Bava Kamma - Daf 68
- Machlokes whether one who sells a stolen animal before יואשis chayav forד' והי
The Gemara states: המוכר לפני יאוש – One who sells a stolen animal before the owner’s despair, Rav Nachman says: חייב – he is liable to pay ד' וה', because "ומכרו" אמר רחמנא – the Torah says, “or he sells it,” והא זבין – and he has sold it, regardless of whether it is before or after יאוש, even if it does not effect an actual acquisition. Rav Sheishess says: פטור – he is exempt from paying ד' וה', because חיוביה לאחר יאוש הוא דאהנו מעשיו – his liability is only after the owner’s despair, where [the thief’s] actions are effective (i.e., the change of domain, following יאוש, causes the buyer to acquire it). Before יאוש, where the sale is ineffective, he would not pay ד' וה'. It must be similar to shechting, where his actions are effective. Rashi notes that these Amoraim both hold יאוש alone is not קונה, whereas Rav, who holds יאוש is קונה, holds one only pays ד' וה' if he sold before יאוש. If he sold after יאוש, it is already his. A Baraisa teaches that one only pays ד' וה' for a sale which does not revert (similar to shechting). This implies that one is not liable for a sale before יאוש, but Rav Nachman explains it means to exclude a sale for a limited time, such as thirty days.
- Rebbe Elazar: סתם גניבה יאוש בעלים
The Gemara says that Rebbe Elazar also holds that ד' וה' is only paid for a sale after יאוש. He says: תדע שסתם גניבה יאוש בעלים הוא – Know that the presumption regarding theft is that the owner despairs of retrieving his item. His proof is that a thief pays ד' וה' for selling an animal, which he assumes must be effective (similar to shechting). Since the Torah implies he would be liable for an immediate sale (similar to shechting), it must be that we assume the owner despaired, and the subsequent change of domain through the sale effects the acquisition to the buyer (together with the יאוש). Rebbe Yochanan rejects Rebbe Elazar’s premise that a thief would only be liable for an effective sale, and after יאוש: גניבה בנפש תוכיח – let the law of kidnapping prove that a thief is liable for a sale before יאוש, שאין יאוש בעלים וחייב – for regarding kidnapping and selling the victim, there is no despair by the owner (i.e., himself), yet he is liable (to the death penalty), although the “sale” is ineffective!?
- גנב והקדיש ואחר כך טבח
Rebbe Yochanan, who holds one is liable for selling or shechting after יאוש, challenged Reish Lakish, who disagreed, from a Mishnah: גנב והקדיש– One who stole an animal, and he was makdish it, ואחר כך טבח – and afterwards he shechted it, he only pays כפל, but not ד' וה'. Rebbe Yochanan assumes the thief was makdish it, which can only be effective after יאוש. Still, the Mishnah implies that if it was not hekdesh, he would pay ד' וה'!? Reish Lakish answers that the Mishnah’s case is before יאוש, and it means the owner was makdish it. Although Rebbe Yochanan taught that one cannot be makdish his stolen item, Reish Lakish explains that this Mishnah holds like the opinion (discussed in the next Daf) that he can.
The Gemara asks: והרי חזרה קרן לבעלים – But the principal has returned to its owner! Since the stolen item became hekdesh, and is no longer in the thief’s legal domain, he should not pay כפל, which is only paid where it was found in his domain!? It answers: כשעמד בדין – the Mishnah’s case is where [the thief] stood in court and was held liable for כפל before the owner was makdish it. This answer is further analyzed.
