QUESTION: The Gemara suggests that the word "Chamor" in the verse (Shemos 22:3) should be viewed as a "Prat" that comes between the two "Kelalim" of "Himatzei Timatzei," and it is in intended "to include a Davar ha'Mesuyam" in the law of Tashlumei Kefel.

This is the Girsa of our texts of the Gemara and the Girsa of Rashi. The Girsa of Tosfos -- "to exclude a Davar she'Eino Mesuyam," has the same Halachic consequence, that only a "Davar ha'Mesuyam" is included in Tashlumei Kefel. However, according to Tosfos, the emphasis of the Chidush is more accurate, since there is no reason to exclude a "Davar ha'Mesuyam" such that a verse is needed to include it. Rather, one would have assumed that all items are included, and the verse comes and teaches that a "Davar she'Eino Mesuyam" is excluded.

Tosfos (DH li'Me'uti) cites an alternate Girsa which says that the verse is intended "to include a Davar she'Eino Mesuyam" in the law of Tashlumei Kefel. Tosfos earlier (63a, DH Davar) questions this Girsa and asks why is a verse necessary to include a "Davar she'Eino Mesuyam" in the law of Tashlumei Kefel of an ordinary Ganav? For what reason would one have thought that such an item should be excluded, such that a verse is needed to include it? Therefore, Tosfos concludes that the Girsa which says that a "Davar she'Eino Mesuyam" is excluded from the law of Tashlumei Kefel is the correct Girsa, since that indeed is a Chidush, because without the verse such an item would have been included in the law of Tashlumei Kefel.

Is there any way to explain the Gemara based on the alternate Girsa? Moreover, how is the Girsa of our text, which emphasizes that the Chidush is that a "Davar ha'Mesuyam" is included in Kefel, to be understood? Why would one have thought that such an item is not included?

(a) REBBI AKIVA EIGER (in GILYON HA'SHAS 63a) refers to the ROSH in Kidushin (1:2). The Rosh there explains that when the Gemara says (according to that Girsa), "to include a Davar she'Eino Mesuyam," the intention is not to include such an item in the law of Tashlumei Kefel, but rather to exclude such an item. It is as if the Gemara is saying that such an item is included in the exclusion from Tashlumei Kefel.

This explanation, however, does not explain the Girsa of our texts. Why does the Gemara say that the verse includes a "Davar ha'Mesuyam" in the law of Tashlumei Kefel? Why would one have thought that such an item is not included? The Gemara cannot mean to say that such an item is excluded (as the Rosh explains for the Girsa of "to include a Davar she'Eino Mesuyam"), since such an item certainly is included in the law of Kefel.

(b) TOSFOS RABEINU PERETZ explains that our Girsa means that a "Davar she'Eino Mesuyam" is specifically excluded, like the intent of the Girsa of Tosfos. The reason it does not state explicitly (like Tosfos' Girsa), "to exclude a Davar she'Eino Mesuyam," seems to be that the Gemara wants to be consistent with the previous Derashah ("to include an item that is not living") and to be consistent with the question of the Gemara, "When 'Chamor' is placed between 'Himatzei' and 'Timatzei,' what is it meant to include?" since the verse is utilized as a "Klal-Prat-Klal" whose purpose is to include items in the Halachah.

QUESTION: The Gemara says that the Pratim ("Shor," "Chamor," and "Seh") in the verse of Tashlumei Kefel (Shemos 22:3) are needed to exclude Karka, Avadim, and Shtaros from the law of Kefel.

According to this conclusion of the Gemara, what is the source that a "Davar she'Eino Mesuyam" is excluded from the law of Kefel? Earlier, the Gemara excludes it from the Prat of "Chamor," but now that the Prat of "Chamor" is being used to exclude something else, what excludes a "Davar she'Eino Mesuyam" from the law of Kefel?

(a) TOSFOS RABEINU PERETZ answers that once the Torah has taught that a "Davar she'Eino Mesuyam" is excluded from Kefel in the case of "To'en Ta'anas Ganav" (with the Prat of "Salmah" in Shemos 22:8; see 63a and Insights to 63:2), it is known that it is excluded in the case of an ordinary Ganav as well. That is, the exclusion of a "Davar she'Eino Mesuyam" from Kefel in the case of a Ganav may be learned from its exclusion in the case of "To'en Ta'anas Ganav."

In contrast, Karka, Avadim, and Shtaros need a special Mi'ut in both cases, the case of "To'en Ta'anas Ganav" and the case of an ordinary Ganav, because one case cannot be derived from the other. In the case of an ordinary Ganav, one would have thought that the Ganav is obligated to pay Kefel for stealing those items since he committed an actual deed of Geneivah. On the other hand, had the Torah taught the exclusion of those items from Kefel only in the case of a Ganav, one would have thought that one who is "To'en Ta'anas Ganav" must pay Kefel for those items because he made a Shevu'ah. Therefore, the Torah needs to teach in both cases that these items are excluded from the law of Kefel.

(b) Tosfos Rabeinu Peretz answers further that once the Torah has taught that Ganav and "To'en Ta'anas Ganav" are the same with regard to the Mi'ut of Karka, Avadim, and Shtaros by writing Mi'utim in both cases, the laws of Ganav can be derived from the laws of "To'en Ta'anas Ganav" with regard to "Davar she'Eino Mesuyam." When the Gemara attempted to exclude this item from the verse of Ganav, that was before it was known that the laws of Ganav could be learned from the laws of "To'en Ta'anas Ganav."