2) LEAVING AN ITEM WHOSE OWNERSHIP IS IN DOUBT IN THE HANDS OF NO ONE
QUESTION: The Gemara cites a Mishnah (Yevamos 118b) which discusses a case in which a person stole something from one of five people, each of whom claims to be the object's owner, and the Ganav does not know from which person he stole it. Rebbi Tarfon rules that the Ganav "should place the stolen item among them and leave." The Gemara questions this ruling from the statement of Rebbi Aba bar Zavda, who states that an item which is "Safek Hinu'ach" may not be picked up, and if it was picked up then the person may not return it. Rashi explains that he may not return it to a person who claims to be its owner; rather, it must remain in his possession until the identity of the owner is clarified. The Gemara asks that this Ganav should also be required to keep the stolen item in his possession until the identity of the owner becomes known. Why does Rebbi Tarfon allow him to abandon the object in front of the claimants? The Gemara answers that this indeed is what Rebbi Tarfon rules. Rebbi Tarfon's statement means that the Ganav should first place the stolen item in front of the claimants in Beis Din and instruct them to clarify to whom it belongs. He then should take the item and leave, keeping it in his possession until the owner's identity becomes known.

Why does the Gemara question Rebbi Tarfon's ruling from the statement of Rebbi Aba bar Zavda? It should ask the same question from the Mishnah here (37a) which -- in the case of "Maneh Shelishis" -- teaches that an item whose ownership is in doubt must be left in the possession of the person holding it. (SHITAH MEKUBETZES)

ANSWERS:
(a) The MAHARSHA and MAHARAM SHIF answer that the case of the Mishnah is not comparable to the ruling of Rebbi Tarfon. In the case of the Mishnah, the money of doubtful ownership came into the Shomer's possession in a permissible manner (it was deposited with him). The owner of the money is at fault for the confusion; he should have made it clear that the additional Maneh was his. Therefore, the Shomer may keep the money until the owner brings proof that it belongs to him. In contrast, in the case of the Ganav, he acquired the item in a prohibited manner (he stole it). Thus, even if the Shomer may keep the item in his possession, the Ganav may be obligated to remove it from his possession. This is why the Gemara questions Rebbi Tarfon's ruling from the statement of Rebbi Aba bar Zavda, which also discusses a case of someone who obtained an object in a prohibited manner (he took a Metzi'ah that he should have left in its place).

This answer suffices only according to the opinion that maintains that the Shomer keeps the third Maneh until the owner's identity is clarified. According to that opinion, it makes sense to differentiate between the case of the Mishnah here and the case of a Ganav who stole from one of five people. However, according to the opinion (that of the MORDECHAI cited by the REMA CM 300:1) that the third Maneh is left in escrow in Beis Din, there should be no difference between the case of the Mishnah and the case of the Ganav who stole from one of five people. If, in the case of the Mishnah, the third Maneh is left in escrow in Beis Din, then certainly the Ganav should leave the stolen item in Beis Din and not abandon it in front of the claimants!

(b) The MA'AYAN HA'CHOCHMAH answers based on the RITVA as follows. The Gemara could not have questioned Rebbi Tarfon's ruling from the Mishnah because in the case of the Mishnah, if the Shomer were to leave the third Maneh in front of the claimants, the claimant who is lying might take it for himself. Thus, if the Shomer leaves the money in front of both claimants, he may be aiding the liar in his unlawful gain. It is better that the third Maneh be left in Beis Din so that there will not be a possibility that the liar will obtain it. (Although the true owner will also be unable to retrieve it, at least he will retain a chance of retrieving it in the future). A Ganav, however, has an obligation to return any item that he stole, and as long as that obligation has not been fulfilled, the item is in his possession b'Isur, illegally. Therefore, there are grounds to suggest that he should leave the item in front of the claimants, because he thereby will create a possibility that the rightful owner will regain it, which would absolve the Ganav of the sin he committed. In contrast, if he keeps the item in his own possession or leaves it in Beis Din, then he certainly will not fulfill his obligation to return it.

(c) The ERECH SHAI answers that the Gemara could not question Rebbi Tarfon's ruling based on the Mishnah, because there is a basic difference between a stolen item and a Pikadon. In the case of a Pikadon, the Shomer's possession of the item that the owner deposited is considered a Chezkas Mamon on behalf of the owner. Thus, in the Mishnah's case, the Shomer's custody of the money gives each of the owners a Chezkas Mamon on it. (This is like the opinion of Tosfos at the beginning of the Masechta. Tosfos writes that the rule of "Kol d'Alim Gavar" is not applied when both claimants are holding on to the item, because they both have a Chezkas Mamon.) In the case of the third Maneh, it is as if each claimant is holding the Maneh because the Shomer has possession of it. Therefore, the Shomer is not permitted to remove the Maneh from his possession, because doing so would remove the Maneh from the Chazakah of its rightful owner.

In contrast, a Ganav who has a stolen item is not considered to be holding it on behalf of the owner, which would give the owner a Chezkas Mamon on the item. (This is evident from the fact that the owner cannot be Makdish the item or sell it while it is in the Ganav's possession). Therefore, it might have been logical to allow the Ganav to leave the stolen item in front of the different claimants and let the rule of "Kol d'Alim Gavar" take effect.

This is why the Gemara questions Rebbi Tarfon's ruling from Rebbi Aba bar Zavda's statement and not from the Mishnah. In Rebbi Aba bar Zavda's case of "Safek Hinu'ach," the finder is not holding the object on behalf of anyone, and yet he still may not remove it from his possession. The Gemara asks that the same should apply to the case of the Ganav. (I. Alsheich)