QUESTION: The Gemara teaches that if the witnesses of an alleged Shor ha'Niskal are found to be Zomemim, the Shor becomes Hefker and anyone may come and claim it. When the Shor was sentenced to death, the owner relinquished his ownership of it, since a Shor ha'Niskal is Asur b'Hana'ah.

The Gemara here seems to contradict the Gemara in Bava Kama (90b), which discusses how even a Shor ha'Niskal can be judged for monetary damage that it caused (Nezikin), even though it was already sentenced to death for killing a person. The Mishnah earlier in Bava Kama (44b) teaches that a Shor is not judged if its owner was Mafkir or Makdish it after it killed a person. In order to be put to death, the Shor must be the possession of a person (and not Hefker) until after the sentencing (Gemar Din). The Gemara there (13b) applies this requirement to compensation for damages as well; the owner is liable to compensate for damages caused by the Shor only when he owned the Shor at the time of the sentencing.

If an ox becomes Hefker by being sentenced to death, then how can the Gemara in Bava Kama suggest that it be judged for monetary damages when it has already been sentenced to death? A sentenced Shor ha'Niskal is Hefker, and a Shor of Hefker cannot be judged for Nezikin! (KETZOS HA'CHOSHEN 406:2, quoting his brother, RABEINU YEHUDAH KOHEN, in KUNTRUS HA'SEFEIKOS)

(a) REBBI AKIVA EIGER (in Gilyon ha'Shas to Bava Kama 90b) suggests that, at least according to RASHI there, it is possible that being Mafkir a Shor exempts the Shor only from Misah, but it does not exempt the owner from monetary payments. (This is because the verse from which the exemption is derived refers to a Shor that killed a person and is Chayav Misah.)

According to this answer, what does the Gemara earlier in Bava Kama (13b) mean when it applies this principle even to monetary compensation? It seems that, according to Rebbi Akiva Eiger, the Gemara there is discussing only the payment of "Kofer" that is given when the Shor kills a person, while compensation for damages is different and the owner can be obligated to pay even though the Shor is now Hefker. In fact, this must be the intent of the Gemara there, according to Rashi in Bava Kama. Rashi writes that not only does making one's bull Hefker exempt the owner from payment and the bull from Misah, but even selling the bull exempts it from payment and Misah. TOSFOS RABEINU PERETZ (Bava Kama 44b; see Insights there) asks that according to Rashi, how can a person ever be obligated to pay for damages that his Shor caused? The owner can always sell his Shor before it is brought to court and exempt himself from payment, without losing the value of his Shor! It therefore seems logical that Rashi does not exempt a person from payment if the Shor is sold or declared Hefker before the case is brought to court. He exempts the Shor only from Misah, or the owner from Kofer. In neither of these cases will it be in the interest of the owner to sell the Shor, because even if the owner becomes exempt from Kofer by doing so, he still will have to pay compensation, or "Damim" (see Gemara 43a). In addition, he will not be able to sell the Shor in order to exempt it from being killed, since nobody would pay money for a Shor that killed a person. It is worthwhile for the owner to keep the Shor, because of the possibility that the Shor will not be found guilty of killing a person.

(b) The KETZOS HA'CHOSHEN answers that there are two ways for a person's property to become Hefker. The first way is a normal act of Hefker, wherein the owner willingly removes the object from his property. The second way is Ye'ush, wherein the object is unavailable to the person and he gives up hope of ever having use of the object again.

The Ketzos ha'Choshen writes that when the Gemara here in Kerisus says that when the witnesses of the Shor ha'Niskal are found to be Edim Zomemim, anyone may take the Shor (since the Shor is Hefker), the Shor's status of Hefker may be a result of either one of these two methods of making an object Hefker. We may assume that the owner was Mafkir the Shor ha'Niskal, and we also may assume that since the owner thought that he would never have use of the Shor again, he had Ye'ush, rendering the animal Hefker.

However, neither of these methods of making an object Hefker would apply to the case in Bava Kama to exempt the former owner of the Shor from payment for damages. The Ketzos ha'Choshen reasons as follows.

Making an object Hefker is a form of Kinyan, like selling or being Makdish an object. The Gemara teaches that a person cannot sell or be Makdish an object that is not in his domain and is not available to him to use. Examples of things that are not in his domain are items that became lost or stolen, and items that became Asur b'Hana'ah. For this reason, Rashi writes in Bava Kama (45a, DH Eino Mukdash) that after the Gemar Din of a Shor ha'Niskal, the owner cannot be Makdish the Shor. It follows, therefore, that the owner also cannot be Mafkir a Shor ha'Niskal. Why, then, does the Gemara here in Kerisus teach that if the witnesses of the Shor ha'Niskal become Edim Zomemim, the Shor is considered Hefker?

The Ketzos ha'Choshen explains that when the witnesses become Edim Zomemim, retroactively the Shor was available for the owner's use at the time that he was Mafkir it (when he thought that it was a Shor ha'Niskal). Therefore, the Hefker takes effect. In the case of the Gemara in Bava Kama, where the witnesses were not made into Edim Zomemim, the Shor does not become Hefker.

(Other Acharonim argue that as long as the owner had no practical use of the Shor, he cannot be Mafkir or Makdish it, even though retroactively it is determined that the Shor was not Asur b'Hana'ah. See KEHILOS YAKOV to Bava Kama 30:4, and BEIS HA'LEVI 1:48:9.)

However, the second way that an object becomes Hefker should apply to a Shor ha'Niskal. Ye'ush certainly applies even to an object that the owner cannot use. In the case of the Shor ha'Niskal that was already sentenced, since the owner thinks that the Shor will never again become available to him for use, he has Ye'ush! This is a second reason for why it is permitted for anyone to take a Shor ha'Niskal whose witnesses were found to be Edim Zomemim. Similarly, this reason should exempt the owner from paying for damages caused by his Shor ha'Niskal. The Shor should be considered Hefker due to Ye'ush.

The Ketzos ha'Choshen answers that Ye'ush creates only a permit for anyone else to take possession of the object which the owner despaired of having. Ye'ush does not remove the object from the owner's possession and make it Hefker until the moment that someone else takes it. In this respect, it is not similar to a normal form of Hefker, which removes the object from the owner's possession immediately. Therefore, even though the owner of the Shor ha'Niskal had Ye'ush, since the Shor remains in his possession he is not exempt from paying for damages. In the case here in Kerisus, where the witnesses were found to be Edim Zomemim, anyone may take the Shor due to the Ye'ush of the Shor's owner, thereby removing it from the previous owner's possession.

(However, a number of Acharonim disagree with the Ketzos on this point. They maintain that Ye'ush also removes the object from the owner's possession immediately. See DIVREI YECHEZKEL 49:4, and CHAZON ISH, Bava Kama 18:3. See also Insights to Bava Metzia 26:3.)

(c) The CHASAM SOFER (CM 165) and the CHAZON ISH (Bava Kama 3:16) explain that the only time that Hefker exempts the owner of the Shor from paying for damages is when he no longer has any connection to the Shor that caused the damage. However, the owner of a Shor ha'Niskal still has some connection to the Shor, since he has certain responsibilities with regard to his Shor; for example, it is a Mitzvah for the owner to see to it that the Shor is put to death. Therefore, the owner is still considered the legal owner of the Shor with regard to the obligation to pay for damages that it causes.

(d) According to the ROSH (Bava Kama 1:16), it is possible that the Torah exempts the owner from killing the Shor or from paying for damages only because the owner has suffered sufficiently since he lost the Shor by being Mafkir or Makdish it. Hence, the exemption would apply only when the owner was willingly Mafkir or Makdish the Shor. If the owner despaired of having use of the Shor because it became unavailable to him against his will (for example, it became a Shor ha'Niskal, or it became lost or stolen), then the owner might not be exempt from payment since he did not suffer because of the damage that the Shor caused. (See also Insights to Bava Kama 90:3.) (M. KORNFELD)

QUESTION: Reish Lakish (24a) rules that when one receives a gift and says, "Iy Efshi Bah" -- "I do not want it," the gift becomes Hefker, ownerless. RASHI (24a, DH Tibatel) explains that this Halachah applies only to mobile property (Metaltelin); once the object has come into his hands, by saying that he does not want it he obviously means to give it away. This Halachah does not apply to land (Karka) that one receives as a gift, for he never receives it "in his hand." When a person is presented with a gift of land and he says, "I do not want it," his intention presumably is to annul the acquisition of the gift retroactively so that it was never accepted in the first place. Since this annulment cannot take effect, the land does not become Hefker.

The Gemara (24b) questions Reish Lakish's ruling from the Mishnah in Kesuvos (83a) that teaches that when one of the owners of a field says to his partner, "I no longer have any legal ownership in this field," his words are meaningless. Similarly, in the case of Reish Lakish, a person should not be able to relinquish his ownership from an object merely by saying that he does not want it.

What is the Gemara's question? Reish Lakish is referring only to Metaltelin, as Rashi explains, and not to land, while the Mishnah in Kesuvos is discussing land!

ANSWER: TOSFOS in Gitin (32b) explains that Rashi means that this type of statement is not effective for land when the land was given as a gift. In such a case, it is assumed that the recipient's intention is to annul the gift retroactively, which he does not have the power to do. The Mishnah in Kesuvos, however, is discussing a case in which one already owned land in a partnership (for example, it was purchased jointly, or brothers inherited it). When one of the partners says that he does not want the land, it obviously is not his intention to say that he wants the gift to be annulled retroactively (because it was not a gift). His intention is only to make the land Hefker, and yet his statement clearly is ineffective. Thus, the Mishnah there indeed disproves Reish Lakish's rulings. (See more with regard to relinquishing one's right to receive a benefit in Insights to Kesuvos 83:2.)

QUESTION: The Mishnah states that when one designated an animal as a Korban Asham Taluy and then, after the animal was slaughtered but before the Zerikas ha'Dam was performed, he discovered that he in fact did not commit the transgression in question, the flesh of the animal must be burned at the Beis ha'Sereifah. In contrast, when one designated an animal as an Asham Vadai and then discovered that he did not sin, the animal must be buried; only when he discovered after the Zerikas ha'Dam that he did not sin must the flesh go to the Beis ha'Sereifah to be burned.

The Gemara questions the Mishnah's statements about the flesh of an Asham Taluy and the flesh of an Asham Vadai. Why is the flesh of an Asham Taluy not buried like the flesh of an Asham Vadai, when he finds out before the Zerikas ha'Dam that he did not sin? Moreover, why is the flesh of an Asham Vadai burned, and not buried, when he finds out that he sinned after the Zerikas ha'Dam?

Rav Ashi answers that the flesh of an Asham Vadai must be burned, like Kodshim that became invalidated (and not like Chulin slaughtered as a Korban, which must be buried), because "it appears like an invalidated Korban (Zevach Pasul)." Once the blood has been sprinkled on the Mizbe'ach, everyone sees that it is a Korban. Therefore, even if he finds out that he did not sin and his Asham Vadai turned out to be Chulin and not a Korban, its flesh must be burned because to onlookers it looks like a Korban.

Rav Ashi's answer seems to address only the second question of the Gemara. How does it answer the first question? Why is the flesh of an Asham Taluy not buried when the person found out before the Zerikas ha'Dam that he did not sin?

(a) RASHI (DH Rav Ashi) implies that Rav Ashi's intention was to answer only the second question. To answer the first question, we must rely on what Rabah said earlier. Rabah said that in the case of an Asham Taluy, since its owner is concerned that he may have sinned, he has full and total intention to sanctify the animal with definite sanctity, even if he discovers that he did not sin. For this reason, the animal requires Sereifah, and burial does not suffice.

(b) In his text of the Gemara, TOSFOS (DH Rav Ashi) apparently had the wording that is included in the parentheses in our text. Tosfos understands that Rav Ashi's intention was to answer both questions. The answer to the first question is that an Asham Taluy looks like Kodshim Pesulim even before the sprinkling of its blood, because the essential purpose of the Korban Asham Taluy is to serve as at atonement offering when the person does not know for certain that he sinned. An Asham Vadai, on the other hand, does not look like Kodshim Pesulim until after the sprinkling of its blood, as Rashi explains.

(c) It appears from the words of RABEINU GERSHOM that his text of the Gemara was like that of the Shitah Mekubetzes (#6), according to which Rav Ashi's intention was to answer only the first question. Rabeinu Gershom explains Rav Ashi's answer as follows.

In the case of an Asham Taluy, when a person discovers that he sinned, even if he finds out before the Zerikas ha'Dam, the animal must be burned. Even though it is not like Kodshim Pesulim (since the Zerikah has not yet been done), we attempt to make it look like it was Kodshim (like a Zevach Pasul) in order to prevent onlookers from making a mistake and thinking that even when one finds out after the Zerikas ha'Dam the animal is Chulin and does not need to be burned. After the Zerikas ha'Dam, it certainly is not Chulin (as the Mishnah says, "the Korban is brought for a Safek, and once it has atoned for the Safek, it is like a normal Korban"). Therefore, even when he finds out before the Zerikas ha'Dam that he did not sin, the flesh of the Asham Taluy must be burned like a Zevach Pasul. (According to Rabeinu Gershom, there was never any question on the statement about Asham Vadai, because after the Zerikas ha'Dam it certainly is like Kodshim Pesulim, as Rashi explains.)