Clarification: It implies here that it is more logical to declare Asur wheat that one makes into flour more than the animals' babies.

Question: In Perek Kol ha'Tzelamim (Avodah-Zarah, Daf 47a; See Tosfos DH 'Hacha'), it implies the opposite - when, in connection with 'Yesh Shinuy be'Ne'evad O Lo', the Gemara wants to say that if someone bows down to wheat, the flour is permitted to be used for a Minchah-offering' ...

Question (cont.): ... even though we say 'Ibru ve'li'Besof Nirve'u, Divrei ha'Kol Asurim'?

Reason: ... since there it was originally an animal and that is what it still is, only the door is closed in front of it (as it were); whereas here it was initially wheat and it has now become flour.

Refuted Answer: And one cannot answer that the reason that we permit the baby of the Esnan speaks where he gave it to her and it became pregnant only afterwards ...

Refutation: Because in Perek Kol ha'Asurin (Temurah, Daf 30b, See Tosfos there DH 'de'Nicha') it implies that we permit the baby of the Esnan under the same circumstances as the baby of the animal that was raped (mentioned there).

Answer: There to be sure, there is more reason to permit wheat that has been turned into flour than the baby of the animal that was raped ...

Reason: ... since the animal and its baby were raped, only it is as if the door was closed in front of it ...

Answer (cont.): ... whereas in the case of Esnan, she really wants flour, but as far as the animal is concerned, she wants the cow, and not the baby.

Explanation #1: The Ri explains that - concerning 'T'leh' that became a ram or a weak animal that one fattened, or vice-versa, one pays double or four or five times according to the original price, like the Keren (the principle) ...

Explanation #1 (cont.): ... whereas 'Damim' - where the price went up or went down, one pays according to its current value;

Explanation #1 (concl.): In other words, one assesses the value of the lamb at the time of the theft, according to how large or small it was when it was stolen, but according to how expensive or cheap it has become now (when they go to Beis-Din).

Reason of 'Tela'im': The reason of 'Tela'im' is because he can say to the owner 'Was it an ox that I stole from you?' and in the case where he fattened it 'Did I steal a fat ox from you?'

Reason of 'Tela'im' (cont.): ... whereas by 'Damim', he cannot say to him "Did I steal an expensive ox from you?'

Reason ... Extension: Also the Pasuk mentions the body of "Tzon u'Bakar", and the Gemara later (on Daf 67b) learns from this that someone who steals an ox worth a Manah should not pay five weak oxen, since the Torah writes "Instead of it", implying instead of the body of the ox.

Reason ... Extension: And (by the same token) because the body of the ox is mentioned in the Pasuk, the Gemara says 'Tela'im ke'de'Me'ikara' ...

Implied Question: Even though the Arba'ah va'Chamishah only comes into effect from the time of the Shechitah (or the Mechirah)?

Answer: Nevertheless, the theft caused it too, since 'If there would be no Geneivah there would be no Shechitah or sale either'.

Reason of 'Damim': 'Damim' on the other hand, which is dependent on the assessment of Beis-Din, and is also not mentioned in the Torah, it is a logical to confine 'Revivng the Keren like it was when it was stolen' to the Keren exclusively ...

Reason of 'Damim' (cont.): ... and not to the Arba'ah va'Chamishah - which he pays according to its value at the time when they go to Beis-Din - when the Beis-Din assess it.

Explanation #2: Rabeinu Tam however, who maintains that there is no difference between 'Tela'im' (per se)' and 'Yukra ve'Zula', interprets 'Tela'im' as the lambs mentioned in the Beraisa - a lamb that became a ram, which changed for the better; that is where he pays according to the original price ...

Explanation #2 (cont.): And the same applies to 'Yukra ve'Zula, where the animal was originally worth one Zuz and then went up to four; there too, he pays according to the original price ...

Reason: ... seeing as Rav did not say that one should be strict with regard to Arba'ah va'Chamishah.

Explanation #2 (cont.): ... whereas 'Damim' is referring to the 'Damim' about which Rav speaks - where the animal was originally worth four Zuz and then went down to one - a change for the worse. That is where Rav said that 'he pays according to what it is worth now.

Explanation #2 (concl.): ... and the same with 'Tela'im', if they were fat and they became weak, there too, he pays according to their current value.

Implied Question: ... and when the Gemara said earlier (on Daf 65a) 'Shemeinah ve'Hikchishah, Ke'ein she'Ganav' ...

Answer: ... it speaks exclusively where he weakened it with his hands.

Clarification: Even if one shore the Shi'ur of five lambs together, in which case the obligation of Reishis ha'Gez comes into effect, he is Patur should he dye it ...

Precedent: ... like we find at the beginning of 'ha'Gozel Kamah (later, on Daf 94a and 94b) with regard to Pe'ah, where the Mitzvah is confined to standing corn, and if he changes it, according to the opinion that 'Shinuy acquires', he is Patur.

Question: What the Gemara cites there, that 'If he shears it bit by bit and dyes it, he is Patur' ...

Question (cont.): ... why does it say 'bit by bit', when even if he shears it all in one go and dyes it, he is Patur?

Answer: Because there even if he dyed some of it and left some of it, he is Patur even on the part that he did not dye, because the Chiyuv of Reishis ha'Gez did not take effect on him, since they do not combine ...

Answer (cont.): ... whereas in our case, where he shore a full Shi'ur to begin with, and became Chayav to give it to the Kohen, he is only Patur if he dyes all of it, but if he left some of it, that what he left is subject to Reishis ha'Gez, even if it is less than the Shi'ur ...

Reason: ... since it had already become Chayav,

Refuted Explanation: One cannot explain that he dyed the portion of the Kohen that he set aside for him from the shearing ...

Refutation: ... because 'setting aside' is not applicable as it is by T'rumah, by which it is ...

Refutation (cont.): ... whereas setting aside of wool of Reishis ha'Gez is futile, and it is as if he did not set it aside.

Explanation: The Ri says that we learn that Yi'ush acquires by Aveidah from what the Gemara says in 'Eilu Metzi'os' (Bava Metzi'a, Daf 27a & 27b) 'Just as a garment is special in that it has Simanim and claimants' ...

Explanation (cont.): ... meaning that because it has Simanim it has claimants, since, due to the fact that it has a Siman, the owner does not give up on it.

Refuted Explanation: And not as Rashi explains there 'it has claimants' to mean that it is not Hefker, since a garment is something that is manufactured by man ...

Refutation: Because that would not require a Pasuk, since it is obvious that one is Patur from returning something that is Hefker ...

Reason: ... since who will return it to?

Question: Rabeinu Tam asks that, according to the opinion (in Bava Metzi'a, Daf 27a) that holds 'Simanim are not min ha'Torah', irrespective of whether an article has a Si'man or not, one may only return it via witnesses ...

Question (cont.): ... in that case, just as a person gives up hope on an article that does not have a Si'man, so too will he give up hope on an article which does, seeing as either way, one only returns it via witnesses ...

Question (concl.): ... in which case, one will never return a lost article?

Answer: Even though Simanim are not mi'd'Oraysa, and one only returns an article via witnesses, nevertheless, the owner does not give up hope on an article that has a Si'man, because he asks people whether they have seen the Talis that he lost, that has such and such Simanim.

Answer (cont.): ... and it is only when there are no Simanim that he gives up hope, because he does not know what to ask them, and he does not expect to find witnesses any time soon.

Question: Why does the Gemara there on Amud Beis) then push to answer, according to the opinion that Simanim are not mid'Oraysa, that it mentions Simanim just by the way'? Why can one not say that it mentions them since it is because the article has Simanim that the owner does not give up hope?

Answer: Because if not for the fact that Simanim are mi'd'Oraysa, it should not have mentioned them at all ...

Reason: ... and all it needed to say was 'Just as a garment is special in that it has claimants, and we would have automatically understood that that is on account of Simanim.

Implied Question: Even though Yi'ush is not effective by a lost article, once it comes into his hands ...

Source #1: ... as the Gemara states 'Isn't it a fact that, since the owner was Meya'esh from the article before it came to the hands of the finder, the latter acquires it?'

Source #2: ... and as the Gemara says explicitly in 'Eilu Metzi'os' (Bava Metzi'a, Daf 21b).

Answer: Nevertheless, the Gemara it is justified in learning that Yi'ush does acquire by Gezel even after it comes to his hands ...

Reason: ... because by a Mtzi'ah too, granted he would not acquire the article completely - to the extent that he would not need to return it at all, seeing as he was already obligated to return it ...

Reason (cont.): ... he would nevertheless acquire it with regard to only being Chayav to pay the article's value (and not the article itself), just like by Gezel.

Inference: From here it is implied that Yi'ush is not completely like Hefker ...

Proof: ... because if it was, even after it comes to his hand be'Isur he ought to acquire it from Hefker.

Clarification: And when the Gemara says in 'ha'Shole'ach' (Gitin, Daf 39b) that, assuming someone who declares his Eved, need not give him a Get Shichrur, if he is Meya'esh from his Eved, he does not require a Get Shichrur either ...

Refuted Reason: ... it is not because Yi'ush is Hefker ...

Refutation: ... because, if it was, one ought to acquire the object, even if the owner is Meya'esh after it came to the finder's hand.

Authentic Reason: The reason therefore is - because just as Hefker does not require a Get Shichrur since the master has no more jurisdiction over him, so too, does he have no jurisdiction over him once he is Meya'esh.

Clarification: Because it is not Kadosh, even if he sanctified it.

Source: ... due to the principle that 'If someone steals something and the owner has not given up hope, neither the owner nor the Ganav are able to declare it Hekdesh' (as the Gemara will say latter on Daf 69a).

Explanation: Because if it was Koneh, it would be considered "his Korban" and would not be Pasul on account of a Mitzvah ha'Ba'ah ba'Aveirah' ...

Reason: ... since he acquired it before he declared it Heekdesh, as Tosfos will explain later (on Daf 67a, DH 'Amar Ula').

Explanation (cont.): But if he would not acquire it, it would be Pasul ...

Conclusion: ... although it would nevertheless be Kadosh (See Mesores ha'Shas) ...

Implied Question: Even though the Gemara does not yet know the reason of 'Shinuy ha'Shem, as the Gemara says (only) later 'Initially it was Chulin and now it is Hekdesh'.

Answer: ... nevertheless, there is Yi'ush and Shinuy R'shus (at least) regarding those Korbanos for which the Gazlan is not responsible (See Hagahos ha'Bach & Hagahos ve'Tziyunim).

Refuted Answer #1: The Gemara does not want to establish the Beraisa like Beis Shamai who says that the Shinuy remains in its place (is not Koneh) ...

Implied Question: ... even though there are other Tana'im who concur with them, in 'ha'Gozel Kama (later, Daf 93a) ...

Refutation: ... nevertheless, the Halachah is like Beis Hillel that 'Shinuy aquires'.

Support: In fact there too, Rava concludes that all the Tana'im there concur with Beis Hillel, and the Gemara throughout Shas holds like that.

Refuted Answer #2: Nor does the Gemara want to establish the case by a Shinuy that is retractable, which some say is not Koneh ...

Refutation: ... because even Rav Yosef who argues with Rabah, only argues with him in connection with Yi'ush on its own, but as far as Shinuy Ma'aseh is concerned, even if it is a retractable one - about which Rabah is speaking, as Tosfos explained above (on Daf 65b DH 'Hein'), he dos not argue.

Explanation: Rashi implies that what the Gemara means is that he stole the complete bed of his friend, it is a Gezeiras ha'Kasuv that it is not Metamei Mishkav.

Question #1: This is very difficult to understand?

Question #2: Furthermore, asks the Rashbam, the Mishnah in Taharos (7:6) states, in connection with 'Ganavim who enter a house', that 'The Mishkavos and the Mishavos (in the house) are Tahor; but if they are accompanied by a Nochri or a woman, everything is Tamei' ...

Reason: ... since the woman may be a Nidah and a Nochri is Metamei like a Zav in all circumstances ...

Question #2 (cont.): ... implying that one is Metamei Mishkav and Moshav even if something that belongs to somebody else?

Answer: Though (regarding this question) one can answer that that is only mi'de'Rabanan.

Question #3: And it is also difficult from the Toras Kohanim (in Parshas Metzora), which cites the following Machlokes between Rebbi Shimon and the Rabanan, regarding 'Ganav and Gazlan' mentioned shortly.

The Tana Kama: "Mishkavo", 've'Lo ha'Gazul'; "Yitma", 'to preclude one that is stolen'.

Rebbi Shimon: Rebbi Shimon says "Mishkavo", 've'Lo ha'Ganuv'; "Yitma", 'to preclude one that is Gazul'.

Question #3 (cont.): ... They said to him 'On what grounds did you include theone and exclude the other'? And he replied that he includes articles that the owner has despaired of retrieving ... '.

Question #3 (concl.): Now since the Gemara cites the Machlokes Rebbi Shimon and the Rabanan, it implies that the reason is because Machshavah does not render it Tamei, like the case cite shortly ...

Reason: ... because the designation of a Gazlan is not considered designation.

Explanation #2: The Ri therefore explains 'de'Gazal Mishkav de'Chavreih' to mean that he stole skins belonging to the owner which lack only designation and no other preparation; so all they need is Machshavah ...

Explanation #2 (cont.): ... in which case they are similar to the case of 'someone who steals his friend's Korban' ...

Reason: ... because if he were to steal his friend's animal that still required sanctifying, it would be considered lacking an act, similar to 'wool which one makes into a bed'.

Explanation #2 (concl.): ... whereas if he stole (whether Gazal or Ganav) his friend's complete bed, it would be Metamai Mishkav according to all opinions.

Implied Question: And even though the case of "Mishkavo", 've'Lo ha'Gazul' is speaking before Yi'ush, and "Korbano", 've'Lo ha'Gazul', after Yi'ush ...

Answer: ... one doesn't need to worry if the two cases are not (totally) compatible.

Question: Why does one need a Pasuk? Because if it is speaking about a Chatas, then even if he himself ate Cheilev yesterday and set aside a Korban, he cannot attain atonement with that Korban for Cheilev that he ate today? ...

Question (cont.): ... whereas if it speaking about an Olah or a Shelamim, the Gemara says in Pesachim (Daf 89b) that if someone sells his Olah or his Shelamim, his sale is invalid?

Answer: It would therefore seem correct to establish the case by a Korban Pesach, which the owner is able to appoint others to share with him and to sell, as is evident there ...

Question: But the Pasuk under discussion is talking about an Olah?

Answer: Unless we establish the Pasuk by a Pesach, by means of the principle 'Im Eino Inyan' (If the Pasuk is not needed for itself, apply it to where it is needed).

Refuted Answer: And we cannot answer that the Pasuk is coming to invalidate the Korban ...

Refutation: ... since the Gemara says later (on Daf 76a) in connection with a Ganav - that if one Shechts un-blemished animals inside the Azarah) in the name of the owner, the animal has been returned (the owner is Yotzei).

Clarification: And it is effective combined with Yi'ush, but not on its own ...

Reason: ... since it is not a Shinuy Ma'aseh.

Qualification: However, there where he had initially in mind to cut it, the Gemara says in Perek Dam Chatas (Zevachim, Daf 94a) that it remains Tahor until he actually cuts it.

Conclusion: Nevertheless, the Gemara extrapolates here that since it is fit to use without cutting it, cutting it is not considered a Shinuy Ma'aseh at all.

Question: Even without the case of 'Itzba', why does the Gemara not ask from here, from the fact that Machshavah is effective, a proof that Yi'ush is Koneh?

Answer: Perhaps the Gemara is speaking here about the owner himself (and not about the Ganav).

Clarification: It is not completely like Shinuy Ma'aseh - since Shinuy Ma'aseh acquires by itself ...

Source: ... as is evident above and later (on Daf 68a) in connection with 'Ganav ve'Tavach u'Ba Acher ve'Ganvo?' ...

Source (cont.): ... where the Gemara asks 'Is there anyone who holds that Shinuy is not Koneh?' ...

Clarification (concl.): ... whereas Shinuy ha'Shem on its own is not Koneh without Yi'ush or Shinuy Ma'aseh.