ACQUISITION THROUGH DESPAIR (cont.)
Answer: This is like Rava explained (elsewhere), because he repeated his (intent to) sin.
Question (Beraisa): "He will slaughter or sell it" - just like slaughter is irreversible, also the sale.
Question: When is this?
If it was before despair, why is the sale irreversible?!
Answer: Rather, it was after despair.
(Summation of question): If despair acquires, why does he pay four and five? He slaughters or sells his own animal!
Answer: The Beraisa said that the sale is irreversible like Rav Nachman explained (elsewhere), to exclude a case when he only sold it for 30 days. (However, one is liable before despair, even though the sale is invalid.)
Question (Beraisa): If Reuven stole an animal, and Shimon stole it from him, Reuven pays the (extra payment of) Kefel, and Shimon only pays principal.
If Reuven stole an animal and sold it, then Shimon stole it, Reuven pays four and five, and Shimon pays Kefel.
If Reuven stole an animal and slaughtered it, then Shimon stole it, Reuven pays four and five, and Shimon pays only principal.
Question #1: In the middle case (Reuven stole and sold, then Shimon stole). When did Reuven sell?
If it was before despair, why does Shimon pay Kefel? All agree that one who buys from Reuven does not acquire through a mere change of domain, without despair!
Answer: Rather, it was after despair.
(Summation of question): If despair acquires, why does he pay four and five? He slaughters or sells his own animal!
Question #2: In the Reisha (Reuven stole and sold, then Shimon stole, and we established that the Beraisa is after despair), if a thief acquires through despair, why doesn't Shimon pay Kefel?
Counter-question (Rava): There is a mistake in the Beraisa!
The Seifa says that if Reuven stole an animal and slaughtered it, then Shimon stole it, Reuven pays four and five, and Shimon pays only principal;
All agree that one acquires through a change. Shimon should pay Kefel (to Reuven)!
Answer #1 (to Questions (g) and (h) - Rava): Rather, the Beraisa discusses before despair. The laws of the last two cases must be switched. They say as follows:
If Reuven stole an animal and sold it, then Shimon stole it, Reuven pays four and five, and Shimon only pays principal, because a change in domain without despair does not acquire;
If Reuven stole an animal and slaughtered it, then Shimon stole it, Reuven pays four and five, and Shimon pays Kefel, because Reuven acquired through change.
Answer #2 (to Question (h) - Rav Papa): We need not switch the cases. The Seifa is like Beis Shamai, who say that one does not acquire through a change.
Question: If so, the first two clauses contradict Rav!
Answer #3 (Rav Zvid): In the entire Beraisa, Reuven slaughtered or sold before despair. The case is, the owner despaired when the buyer had it;
This is not because despair acquires only together with a change of domain. Really, despair acquires by itself;
The Beraisa discusses when he despaired when the buyer had it, for this is the only way in which the first thief pays four and five, and the latter pays Kefel.
SELLING BEFORE DESPAIR [line 35]
(Rav Nachman): If a thief sold before despair, he is liable (four and five);
(Rav Sheshes): He is exempt (and pays only Kefel).
Rav Nachman learns from "and will sell it" - whether before or after despair;
Rav Sheshes says, he is liable only when the sale is valid, i.e. after despair;
This is like the liability for slaughter, in which his action accomplished something.
Support (Rav Sheshes, for himself - Beraisa - R. Akiva): The Torah said that one who slaughters or sells pays four and five, because he entrenched himself in sin.
Question: When did he slaughter or sell?
If it was before despair, (regarding selling), he did not go deeper in sin (the sale does nothing)!
Answer: Rather, it was after despair.
Rejection (Rava): Really, it was before despair. He is punished for repeating his (intent to) sin.
Question (Beraisa): "He will slaughter or sell it" - just like slaughter is irreversible, also the sale.
Question: When is this?
If it was before despair, why is the sale irreversible?!
Answer: Rather, it was after despair. This shows that one is liable only after despair!
Answer (Rav Nachman): The Beraisa said that the sale is irreversible to exclude a case when he only sold it for 30 days. (However, one is liable before despair, even though the sale is invalid.)
Also R. Elazar says that if he sells before despair, he is exempt.
(R. Elazar): We can prove that people are assumed to despair when something is covertly stolen, from the obligation to pay four and five.
If we could not assume that he despaired, why would he be liable for selling?!
Suggestion: Perhaps he is liable even if there was no despair!
Rejection: It must be like slaughter, which accomplishes something. This is only after despair.
Question: Perhaps he pays four and five only when we heard that the owner despaired, but normally, we do not assume there was despair!
Rejection: It is like slaughter, for which he is liable immediately (even before we hear that the owner despaired).
(R. Yochanan): We can learn from kidnapping. One is liable without despair (the victim does not despair from escaping)!
Inference: R. Yochanan holds that one is liable (four and five) before despair.
SELLING BEFORE DESPAIR [line 13]
Question: Is one liable also after despair?
Answer #1 (R. Yochanan): Yes.
Answer #2 (Reish Lakish): No. The thief acquires it, he slaughters or sells his own animal.
Question (R. Yochanan - Mishnah): If one stole an animal and made it Hekdesh and then slaughtered it, he pays Kefel, but not four and five.
Question: When is this?
If it is before despair, it does not become Hekdesh! "A man who will make his house Hekdesh" - one can make only his own things Hekdesh!
Answer: Rather, it is after despair. He is exempt only because he made it Hekdesh, and he slaughtered a Hekdesh animal;
Had he not made it Hekdesh, he would be liable. We do not say that he slaughters or sells his own animal!
Answer (Reish Lakish): The case is, the owner made it Hekdesh in the thief's house.
Objection: It would not become Hekdesh!
(R. Yochanan): If something was stolen, and the owner did not despair, neither the thief nor owner can make it Hekdesh;
The thief cannot, for it is not his. The owner cannot, for it is in his Reshus (under his control)!
Answer: Reish Lakish holds like Tzenu'im (the pious ones, who were concerned lest people taking Shemitah produce (or stealing) from the Tzenu'im's fields unknowingly take Reva'i (fruits of a tree in its fourth year, which must be eaten in Yerushalayim or redeemed));
(Mishnah): The Tzenu'im would take coins and say 'whatever (Reva'i) was gathered from my field is redeemed on these coins.' (Even though it is not in their Reshus, they can redeem it. Likewise, one can be Makdish something not in his Reshus!)
Question: If the owner made it Hekdesh, he got his animal back. Why does the thief pay Kefel?
Answer: The case is, he was Makdish it after the trial.
Question: What is the case?
If the judges told him 'go give to him', even if he didn't make it Hekdesh, he would be exempt!
(Rava): If the judges told him 'go give to him' and he slaughtered or sold, he is exempt.
Question: What is the reason?
Answer: Once the case was settled, he is like an open robber, who does not pay four and five.
(Rava): If the judges told him 'you are obligated to give him' and he slaughtered or sold, he is liable.
Question: What is the reason?
Answer: Since they did not yet say to carry out the verdict, he is like a thief, who pays four and five.
Answer: The case is, the judges told him 'go give him.'