OPINIONS: Rav rules that when a Ganav is obligated to pay Tashlumei Arba'ah v'Chamishah, he pays four or five times the value of the animal he stole based on its value at the time of "Ha'amadah ba'Din."

Tashlumei Arba'ah v'Chamishah includes the Kefel which the Ganav must pay. Are both the value of the Kefel and the value of the Arba'ah v'Chamishah determined by the animal's value at the time of "Ha'amadah ba'Din," which Beis Din issues its verdict on the matter, or are the two values judged differently? Perhaps only the Kefel is based on the value at the time of "Ha'amadah ba'Din," while the Arba'ah v'Chamishah is based on the value of the animal at the time it was slaughtered (Tevichah) or sold (Mechirah).

(a) The SHITAH MEKUBETZES explains that the value of the Tashlumei Arba'ah v'Chamishah is also determined based on the value at the time of "Ha'amadah ba'Din." The logic for this is that had the Ganav admitted to his act at any point before "Ha'amadah ba'Din," he would have been exempt ("Modeh b'Kenas Patur"). Therefore, the obligation to pay the Arba'ah v'Chamishah takes effect not at the time of the Geneivah or at the time of the slaughter or sale, but at the time of "Ha'amadah ba'Din," when Beis Din obligates him to pay.

(b) The ROSH (6:2) writes that only the Kefel is assessed based on the value at the time of the actual "Ha'amadah ba'Din." The time of "Ha'amadah ba'Din" for determining the Arba'ah v'Chamishah is the time of the slaughter or sale, for it is for the act of that moment that the Ganav is obligated to pay Arba'ah v'Chamishah (for it is a new act, independent of his initial act of Geneivah). Consequently, if the animal's value appreciated before the time of "Ha'amadah ba'Din," the Ganav does not pay according to the new value of the animal, but he pays according to the value at the time of the slaughter or sale. This is similar to the way the value of the Keren is determined. The Ganav pays the Keren according to its value at the time of the Geneivah, whether the animal or item increased or decreased in value after that moment. Since at the time that it decreased in value the Ganav was not doing anything to it, he is not responsible for the decrease in value. The same applies to the Arba'ah v'Chamishah. Since at the time of "Ha'amadah ba'Din" he was no longer doing anything with the animal, he cannot be obligated to pay according to its value at this moment, but rather he pays according to what its value was at the moment at which he did the act that obligates him (i.e. the slaughter or the sale).

The Rosh's approach, however, is problematic. Why should there be a difference between the Kefel and the Arba'ah v'Chamishah? If he pays according to the value at the time he did the act that obligates him, he should pay Kefel according to the value at the time of the Geneivah, the same way he pays Arba'ah v'Chamishah according to the animal's value at the time of the Tevichah or Mechirah! If, on the other hand, he pays Kefel only according to the value at the time of "Ha'amadah ba'Din" since he could have exempted himself from it until that point and thus the obligation takes effect only when Beis Din obligates him, then the same should apply to the Arba'ah v'Chamishah, from which he also could exempt himself by admitting to it!

Furthermore, the Rosh writes that if the animal increases in value after the slaughter or sale, the Ganav pays only in accordance with its value at the time of the slaughter or sale, because "he did nothing" to it. The same reasoning, however, should apply to the Kefel, since after the act of Geneivah he did nothing to it. Why, then, does the Ganav pay Kefel according to the value of the animal at the time of "Ha'amadah ba'Din"? (See YAM SHEL SHLOMO and Acharonim.)

HA'GAON RAV NAFTALI TROP explains the view of the Rosh by clarifying the difference between Kefel and Arba'ah v'Chamishah as follows. In the case of Kefel, the stolen item has not entirely left the domain of the original owner, since it (the animal) is still in existence, alive and well. Since it has not entirely left the domain of the owner, the Ganav pays Kefel according to the value at "Ha'amadah ba'Din," because until the "Ha'amadah ba'Din" the stolen item is still considered to be within the domain of the owner, and thus the Ganav does not become obligated to pay the Kefel until Beis Din obligates him. In contrast, when the Ganav slaughters or sells the animal, at the moment of the Tevichah or Mechirah he completely removes the animal from the domain of the owner, and at the time of "Ha'amadah ba'Din" the stolen item is no longer within the domain of the owner at all. The obligation, therefore, is entirely a result of what happened at the moment the Ganav slaughtered or sold the animal, and thus the value that he must pay for the Arba'ah v'Chamishah is determined according to the value at that time (the time of Tevichah or Mechirah), the time at which he completely removed the animal from the owner's domain. This explains the difference between the way the value of Kefel is determined and the way the value of Arba'ah v'Chamishah is determined, according to the Rosh.

According to this explanation, the Gemara must mean merely that Kefel can be paid according to the value at "Ha'amadah ba'Din," but it is not necessarily so. In a case in which the item never left the domain of the owner (since it is still in existence in its original form), the Kefel is determined according to the item's value at "Ha'amadah ba'Din," while in a case where the item did leave the domain of the owner (for example, it broke after the Ganav stole it), the Kefel is determined according to the item's value at the time that it left the owner's domain (i.e. at the time that it broke). In contrast, Arba'ah v'Chamishah is always determined according to the value at the time of the Tevichah or Mechirah.

QUESTION: When Rav Sheshes heard Rav's ruling, he responded by saying, "When Rav was napping and falling asleep he said this teaching!"

How could Rav Sheshes, one of the holy Amora'im, say such a seemingly derogatory remark about Rav?

(a) The CHAVOS YA'IR (#152) explains that Rav Sheshes' statement was not one of derision, G-d forbid, but rather one of great adulation and praise to Rav. He was saying that Rav was so great that he never could have much such an error unless he stated his ruling while he was falling asleep. (See also YOSEF DA'AS to Yevamos 24b.)

(b) The IMREI BINAH (Hakdamah, end of footnotes) quotes the RAMA MI'PANO (end of YONAS ILEM) who asserts that "Rav" refers to Rav Aba, who was the closest and most esteemed disciple of Rebbi Shimon bar Yochai, the Tana who mastered the hidden, innermost parts of the Torah. Rav Sheshes knew that all of the words of Rav were based on the hidden parts, the inner essence, of the Torah, even those statements that seemed to be based on the revealed parts of Torah.

The ARIZAL writes that the concept of sleep was created by Hash-m so that a man's Neshamah would leave him and be able to fathom the profound secrets of the upper worlds, which are impossible for a person to comprehend while his Neshamah is confined to his body.

Rav Sheshes understood this, and he said that since he cannot understand at all the words of Rav, undoubtedly Rav must have said these words while he was sleeping, when his Neshamah was able to fathom the profound secrets of the inner-essence of the Torah which cannot be understood by a man while he is awake, while his Neshamah is confined within his body.