QUESTION: The Gemara quotes a Beraisa in which Rebbi Meir says that if a person stole an animal and slaughtered it on Shabbos, he is obligated to pay Arba'ah v'Chamishah even though the punishment for slaughtering on Shabbos is Misah. The Gemara asks that Rebbi Meir seems to rule that nothing exempts a person from his obligation to pay, even a Chiyuv Misah. The Gemara answers that the Beraisa refers to a case in which the thief appointed someone else to slaughter the animal for him, and the Shali'ach slaughtered it on Shabbos. Since the Ganav is responsible for the slaughtering, he is obligated to pay Arba'ah v'Chamishah, but since he did not actually slaughter the animal on Shabbos (but rather his Shali'ach did), he is not Chayav Misah.

The Gemara challenges this answer. There is a general rule (Kidushin 42b) that when a person appoints a Shali'ach do commit an Aveirah, the Aveirah is not attributed to the sender but to the Shali'ach. Why, then, is the Ganav obligated to pay Arba'ah v'Chamishah because of the Aveirah which the Shali'ach did? Rava answers that the Chiyuv of Arba'ah v'Chamishah is different because the verse (Shemos 21:37) compares Tevichah to Mechirah. This comparison teaches that just as Mechirah is performed through someone else (i.e. the purchaser) and the Ganav is Chayav, so, too, when the Tevichah is performed through someone else (i.e. a Shali'ach) the Ganav is Chayav. D'Vei Rebbi Yishmael derives this from a different source -- from the extra word "or" ("O") in the verse, "If a person steals an ox or sheep and then slaughters or sells it, he must repay five oxen for each ox, and four sheep for each sheep" (Shemos 21:37), which teaches that one can become obligated to pay Arba'ah v'Chamishah even through the act of a Shali'ach. D'Vei Chizkiyah derives this from a third source -- from the extra word "for" ("Tachas") in the verse, "... he must repay five oxen for

each ox, and four sheep for each sheep."

Why does Rava, an Amora, give a different source from those taught by two Tana'im, d'Vei Rebbi Yishmael and d'Vei Chizkiyah?

ANSWER: The BEIS YAKOV in Kesuvos (33b) answers as follows. The Gemara in Me'ilah states that since a Shali'ach can be appointed to do the Aveirah of Me'ilah (and the Aveirah is considered to have been done by the sender) as the verses with regard to Me'ilah teach, even a Shali'ach who is a Cheresh, Shoteh, or Katan -- who normally is disqualified from being appointed as a Shali'ach -- can make the sender Chayav. The same, therefore, must apply to the case of making a Shali'ach to slaughter a stolen animal; even a person who normally cannot be appointed as a Shali'ach can be a Shali'ach to obligate the Ganav to pay Arba'ah v'Chamishah.

If the only source would have been the Derashah of the extra word "O" or the extra word "Tachas," one would not have known that a Tevichah done by someone who normally is not a valid Shali'ach makes the Ganav obligated to pay. One would have thought that only the Tevichah of a person who is qualified to be a Shali'ach can make him obligated. Therefore, Rava teaches an additional source, the comparison of Tevichah to Mechirah, in order to teach that any person appointed by the Ganav -- even one who is not normally fit to be a valid Shali'ach -- makes the Ganav liable when he slaughters the animal.

QUESTION: The Gemara cites a Mishnah which states that even though one who slaughters an animal on Shabbos or Yom Kippur is Chayav Misah (or Kares), the Shechitah is valid.

How can Shechitah performed on Shabbos be valid? The principle of "Kol Milsa d'Amur Rachmana Lo Ta'avid, Iy Avid Lo Mehani" teaches that when one performs any act which the Torah prohibits (such as Shechitah on Shabbos), that act does not take effect! (See Insights to 70:2.)

(a) The SHACH (CM 208:2) writes that this principle -- that when one does an act prohibited by the Torah that act does not take effect -- applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through an Isur.

The only way one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to slaughtering an animal on Shabbos, since it is possible to perform the Shechitah in a permissible manner (i.e. by doing it on a weekday), this rule (when one does an act prohibited by the Torah that act does not take effect) does not apply. (See Insights to 70:2, where the answer of the Shach is cited in response to a similar question.)

(b) REBBI AKIVA EIGER answers this question in the same manner that he answers the question earlier (see Insights ibid.). He explains that the principle of "Iy Avid Lo Mehani" applies only when the Isur that was done will be rectified in some way by not taking effect. For example, in the case of Temurah, if his act takes effect, he transgresses the Isur against making an exchange for a sanctified animal. If his act does not take effect, he does not transgress the Isur of Temurah. In contrast, in the case of a person who slaughters an animal on Shabbos, even if his act does not take effect and the Shechitah is not valid, he will have done an act of Isur, the Melachah of Shechitah on Shabbos.

(c) RAV ELCHANAN WASSERMAN Hy"d (Kovetz He'oros 76:3-4) writes that any act a person does which has a Halachic consequence can work in one of two ways. The Halachic effect can be accomplished by the person himself, such as in the case of Kinyanim, Kidushin, and Gerushin, where the person himself makes a certain Halachic status take effect. Alternatively, it can occur without the person but through the action alone, such as in the case of Shechitah (it is the act of Shechitah which permits the animal). Although in such a case it is necessary to have a person do the action ("Ko'ach Gavra"), nevertheless it is not the person who permits the meat but it is the Shechitah which permits the meat (the requirement that it be done by a person is merely a condition in the Matir of Shechitah).

According to the second understanding, the principle of "Iy Avid Lo Mehani" does not apply to Shechitah because this principle applies only where the Halachic status comes about through the person himself. Where the person sinned, the Halachic status does not come about at all. With regard to Shechitah, however, the change in Halachic status (i.e. the meat becoming permitted) occurs as a result of the act of Shechitah itself and is not related to the person's will or intent. The independent act of Shechitah causes the meat to become permitted, and even though the person did an Aveirah while doing the Shechitah, it is not the person who makes the meat permitted, and therefore the Shechitah remains valid.

QUESTION: The Gemara asks that according to the opinion that the results of a prohibited act done on Shabbos (such as food cooked on Shabbos, or an animal slaughtered on Shabbos) are permitted mid'Oraisa, why do the Chachamim in the Beraisa (71a) say that the Ganav who slaughtered the animal on Shabbos is exempt from paying Arba'ah v'Chamishah? The Shechitah he did is a valid Shechitah ("Shechitah Re'uyah")! The Gemara answers that the Ganav indeed is obligated to pay Arba'ah v'Chamishah for such a Shechitah, and the Chachamim in the Beraisa who say he is exempt refer to the other types of Shechitah (Shechitah to Avodah Zarah, and Shechitah of a Shor ha'Niskal) mentioned in the Beraisa.

If Rebbi Meir in the Beraisa obligates the Ganav to pay Arba'ah v'Chamishah for a Shechitah that is "Einah Re'uyah," certainly he should obligate the Ganav for a Shechitah done on Shabbos, which is a Shechitah Re'uyah. Why does he need to mention the case of Shechitah done on Shabbos at all, especially since the Chachamim do not argue with it?

(a) TOSFOS in Kesuvos (34a, DH Ki) answers that Rebbi Meir's statement is a "Zu Af Zu" statement; he mentions the obvious case first and then the case with the greater Chidush: Not only is the Ganav who slaughters the animal on Shabbos -- in which case the Shechitah is a valid Shechitah -- obligated to pay Arba'ah v'Chamishah, but even the Ganav who slaughters the animal to Avodah Zarah or who slaughters a Shor ha'Niskal -- in which case the Shechitah is not a valid Shechitah -- is obligated to pay Arba'ah v'Chamishah.

(b) The TOSFOS HA'ROSH there answers that since the cases of Shabbos and Avodah Zarah (with regard to Mechirah) are mentioned together in the Mishnah, the Beraisa also teaches the cases of Shechitah on Shabbos and Shechitah to Avodah Zarah together, even though there is no Chidush in teaching Shechitah on Shabbos.

(c) REBBI AKIVA EIGER (Chidushim to Kesuvos there) answers as follows. The Gemara here continues and asks that according to Rebbi Meir, why is the Ganav obligated to pay Arba'ah v'Chamishah when he slaughters the animal to Avodah Zarah? From the moment he begins the Shechitah with intent that it is for Avodah Zarah, the animal becomes Asur b'Hana'ah. When he has completed the Shechitah, he has slaughtered an item that was Asur b'Hana'ah and which was no longer considered the property of the owner (since an item that is Asur b'Hana'ah has no monetary value and no ownership). If he did not slaughter the person's animal, why must he pay Arba'ah v'Chamishah? Rava answers that the Ganav must pay in a case where he stated explicitly that the animal will not be used for Avodah Zarah until the end of the Shechitah.

The Gemara then asks the same question from the case of Shor ha'Niskal. A Shor ha'Niskal is Asur b'Hana'ah and thus is not considered the property of the owner. Rava answers that the Beraisa refers to a case in which the animal was stolen from the house of a Shomer after it did the damage while in the hands of the Shomer. The Shomer remains obligated to pay back the animal to the original owner, and thus when the Ganav steals the animal from him, the Ganav causes a loss to the Shomer (since the Shomer could have fulfilled his obligation by returning the Shor ha'Niskal to the owner, in accordance with the view of Rebbi Yakov).

This answer of Rava -- that the Ganav stole the animal from the house of the Shomer -- also suffices to answer the first question, why Rebbi Meir says that the Ganav who slaughters the animal for Avodah Zarah is Chayav. The Ganav is causing a loss to the Shomer, since the Shomer could have returned this animal to the original owner. Therefore, the Gemara no longer needs Rava's first answer (that the Ganav said that he wants the animal to be dedicated to Avodah Zarah only at the end of the Shechitah).

According to this approach, had the Beraisa not included the case of a Ganav who slaughters the animal on Shabbos one would not have known that in a case where the Ganav appoints someone else to slaughter the animal (which is the case which Rebbi Meir in the Beraisa is discussing, according to the Gemara earlier), the Ganav is Chayav when the Shali'ach slaughters the animal on Shabbos. One would have assumed that when the Beraisa says that a Ganav who slaughters the animal for Avodah Zarah is Chayav and "Kam Lei bid'Rabah Minei" does not apply, it is because he wants to dedicate the animal to Avodah Zarah specifically at the beginning of the Shechitah, and by the time the end of the Shechitah is performed there is no Chiyuv Misah but only a Chiyuv to pay Arba'ah v'Chamishah. By adding the case of Shechitah done on Shabbos, the Tana teaches that even where the Ganav is Chayav Misah for the end of the Shechitah (which is the law in the case of the Melachah of Shechitah on Shabbos), he still is Chayav to pay Arba'ah v'Chamishah. Therefore, the case must be one in which the Ganav appointed someone else to do the Shechitah, for otherwise he would be exempt because of "Kam Lei bid'Rabah Minei." That is why it is necessary to teach the case of the Ganav who slaughters the animal on Shabbos.