QUESTION: The Gemara continues its discussion about whether a thief acquires the item he stole by virtue of the Ye'ush of the original owner. The Gemara attempts to prove that he does acquire through Ye'ush from a Tosefta in Terumos. The Tosefta says that if a thief consecrates (Makdish) the item he stole, or if he separates Terumah from it, the Hekdesh or Terumah takes effect. Since Hekdesh or Terumah can take effect only if the thief was the owner of the item, it must be that he acquired the item through Ye'ush.

The Gemara refutes the proof and says that in that case, there is both Ye'ush and Shinuy ha'Shem. The change from Chulin to Hekdesh, or from Tevel to Terumah, is considered a Shinuy. Ye'ush alone, however, may not be enough to enable him to acquire the item.

The Gemara's answer is difficult to understand. In a pile of fruit, there are two parts -- the part that is Terumah, and the rest of the pile that is Chulin. The part that is Terumah indeed undergoes a Shinuy ha'Shem when it is separated and changes from Tevel into Terumah, but the part that is Chulin undergoes no Shinuy ha'Shem. The Chulin merely changes from being forbidden (as Tevel) to being permitted (as Chulin), but there is no Shinuy ha'Shem. Hence, the thief does not acquire the rest of the pile of the fruit; he acquires only the Terumah. If that is true, however, then how is his separation of Terumah a valid Terumah? He is separating Terumah from his own fruits (that he acquired through Ye'ush and Shinuy ha'Shem, if the principle of "Ba'in k'Achas" is applied) on behalf of someone else's fruits (the Chulin, which had no Shinuy ha'Shem and which he did not acquire), and thus his act of separating Terumah should not take effect.

(a) The OR SAME'ACH (Hilchos Gezeilah 5:4) answers simply that the Halachah is that one who separates Terumah from his own fruits on behalf of someone else's fruits does not need the consent of the other owner.

There are several problems with this answer. The reason why one is able to separate Terumah from his own fruits on behalf of someone else's is based on the principle, "Zachin l'Adam she'Lo b'Fanav." Here, however, the concept of "Zechiyah" is not applicable because the owner prefers that the thief not take Terumah, because if the Terumah does not take effect, the thief cannot acquire it. If the thief cannot acquire the Terumah, it is a "Chov" (a detriment or loss) to the owner, and thus the thief's act of separating Terumah should not take effect. (See CHASON ISH, Bava Kama 17:17; ACHIEZER 3:55:3; RAV SHLOMO ZALMAN AUERBACH zt'l in MA'ADANEI ERETZ, Terumos 4:11:2.)

Moreover, many Rishonim maintain that "Zechiyah" functions through Shelichus. Accordingly, in the case of the Gemara here, Zechiyah would function either because it is assumed that the original owner would have made the thief a Shali'ach to separate Terumah for him, or because the Torah makes him a Shali'ach. However, Shelichus works only when the owner is able to do the act himself which he appoints the Shali'ach to do. Here, the owner is unable to separate Terumah because the fruits are not in his domain, and thus the thief also should not be able to separate Terumah. (The Or Same'ach himself asks this question, as does the Achiezer 2:37:3.)

Finally, the KETZOS HA'CHOSHEN (243 and elsewhere) writes that "Zechiyah" works only to be Zocheh an item to a person (i.e. to put an item into his possession), but not to be Zocheh an item from a person (i.e. to remove an item from his possession). Here, the principle of "Zechiyah" cannot work to enable the thief to take Terumah from his fruits for the fruits of someone else, since he is not giving anything to the owner of the fruits. He merely is attempting to use his own property to enable the owner to do a Mitzvah, but "Zechiyah" does not work for this.

These three questions on the approach of the Or Same'ach may be answered based on what RAV CHAIM SOLOVEITCHIK writes (in Chidushei ha'Shas "stencils," #286). Although in all other cases in which one person separates Terumah from his own fruits on behalf of someone else's fruits, the Terumah takes effect through the mechanism of "Zachin l'Adam she'Lo b'Fanav," in the case of the Gemara here it works differently. Normally, "Zechiyah" is necessary only because one must separate Terumah from the pile of fruits that are Tevel, and not from someone else's pile of fruits on behalf of this pile (as derived from the verse, "Es Mikdasho Mimenu" Bamidbar 18:29). However, to separate Terumah from one person's pile for him is not a Zechus but a Chov, and therefore one is able to separate only from his own pile on behalf of his friend's pile, for then the principle of "Zachin l'Adam" makes it as if the fruits of Terumah belong to his friend and the Halachah of "Es Mikdasho Mimenu" (Bamidbar 18:29) is fulfilled.

In the case of the Gemara here, however, the thief is able to separate Terumah from the pile itself (that he stole), since he acquires the Terumah through Ye'ush and Shinuy ha'Shem, and thus the requirement of "Es Mikdasho Mimenu" is fulfilled. Even without the principle of "Zachin l'Adam," the Terumah takes effect.

(b) RAV SHIMON SHKOP (Chidushim 35:1) proves from this Gemara that the change from "Tevel" to "Chulin" is also considered a Shinuy ha'Shem. Consequently, the thief certainly is able to make the Terumah take effect, because he also acquires the Chulin part of the fruits.

The ACHIEZER rejects this answer and infers from the wording of the Gemara, "originally it was Tevel and now it is Terumah," that only the change from Tevel to Terumah is considered a Shinuy ha'Shem and not the change from Tevel to Chulin.

(c) The ACHIEZER instead suggests that the Tosefta refers to a case in which the thief separates Terumah from the fruits of the original owner, on behalf of the thief's own fruits (and not on behalf of the owner's fruits). The Terumah takes effect because he acquires those fruits with Shinuy ha'Shem. (See also ONEG YOM TOV 108.)

The GEDULEI SHMUEL writes that the Or Same'ach does not accept this answer because the Tosefta says merely that the Terumah of the thief is valid, and it does not specify that it is valid only when he separates Terumah from the original owner's fruits on behalf of his own fruits.

OPINIONS: Rebbi Akiva in a Beraisa says that the reason why a thief who slaughtered (Tavach) or sold (Machar) the animal he stole must pay back Arba'ah v'Chamishah is "Mipnei she'Nishtaresh ba'Chet" -- "because he became rooted in sin." What exactly does this mean?

(a) RASHI here writes that it means that the thief "made roots, meaning that he strengthened his sin by acquiring it and benefiting from his deeds." Rashi means that until the slaughter or sell of the animal, the thief did not acquire the animal entirely, but rather it was still considered in the possession of its original owner. (The thief has only a "Kinyan Gezeilah" which removes the animal from the "domain" (Reshus) of the owner, but not from the "ownership" (Mamon) of the owner.) When the thief slaughters or sells the animal, he acquires it entirely. His deed removes the animal entirely from the ownership of the owner. "He strengthened his sin" refers to the sin he did initially when he stole the animal.

(b) The DIVREI YECHEZKEL (57:3) writes that "she'Nishtaresh ba'Chet" means that the thief damaged the animal through the act of Tevichah. According to his explanation, "Nishtaresh ba'Chet" refers to the additional sin of damaging the animal, and it means that he became rooted in additional sin (of Tevichah).