, דְּאָמַר: כִּי קָאָמַר רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר הָתָם – בְּהַכְחָשָׁה דְּהָדַר, לָא קַשְׁיָא; כִּי קָאָמַר הֲלָכָה כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר, דְּשִׁינּוּי בִּמְקוֹמוֹ עוֹמֵד – בְּהַכְחָשָׁה דְּהָדַר, וְכִי קָאָמַר שְׁמוּאֵל הָתָם: אֵין שָׁמִין לֹא לְגַנָּב וְלֹא לְגַזְלָן, אֶלָּא לִנְזָקִין – בְּהַכְחָשָׁה דְּלָא הָדַר.
Granted, according to the opinion of Rava, who said earlier in response to Abaye: When Rabbi Shimon ben Elazar states his opinion there, he stated it only with regard to weakening of the animal that is reversible, this is not difficult: When Shmuel says that the halakha is in accordance with the opinion of Rabbi Shimon ben Elazar, who holds that despite a change, the changed item remains in its place, he stated this with regard to weakening of the animal which is reversible, in which case the change is insignificant. And when Shmuel says there: One does not appraise the change in value, neither for a thief nor for a robber, but rather one appraises the change only for one obligated to pay for damage, he stated this with regard to weakening of the animal that is irreversible.
אֶלָּא לְאַבָּיֵי, דְּאָמַר: כִּי קָאָמַר רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר – בְּהַכְחָשָׁה דְּלָא הָדַר קָאָמַר, מַאי אִיכָּא לְמֵימַר?
But according to Abaye, who said that when Rabbi Shimon ben Elazar states his opinion, he states it even with regard to weakening of the animal which is irreversible, what can be said?
אַבָּיֵי מַתְנֵי הָכִי – אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל:
The Gemara responds: Abaye taught the statement of Shmuel like this: Rav Yehuda says that Shmuel says:
אָמְרוּ הֲלָכָה כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר. וְלֵיהּ לָא סְבִירָא לֵיהּ.
Some said that the halakha is in accordance with the opinion of Rabbi Shimon ben Elazar, but Shmuel himself does not hold accordingly.
אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: דְּבַר תּוֹרָה – גְּזֵילָה הַנִּשְׁתַּנֵּית, חוֹזֶרֶת בְּעֵינֶיהָ. שֶׁנֶּאֱמַר: ״וְהֵשִׁיב אֶת הַגְּזֵלָה אֲשֶׁר גָּזָל״ – מִכׇּל מָקוֹם. וְאִם תֹּאמַר: מִשְׁנָתֵנוּ! מִשּׁוּם תַּקָּנַת הַשָּׁבִים.
The Gemara continues the discussion of acquisition of a stolen item due to a change it underwent. Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: By Torah law, a stolen item that has changed is returned as is, as it is stated: “And he shall restore that which he took by robbery” (Leviticus 5:23). This indicates that he shall return it in any case, even if it has been changed. And if you say: In our mishna it is stated that if the stolen item is changed the robber gives monetary compensation rather than returning the item, that policy was instituted by the Sages due to the ordinance instituted for the penitent.
וּמִי אָמַר רַבִּי יוֹחָנָן הָכִי?! וְהָאָמַר רַבִּי יוֹחָנָן: הֲלָכָה כִּסְתַם מִשְׁנָה, וּתְנַן: לֹא הִסְפִּיק לִיתְּנוֹ לוֹ עַד שֶׁצְּבָעוֹ – פָּטוּר!
The Gemara asks: But did Rabbi Yoḥanan actually say that? But doesn’t Rabbi Yoḥanan say: The halakha is in accordance with an unattributed mishna, and we learned in a mishna with regard to first of the sheared wool (Ḥullin 135a): If the owner of the sheep did not manage to give the sheared wool to the priest before he dyed it, he is exempt from giving it to the priest. This indicates that dyeing the wool is a significant change.
אֲמַר לְהוּ הַהוּא מִדְּרַבָּנַן – וְרַבִּי יַעֲקֹב שְׁמֵיהּ: לְדִידִי מִפָּרְשָׁא לִי מִינֵּיהּ דְּרַבִּי יוֹחָנָן – כְּגוֹן שֶׁגָּזַל עֵצִים מְשׁוּפִּין וַעֲשָׂאָן כֵּלִים, דְּהָוֵה לֵיהּ שִׁינּוּי הַחוֹזֵר לִבְרִיָּיתוֹ.
One of the Rabbis, whose name was Rabbi Ya’akov, said to them: It was explained to me directly by Rabbi Yoḥanan that he was referring to a case where he robbed another of sanded wood and fashioned it into vessels, which is a change in which the item can revert to its original state. Consequently, the robber does not acquire the item by Torah law, but rather due to the ordinance instituted for the penitent.
תָּנוּ רַבָּנַן: הַגַּזְלָנִין וּמַלְוֵי בְּרִבִּית שֶׁהֶחְזִירוּ – אֵין מְקַבְּלִין מֵהֶן. וְהַמְקַבֵּל מֵהֶן – אֵין רוּחַ חֲכָמִים נוֹחָה הֵימֶנּוּ.
§ Having mentioned the ordinance instituted for the penitent, the Gemara discusses other details of this ordinance. The Sages taught in a baraita (Tosefta, Shevi’it 8:11): With regard to robbers or usurers that returned either the stolen item or the interest to the one from whom they took it, one should not accept it from them. And with regard to one who does accept it from them, the Sages are displeased with him, since by doing so he discourages those who wish to repent.
אָמַר רַבִּי יוֹחָנָן: בִּימֵי רַבִּי נִשְׁנֵית מִשְׁנָה זוֹ. דְּתַנְיָא: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁבִּקֵּשׁ לַעֲשׂוֹת תְּשׁוּבָה, אָמְרָה לוֹ אִשְׁתּוֹ: רֵיקָה! אִם אַתָּה עוֹשֶׂה תְּשׁוּבָה, אֲפִילּוּ אַבְנֵט אֵינוֹ שֶׁלְּךָ! וְנִמְנַע וְלֹא עָשָׂה תְּשׁוּבָה. בְּאוֹתָהּ שָׁעָה אָמְרוּ: הַגַּזְלָנִין וּמַלְוֵי רִבִּיּוֹת שֶׁהֶחְזִירוּ – אֵין מְקַבְּלִין מֵהֶם, וְהַמְקַבֵּל מֵהֶם – אֵין רוּחַ חֲכָמִים נוֹחָה הֵימֶנּוּ.
Rabbi Yoḥanan says: This mishna, i.e., the statement of the Tosefta, was taught in the days of Rabbi Yehuda HaNasi, as it is taught in a baraita: There was an incident with regard to one man who desired to repent after having been a thief for many years. His wife said to him: Empty one [reika], if you repent you will have to return all the stolen items to their rightful owners, and even the belt that you are wearing is not yours, and he refrained and did not repent. At that time, the Sages said: With regard to robbers or usurers that returned either the stolen item or the interest to the one from whom they took it, one should not accept it from them. And concerning one who does accept it from them, the Sages are displeased with him.
מֵיתִיבִי: הִנִּיחַ לָהֶם אֲבִיהֶם מָעוֹת שֶׁל רִבִּית, אַף עַל פִּי שֶׁהֵן יוֹדְעִין שֶׁהֵן רִבִּית – אֵין חַיָּיבִין לְהַחְזִיר. אִינְהוּ הוּא דְּלָא, הָא אֲבִיהֶם חַיָּיב לְהַחְזִיר.
The Gemara raises an objection from a baraita: With regard to children whose deceased father left them money paid as interest, although they know that it is interest, they are not obligated to return it. The Gemara infers: They, the children, are the ones that are not obligated to return it, but their father would have been obligated to return it, and his victims may accept his money.
בְּדִין הוּא דַּאֲבִיהֶם נָמֵי אֵינוֹ חַיָּיב לְהַחְזִיר; וְהָא דְּקָתָנֵי בְּדִידְהוּ – מִשּׁוּם דְּקָא בָּעֵי לְמִתְנֵי סֵיפָא: ״הִנִּיחַ לָהֶם אֲבִיהֶם פָּרָה וְטַלִּית וְכׇל דָּבָר הַמְסוּיָּים – חַיָּיבִין לְהַחְזִיר מִפְּנֵי כְּבוֹד אֲבִיהֶם״, תְּנָא רֵישָׁא נָמֵי בְּדִידְהוּ.
The Gemara responds: By right, the baraita should have taught that their father also would not have been obligated to return it. And the fact that the baraita teaches this halakha with regard to the children is because of the fact that the baraita wants to teach a halakha in the latter clause: If their deceased father left them a cow, or a garment, or any other specific item he had stolen or taken as interest, they are obligated to return it due to the honor of their father, so that the item not serve as a reminder to all that their father transgressed. Since this halakha needs to be stated specifically with regard to the children, the first clause of the baraita is also taught with regard to them.
וּמִפְּנֵי כְּבוֹד אֲבִיהֶם – חַיָּיבִין לְהַחְזִיר? אֶקְרֵי כָּאן: ״וְנָשִׂיא בְעַמְּךָ לֹא תָאֹר״ – בְּעוֹשֶׂה מַעֲשֵׂה עַמְּךָ?!
The Gemara asks: But is it true that due to the honor of their father they are obligated to return the item or money? I will read here the verse: “You shall not revile God, nor curse a ruler of your people” (Exodus 22:27), from which the Sages inferred that the prohibition against cursing a ruler is in effect only with regard to a ruler that acts as a member of your people, i.e., in accordance with Torah law. One who curses a wicked ruler does not violate this prohibition. Similarly, if one’s father is wicked, the mitzva to honor him should not apply. Why would his children have to return items that he stole due to his honor?
כִּדְאָמַר רַב פִּנְחָס: בְּשֶׁעָשָׂה תְּשׁוּבָה; הָכָא נָמֵי, בְּשֶׁעָשָׂה תְּשׁוּבָה. אִי עָשָׂה תְּשׁוּבָה, מַאי בָּעֵי גַּבֵּיהּ? אִיבְּעִי לֵיהּ לְאַהְדּוֹרֵי! שֶׁלֹּא הִסְפִּיק לְהַחְזִיר עַד שֶׁמֵּת.
The Gemara responds: It is like that which Rav Pineḥas said concerning a different case: This is a case where he repented. Here too, it is a case where the father repented, and since he is no longer wicked, his children are obligated to honor him. The Gemara asks: If he repented, what was the stolen item or interest doing with him? He should have returned it while he was still alive. The Gemara responds: It is a case where he did not manage to return it before he died. Consequently, the children must return the items in order to uphold their father’s honor.
תָּא שְׁמַע: הַגַּזְלָנִים וּמַלְוֵי בְּרִבִּית, אַף עַל פִּי שֶׁגָּבוּ – מַחֲזִירִין.
The Gemara raises another contradiction: Come and hear the statement of another baraita: With regard to robbers and usurers, although they collected the stolen item or interest, they return it.
גַּזְלָנִין – מַאי ״שֶׁגָּבוּ״ אִיכָּא? אִי גְּזוּל – גְּזוּל, וְאִי לָא גְּזוּל – לָא גְּזוּל! אֶלָּא אֵימָא: הַגַּזְלָנִין, וּמַאי נִיהוּ – מַלְוֵי רִבִּיּוֹת; אַף עַל פִּי שֶׁגָּבוּ – מַחְזִירִין! אָמְרִי: מַחְזִירִין, וְאֵין מְקַבְּלִין מֵהֶם.
The Gemara first clarifies the meaning of the baraita: In the case of robbers, what collection is there, i.e., why did the baraita use the term: Collected, in this context? If they robbed, they robbed and did not collect anything; and if they did not rob, they did not rob and cannot be called robbers at all. Rather, emend the text of the baraita to say: With regard to robbers, and who are they, i.e., what is meant by the term: Robbers? It is referring to usurers. The Gemara resumes its citation of the baraita: Although they collected the interest, they must return it. This is contrary to the ruling of the Tosefta that if robbers and usurers return what they have taken, it is not accepted. The Gemara explains: Say that this baraita means that they return it, but one does not accept it from them.
אֶלָּא לָמָּה מַחְזִירִין? לָצֵאת יְדֵי שָׁמַיִם.
The Gemara asks: But why do they return it if it will not be accepted? The Gemara responds: In order to fulfill their obligation to Heaven. In order to fully repent, they must at least offer to return to the debtors the interest they took unlawfully.
תָּא שְׁמַע: הָרוֹעִים וְהַגַּבָּאִין וְהַמּוֹכְסִין – תְּשׁוּבָתָן קָשָׁה, וּמַחְזִירִין לְמַכִּירִין!
The Gemara raises a contradiction from another source. Come and hear the statement of another baraita: With regard to shepherds who allow their animals to graze in other people’s fields, thereby stealing from the owners; or tax collectors who are hired to collect taxes on behalf of the government and collect excessive sums; or tax collectors who purchase the right to collect taxes themselves and collect unlawfully, their repentance is difficult, since they steal from the public. It is difficult for them to find every one of their victims in order to pay them restitution, and they must return what they have stolen to whomever they recognize as victims of their theft. This baraita indicates that thieves do return what they have stolen.
אָמְרִי: מַחְזִירִין, וְאֵין מְקַבְּלִין מֵהֶם. וְאֶלָּא לָמָּה מַחְזִירִין? לָצֵאת יְדֵי שָׁמַיִם. אִי הָכִי, אַמַּאי תְּשׁוּבָתָן קָשָׁה?
The Gemara answers: Say that they return it, but one does not accept it from them. The Gemara asks: But why do they return it if it will not be accepted? The Gemara responds: In order to fulfill their obligation to Heaven. The Gemara asks: If so, if they are not actually obligated to return what they have stolen, why is their repentance difficult?
וְעוֹד, אֵימָא סֵיפָא: וְשֶׁאֵין מַכִּירִין – יַעֲשֶׂה בָּהֶן צׇרְכֵי צִיבּוּר, וְאָמַר רַב חִסְדָּא: בּוֹרוֹת, שִׁיחִין וּמְעָרוֹת! אֶלָּא לָא קַשְׁיָא; כָּאן קוֹדֶם תַּקָּנָה, כָּאן לְאַחַר תַּקָּנָה.
And furthermore, say the latter clause of the baraita: And as for the money belonging to those that they do not recognize as their victims, they should use that money for community needs. And Rav Ḥisda says: This means providing pits, ditches, and caves, which benefit the general public. This indicates that a thief actually does pay back what he has stolen. Rather, this contradiction must be resolved differently. It is not difficult: Here, where the baraita states that he must actually return what he has stolen, it is referring to a time before the ordinance for the penitent was instituted. There, where the baraita states that one does not accept the repayment from a robber, it is referring to a time after the ordinance was instituted.
וְהַשְׁתָּא דְּאָמַר רַב נַחְמָן: בְּשֶׁאֵין גְּזֵילָה קַיֶּימֶת – אֲפִילּוּ תֵּימָא אִידֵּי וְאִידֵּי לְאַחַר תַּקָּנָה; וְלָא קַשְׁיָא,
The Gemara adds: And now that Rav Naḥman says that when the Sages say that he does not return what he has stolen, they refer only to a case where the stolen item does not exist in its initial form, and you can even say that this and that, both baraitot, are referring to a time after the ordinance was instituted, and it is not difficult.
