Gittin - Daf 55
- Machlokes about the takanah of the stolen chatas (יאוש כדי קני)
The next Mishnah relates several testimonies from Rebbe Yochanan ben Gudgeda, including: ועל חטאת הגזולה שלא נודעה לרבים – Concerning a stolen chatas (i.e., a stolen animal which the thief designated as a chatas) which was not publicly known to have been stolen, שהיא מכפרת מפני תיקון המזבח – that it atones (for the thief’s chatas obligation), for the benefit of the mizbeiach. Two explanations are given. (1) Ulla says: דבר תורה בין נודעה ובין לא נודעה אינה מכפרת – Biblically speaking, whether it was known or not, it does not atone for the thief, because יאוש כדי לא קני – the owner’s despair (from ever retrieving his stolen property) alone does not acquire ownership for the thief. Nevertheless, the Rabbis instituted that where the stolen status of the animal is unknown, it atones for the thief’s obligation, שלא יהו כהנים עצבין – so that the Kohanim should not be saddened by the later discovery that they ate illegitimate sacrificial meat (chullin brought as a korban). This is called a “benefit of the mizbeiach,” because Kohanim would hesitate in the future to bring korbanos. (2) Rav Yehudah says that Biblically speaking, a stolen animal is always a valid korban, because יאוש alone does enable the thief to acquire it. The Rabbis only instituted to disqualify stolen korbanos whose status was publicly known, שלא יאמרו מזבח אוכל גזילות – so people should not say that the mizbeiach consumes stolen items.
- A stolen animal designated as a korban which was shechted outside the Mikdash – ענוש כרת
Rava challenged Ulla from a Baraisa which teaches about a stolen animal which the thief was makdish: בחוץ כי האי גוונא – If he shechted it outside the Mikdash in such a case, ענוש כרת – he is liable to kares. This proves that יאוש is sufficient for the thief to own and be makdish the animal, for otherwise there would not be kares for shechting it outside the Mikdash!? Rav Shizvi answered: כרת מדבריהם – It means kares by [Rabbinical] decree. After Rava admonished the students for laughing at the notion of a Rabbinically-administered kares, he explained that the kares was engendered due to a Rabbinical decree: אוקמוה רבנן ברשותיה – the Rabbis placed it in [the thief’s] possession (using the principle of הפקר בית דין הפקר), כי היכי דליחייב עלה – so that he should be liable to kares for shechting it outside the Mikdash. Rava later added that it is logical that this Rabbinic transfer takes place at the moment the thief is makdish it, and not earlier when it is stolen (which would entitle him to the shearings and offspring in the interim), שלא יהא חוטא נשכר – so that the sinner should not profit from his wrongdoing.
- Purchasing land from a סקריקון, idolater who seized land from a Jew
The next Mishnah teaches about purchasing land from a סקריקון, a murderous idolater who received land from a Jew so he would not kill him. It begins by teaching that the law of sikrikon did not apply in the period when people were killed during the war of Titus. The Gemara explains that since idolaters were free (or even required) to kill Jews, we assume the Jew sincerely transacted his land to the sikrikon threatening him. Later, when killing Jews was punishable by death, the law of sikrikon applied. The law is explained: לקח מסיקריקון – If one purchased land from a sikrikon, וחזר ולקח מבעל הבית – and then bought it from the original Jewish owner, מקחו בטל – the sale is void, because we assume the owner only agreed to the sale from fear of the sikrikon. מבעל הבית וחזר ולקח מסיקריקון – However, if he first bought it from the owner, and then bought it from the sikrikon, מקחו קיים – his purchase is valid (since the owner volunteered to sell it, it is assumed to be in earnest). A later court ruled that if the land remained for twelve months with the sikrikon, one who buys the land pays one-quarter to the owner and keeps it.
