בבא קמא דף סז

הא לאו הכי – הדר בעיניה! אמר רב יוסף: מריש – שמו עליו, דתניא: ״צלעות הבית״ – אלו המלטטין, ״והעבים״ – אלו המרישות.

One can infer: But if were not for this decree, the beam would have to be returned to the owner as is, notwithstanding its change in name. Rav Yosef said: This is not a genuine change in name, as a beam retains its name even after it is inserted into a building. As it is taught in a baraita with regard to two obscure terms: The verse states: “And there were narrow windows and palm trees on the one side and on the other side, on the sides of the porch; there were also the tzalot of the house, and the ubbim” (Ezekiel 41:26). “Tzalot of the house”; these are the casings [hamaltetin]. “And the ubbim”; these are the beams [hamerishot]. This shows that a beam can retain its name even after it has been built into a house.

רבי זירא אמר: שינוי החוזר לברייתו – בשינוי השם – לא הוי שינוי.

Rabbi Zeira said a different answer: With regard to a change in name, a change in which the item can revert to its original state is not considered enough of a change for the thief to acquire the stolen item. Since the joist can be removed and revert to being called a beam, it is not considered a true change of name.

ושינוי השם שאינו חוזר לברייתו, מי הוי שינוי? והרי צינור – דמעיקרא ״קציצתא״ והשתא ״צינורא״, ותניא: צינור שחקקו ולבסוף קבעו – פוסל את המקוה.

The Gemara asks: And is a change in name in which the item does not revert to its original state really considered a change? But there is the case of a water duct, where it was initially called a log [ketzitzta] and now it is called a duct, and it is taught in a baraita: A duct that one hollowed out and afterward attached to the ground or to a building invalidates a ritual bath through the water it channels to the bath. The water in a ritual bath must be gathered directly from rain or a stream, not drawn with vessels. If one hollowed out a log and used it to channel water into the bath, this is considered drawn water, as he used a vessel.

קבעו ולבסוף חקקו – אינו פוסל את המקוה.

By contrast, if one attached it first and afterward hollowed it out, it does not invalidate the ritual bath. Before the log was hollowed out, it was already attached to and considered part of the ground, and therefore the act of hollowing it out does not turn it into a vessel.

ואי אמרת שינוי השם מילתא היא, אפילו קבעו ולבסוף חקקו נמי ליפסל!

The Gemara states its question: And if you say that a change in name is considered a matter of significance, i.e., it is considered a real change in the item, then even if one attached the log first and afterward hollowed it out, the ritual bath should also be invalid. Since hollowing out the log leads to a change in name, it should be considered a new vessel at that point.

שאני שאיבה, דמדרבנן היא. אי הכי, אפילו דרישא נמי! התם איכא תורת כלי עליו בתלוש, הכא אין תורת כלי עליו בתלוש.

The Gemara answers: The halakha that drawn water may not be used for a ritual bath is different, as it applies by rabbinic law, and consequently the Sages were lenient in this case. The Gemara asks: If so, then even in the first clause, where the log was hollowed out before being attached, it should be permitted as well. The Gemara answers: There is a difference between the two cases. There, in the first clause, the log had the status of a vessel while it was still detached. Here, in the second case, it did not have the status of a vessel while it was detached, but only after it became attached to the ground, and therefore the Sages were lenient.

מיתיבי: הגנב והגזלן והאנס – הקדישן הקדש, ותרומתן תרומה, ומעשרותן מעשר.

The Gemara raises an objection against Rav Yosef’s opinion that the owner’s despair that he will recover his stolen items does not effect acquisition for the thief, from a baraita: With regard to a thief, a robber, and one who forces people to sell him items against their will, their consecration of the items they obtained in these manners is a valid consecration; and the teruma that they separate from the produce they obtained in these manners is valid teruma; and the tithes that they separate from those foods are valid tithes. Consecrations, terumot, and tithes must be performed by the owner of the item in question. Since there was no physical change in these items, this shows that the thief is considered the new owner merely by virtue of the owner’s despair of recovery.

אמרי: התם איכא שינוי השם – דמעיקרא ״טיבלא״ והשתא ״תרומה״, הקדש מעיקרא ״חולין״ והשתא ״הקדש״.

The Sages say, in answer to this question: There, in those cases involving consecrations, terumot, and tithes, there is a change in name of the stolen item, as initially the stolen food was called untithed produce, i.e., produce from which teruma and tithes have not been separated, and now it is called teruma or tithe. With regard to consecration, it was initially called non-sacred property, and now it is called consecrated property.

אמר רב חסדא אמר רבי יונתן: מניין לשנוי שהוא קונה? שנאמר: ״והשיב את הגזלה״ – מה תלמוד לומר ״אשר גזל״? אם כעין שגזל – יחזיר,

Rav Ḥisda says that Rabbi Yonatan says: From where is it derived that a change in a stolen item causes the thief to acquire it? As it is stated: “And he shall return the stolen item that he took by robbery” (Leviticus 5:23). What is the meaning when the verse states the seemingly superfluous phrase “that he took by robbery”? It teaches that only if the item is in the same state as when he took it by robbery it he must return it. But if not, he is required to pay only money; the stolen item remains his to keep.

ואם לאו – דמים בעלמא בעי שלומי.

האי ״אשר גזל״ מיבעי למעוטי גזל אביו, שאינו מוסיף חומש על גזל אביו!

The Gemara asks with regard to this derivation: But this phrase: “That he took by robbery,” is required to exclude the case of an item stolen by one’s father, i.e., that when a son returns an item or money that his father had stolen, he does not add one-fifth to the principal amount of that which his father stole. The passage in question addresses one who stole and took a false oath. This individual is obligated to add one-fifth to the amount he stole (see Leviticus 5:21–24). The apparently redundant phrase “that he took by robbery,” teaches that the requirement to add one-fifth applies only to the sinner himself, not to his heirs (see 104b).

אם כן, ניכתוב רחמנא ״והשיב את גזילו״, ״אשר גזל״ למה לי למכתב? שמע מינה תרתי.

The Gemara answers: If so, if the verse teaches only that halakha, let the Merciful One write merely: And he shall return his stolen item, as from that phrase alone it could be derived that an heir does not have to add one-fifth. Why do I need the Torah to write the expression “that he took by robbery”? One may therefore conclude two conclusions from this verse: A son need not add one-fifth, and a change in a stolen item effects acquisition for the thief.

ואיכא דאמרי, אמר רב חסדא אמר רבי יונתן: מניין לשנוי שאינו קונה – שנאמר: ״והשיב את הגזילה״ – מכל מקום. והא כתיב: ״אשר גזל״!

And there are those who say a different version of the above statement: Rav Ḥisda says that Rabbi Yonatan says: From where is it derived that a change in a stolen item does not cause the thief to acquire it? As it is stated: “And he shall return the stolen item that he took by robbery” (Leviticus 5:23), from which it may be inferred that he must return it in any case, even if it has undergone a change. The Gemara asks: But it is written “that he took by robbery,” which indicates that, on the contrary, the item need be returned only if it is in a similar state to when it was stolen. The Gemara answers: That phrase is required to teach another halakha: One adds one-fifth upon returning his own stolen item concerning which he had taken a false oath, but he does not add one-fifth upon returning something stolen by his father.

ההוא מיבעי ליה – על גזילו שלו מוסיף חומש, ואין מוסיף חומש על גזל אביו.

אמר עולא: מניין ליאוש שאינו קונה? שנאמר: ״והבאתם גזול את הפסח ואת החולה״ – גזול דומיא דפסח, מה פסח דלית ליה תקנתא כלל,

Ulla says: From where is it derived that the owner’s despair of recovering his stolen item does not cause the thief to acquire it? As it is stated in the criticism of the Jewish people for bringing inferior animals as offerings: “And you have brought that which is stolen, and the lame, and the sick” (Malachi 1:13). From the juxtaposition of these cases it may be derived that a stolen animal is similar to a lame animal: Just as a lame animal has no rectification at all with regard to its disqualification as an offering,

אף גזול דלית ליה תקנתא; לא שנא לפני יאוש, ולא שנא אחר יאוש.

so too a stolen animal has no rectification for its disqualification. There is no difference whether one is dealing with a stolen animal before the owner’s despair of recovering it, and there is no difference if it is after the owner’s despair. In either case, it is disqualified. This shows that the owner’s despair does not effect acquisition for the thief.

רבא אמר מהכא: ״קרבנו״ – ולא הגזול. אימת? אילימא לפני יאוש – פשיטא, למה לי קרא?

Rava said: This halakha may be derived from here, 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. When, i.e., in which circumstances, is it necessary to teach this halakha? If we say it is dealing with a stolen animal that the robber consecrated and sacrificed before the owner’s despair of recovery, why do I need a verse to teach this? It is obvious that it is disqualified, as one cannot even consecrate an animal that does not belong to him.

אלא לאו לאחר יאוש – ושמע מינה יאוש לא קני? שמע מינה.

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. The Gemara affirms: Conclude from the baraita that it is so.

והא רבא הוא דאמר דגזל קרבן דחבריה! איבעית אימא: הדר ביה, ואיבעית אימא: חד מינייהו רב פפא אמרה.

The Gemara asks: But Rava was the one who said that this proof can be refuted, as the baraita can be interpreted as dealing with one who robbed another of an offering that was already consecrated. Rava apparently contradicts himself. The Gemara answers: If you wish, say that Rava retracted one of these two statements. And if you wish, say instead that Rav Pappa, not Rava, said one of these two statements.

ומדת תשלומי ארבעה וחמשה וכו׳.

§ The Gemara returns to the mishna, which teaches: But the principle of fourfold or fivefold payment applies only to the theft of an ox or a sheep, as it is stated: “If a man steal an ox or a sheep, and slaughter it or sell it, he shall pay five oxen for an ox and four sheep for a sheep” (Exodus 21:37).

ואמאי? נילף ״שור״–״שור״ משבת – מה להלן חיה ועוף כיוצא בהן, אף כאן חיה ועוף כיוצא בהן!

The Gemara asks: But why is the fourfold and fivefold payment limited to oxen and sheep? Let us derive otherwise by a verbal analogy of the term “ox” in this verse and “ox” from a passage dealing with Shabbat, where it is stated: “And the seventh day is Sabbath to the Lord your God, you shall not perform any labor, you, your son, and your daughter, and your slave, and your maidservant, and your ox, and your donkey, and all your animals, and the gentile that is within your gates” (Deuteronomy 5:13). Just as there, with regard to Shabbat, the halakha stated with regard to an ox is not limited to oxen, as undomesticated animals and fowl are similar to oxen in that they too are included in this prohibition, as the verse states: “Nor any of your animals,” so too here, in the case of theft, one can say that undomesticated animals and fowl are similar to oxen in that the fourfold or fivefold payment is incurred for their theft.

אמר רבא, אמר קרא: ״שור ושה״ ״שור ושה״ שני פעמים – שור ושה אין, מידי אחרינא לא.

Rava said: The verse dealing with theft states “ox” and “sheep,” “ox” and “sheep” twice. This repetition indicates that for an ox and a sheep, yes, there is a fourfold or fivefold payment, and for other items, no, there is no fourfold or fivefold payment.

אמרי: הי מייתר? אילימא ״שור ושה״ דסיפא מייתר, דניכתוב רחמנא: ״כי יגנב שור או שה וטבחו ומכרו, חמשה בקר ישלם תחתיו וארבע צאן תחתיו״; אי כתב רחמנא הכי,

The Gemara says, with regard to Rava’s assertion that one of the instances of “ox” and “sheep” is superfluous: Which instance of the word “ox” or “sheep” is the superfluous one? If we say that the instance of “ox” and “sheep” at the end of the verse is superfluous, due to the following consideration: Let the Merciful One write: If one steal an ox or a sheep, and slaughter it or sell it, he shall pay five oxen for it and four sheep for it, without repeating the words “ox” and “sheep,” this is not possible. If the Merciful One had written the verse like this, I would say that the thief is required to pay nine animals, five oxen and four sheep, for each and every animal stolen.

הוה אמינא בעי שלומי תשעה לכל אחד ואחד!

וכי תימא הא כתיב ״תחתיו״ ״תחתיו״ – חד ״תחתיו״ מייתר;

And if you would say that this interpretation is not possible, as the suggestion is that the verse would have written: For it, for it, twice, whereas if a payment of nine animals were required for each stolen animal the verse would have written: For it, only once; then one mention of: For it, is superfluous, to teach us that it is five for an ox and four for a sheep.

ההוא מיבעי ליה לדרשה אחרינא – דתניא: יכול גנב שור שוה מנה, ישלם תחתיו [חמשה] נגידין? תלמוד לומר: ״תחתיו״ ״תחתיו״.

The Gemara rejects this: That repetition of: For it, is required for another interpretation, and cannot teach that it is five for an ox and four for a sheep. As it is taught in a baraita: One might have thought that if one stole an expensive ox worth one hundred dinars he may pay for it with lean, inferior animals [negidin]. To counter this, the verse states: “For the ox” and “for the sheep,” which indicates that the oxen and sheep used for payment must be similar to the stolen animal in quality. Since one might have erred and understood that the thief is required to pay nine animals, five oxen and four sheep, for each and every animal stolen, that suggested version of the verse is not a possibility. The words “ox” and “sheep” at the end of the verse could not have been omitted, so they are not superfluous.

אלא ״שור ושה״ דרישא מייתר – דנכתוב רחמנא: ״כי יגנב איש וטבחו ומכרו, חמשה בקר ישלם תחת השור, וארבע צאן תחת השה״.

The Gemara suggests: Rather, the words “ox” and “sheep” in the first part of the verse are superfluous, due to the following consideration: Let the Merciful One write: If a man steal, and slaughter it or sell it, he shall pay five oxen for the ox, and four sheep for the sheep, without mentioning “ox” or “sheep” at the beginning of the verse.

אי כתב רחמנא הכי, הוה אמינא: עד דגניב תרי וטבח להו! ״וטבחו״ כתיב – לחד.

The Gemara objects: It is not possible for the verse to have been written this way, as if the Merciful One had written it in this manner I would say: A thief is not required to pay the fourfold or fivefold payment unless he steals two animals, an ox and a sheep, and slaughters them both. The Gemara responds: One could not interpret the verse in this manner, as it is written: “And slaughter it.” The singular pronoun “it” is referring to the slaughter of only one animal.

ואימא: עד דגניב תרוייהו ומזבין להו! ״ומכרו״ כתיב – לחד.

The Gemara asks: But one could say that a thief is not required to pay the fourfold or fivefold payment unless he steals both of these animals, an ox and a sheep, and sells them both. The Gemara rejects this suggestion in a similar manner: This interpretation is also not possible, as it is written: “Or sell it,” which is referring to the sale of only one animal.

ואימא: הוה אמינא עד דגניב תרי, וטבח חד ומזבין חד! ״או מכרו״ כתיב.

The Gemara further asks: But one could say a different interpretation: I would say that a thief is not required to pay the fourfold or fivefold payment unless he steals two animals, an ox and a sheep, and slaughters one of them and sells the other one. The Gemara rejects this suggestion as well: This interpretation is impossible, as it is written: “And slaughter it or sell it.” The term “or” indicates that only one of these two actions results in paying the penalty.

ואכתי הוה אמינא עד דגניב תרוייהו וטבח חד ומשייר חד, או מזבין חד ומשייר חד!

The Gemara asks: But still, had the verse been worded without mentioning an ox or sheep at the start, I would say: A thief does not pay the fourfold or fivefold payment unless he steals two animals, an ox and a sheep, and slaughters one of them and leaves the other one, or sells one and leaves the other one. It is therefore impossible to omit the words “ox” and “sheep” in the beginning of the verse, which means that these words are not superfluous.

אלא: ״שור״ דסיפא ו״שה״ דרישא מייתר, דניכתוב רחמנא: ״כי יגנב איש שור וטבחו ומכרו, חמשה בקר ישלם תחתיו, וארבע צאן תחת השה״; ״שור״ דסיפא ו״שה״

The Gemara gives its final explanation of Rava’s statement: Rather, “ox” at the end of the verse and “sheep” in the first part of the verse are superfluous, due to the following consideration: Let the Merciful One write: If a man steal an ox and slaughter it or sell it, he shall pay five oxen for it, and four sheep for a sheep. Why do I need the word “ox” at the end of the verse and the word “sheep” in the first part of the verse? Conclude from these apparently superfluous words that for an ox and a sheep, yes, a thief is obligated to pay the fourfold or fivefold payment, but for stealing other items, no, he is not.

דרישא למה לי? שמע מינה: שור ושה אין, מידי אחרינא לא.

אין הגונב אחר הגנב משלם תשלומי כפל. אמר רב: לא שנו אלא לפני יאוש, אבל לאחר יאוש – קנאו גנב ראשון, וגנב שני משלם תשלומי כפל לגנב ראשון.

§ The mishna teaches: One who steals an item after a thief has already stolen it, i.e., one who steals a stolen item, does not pay the double payment to the thief or to the prior owner. Rather, he pays the principal amount alone. Rav says: They taught this halakha only in a case where the second thief stole from the first thief before the owner’s despair of recovering his item. But if the second thief stole it after the owner’s despair, the first thief had acquired the stolen item for himself as a result of the owner’s despair, and the second thief pays the double payment to the first thief, who at the time of the second theft was its legal owner.

אמר רב ששת: אמינא כי ניים ושכיב רב אמר להא שמעתא. דתניא, אמר רבי עקיבא: מפני מה אמרה תורה טבח ומכר משלם תשלומי ארבעה וחמשה?

Rav Sheshet said: I say that when Rav was sleepy and lying down to rest he said this halakha, i.e., he did not give it enough thought. This ruling is incorrect, as it is taught in a baraita that Rabbi Akiva said: For what reason did the Torah say that if a thief slaughtered or sold a stolen ox or sheep he pays the fourfold or fivefold payment? It is because by selling or slaughtering the animal the thief becomes more deeply entrenched in sin. Rav Sheshet analyzes Rabbi Akiva’s statement: When did this sale of the stolen animal take place? If we say it occurred before the owner’s despair of recovering his property,

מפני שנשתרש בחטא. אימת? אילימא לפני יאוש,