Rav Yochanan (unlike Reish Lakish) opines that Yi'ush alone does not grant ownership to the Ganav. Why is it then, that according to Rav Yochanan following Yi'ush the Ganav can be Makdish the stolen item, and then be Patur from 4/5 because he shechted or sold that which is Hekdesh's (based on the Beraisa he brought to attack Reish Lakish). Is it not Rav Yochanan himself who holds that one cannot be Makdish something that doesn't belong to him?!
This reminds me of the Sugya of Tokfo Kohen, where the Gemara suggests the concept of "Amirah l'Hekdesh is k'Mesiraso l'Hedyot". Does Rav Yochanan fit with the other Tzad brought in Tokfo Kohen that "Mah Beiso b'Reshuso Af Kol b'Reshuso"(mentioned in our Sugya). This is a complicated topic; could you please elaborate on the subject and explain Rav Yochanan's stance on being Makdish a stolen item after Yi'ush. Thank You
Aschi Dick, Toronto Canada
(1) The reason why Yi'ush works when he later is Makdish the stolen item, is because this is now not Yi'ush alone, but rather Yi'ush together with "Shinuy Reshus" - a change of ownership. Rebbi Yochanan maintains that even though "Yi'ush Kedi" - Yi'ush alone - does not effect a transaction, nevertheless Yi'ush and Shinuy Reshus is Koneh.
(a) This question is discussed by the Ketzos ha'Choshen 362:1 who cites the Rashba Gitin 55b DH v'I who asks if Yi'ush Kedi is not Koneh then how can the Ganav be Makdish the item? The Rashba answers that since there is (1) a "Shinuy Hash-m" - a change of name when one is Makdish an object [this is based on the Gemara above 67a that before the Hekdesh it was called Chulin - a profane item - but afterwards it acquires the name of Hekdesh] or (2) alternatively there is a "Shinuy Reshus" - originally it belonged to the owners but now it belongs to the Beis Hamikdash. This means that the Hekdesh and the Kinyan occur simultaneously. In other words the Ganav is able to be Makdish the item because since Yi'ush had already taken place, when the Ganav later does Hekdesh, he acquires the object at the very same split second in time that he is Makdish it, and it follows that it is already considered as his when the Hekdesh takes place so there is no problem any more that one can only Makdish an item which already belongs to him.
(b) The Ketzos ha'Choshen also cites the Ramban in Milchamos Hash-m (below 41a in Rif pages DH u'Mah). The Ramban writes that the reason why Yi'ush and Shinuy Reshus make a Kinyan is because the person who receives the article is considered as "b'Hetera Asi l'Yadei" - when it reached his hands the item was already permitted - in the same way that it is permitted to take a lost object that the owners have already had Yi'ush on.
This is based on the Gemara above 66a which states that an Aveidah is considered b'Hetera Asi l'Yadei because before the finder picked it up, the owners had already had Yi'ush. In contrast when an item is stolen this is considered "b'Isura Asi l'Yadei" because at the time of the theft the owners had not yet been Meya'esh. It follows from this that with a stolen item also, if the owners had already had Yi'ush after it was stolen, then when the Beis Hamikdash acquired the object through the Shinuy Reshus of Hekdesh, it is considered that it was already permitted when it came into the possession of Hekdesh.
(2) Yes, R. Yochanan does fit in with "Mah Beiso b'Reshuso Af Kol b'Reshuso." In fact, near the end of 68b Rebbi Yochanan himself states that if someone stole but the owners had not yet had Yi'ush, then neither the owners or the thief can be Makdish the item because one requires both that the item should belong to the Makdish and also that it is at present in the Makdish's possession. The latter requirement is based on the concept of "Af Kol b'Reshuso" - that if it is not in your possession, you cannot be Makdish it.
The principle of "Amiraso l'Gevohah k'Mesiraso l'Hekdesh" (Bava Metzia end 6a) means that to make Hekdesh take effect one does not have to do a Kinyan but rather it is sufficient merely to say that the item is Hekdesh. Rebbi Yochanan can agree with this, but it can only work if the item is in one's possession at the time one says that it is Hekdesh. The latter is derived from Mah Beiso b'Reshuso and there is no contradiction between these two concepts.
Dovid Bloom
Regarding hagonev achar haganav potur, we find a machlokes between Rav and others if this potur exists specifically before yiush (Rav), or even after yiush (this machlokes depends on whether yiush alone is koneh). According to the view that yiush is not koneh and therefore the second ganev is exempt from kafel even after yiush, why do we not say the opposite, that the second ganev is simultaneously koneh the item with its removal from the first ganev's reshus and therefore yes chayiv kefel.
My question is only according to the Ramban you mentioned, that shinui reshus causes kinyan because the item changes hands after yiush and therefore bhetera Asi leyodei. I ask therefore, that the second ganev should pay kafel even according the bar plugta of Rav because presumably he was koneh the item, seeing that behetera Asi leyodeh (based on the fact that baal was already meyaish and neither was the first ganev koneh the item).
It seems to me that one cannot say b'Hetera Asi l'Yadei concerning the second Ganav because the second Ganav clearly transgressed an Isur by stealing it from the first Ganav since it is forbidden to steal even from a Ganav. When Ramban says b'Hetera Asi l'Yadei this is referring to somebody who bought an item from a Ganav after Yi'ush because the purchaser committed no transgression by buying the article, or alternatively the Beis Hamikdash did no Isur by receiving the stolen item from the Ganav after Yi'ush. In contrast the second Ganav transgressed the Isur of stealing when he stole it from the first Ganav, therefore it is b'Isura Asi l'Yadei.
KOL TUV
Dovid Bloom