Question:
Shalom Aleichem, Unless I'm mistaken, it's R. Yosef in Bava Kamma that holds that Listim mezuyin has a din of Ganav - and Abaye is his Bar Plugtah over there - and he doesn't seem to accept that Listim mezuyin would be called Ganav.
So how could R. Pappa, who is coming to defend Abaye on Bava Metziah 22a in the case of Gazlan and Yarden etc, explain that the reference to Ganav in the baraisa is to Listim mezuyin, who, for purposes of Yi'ush have a din of Gazlan, but who (presumably vis-a-vis the diyun in Bava Kamma) have a din of Ganav? For this to work, Abaye would have to be modeh that Listim mezuyin is called Ganav?!
Thanks,
Ron Meyers, Seattle WA
Ron - this is a wonderful and tremendously observant question!
(1) I think that the key to answering this is to understand that to a large extent it is a matter of terminology. The short answer to your question is that a Listim Mezuyan is sometimes called a Ganav because he attempts to perform his thefts as quietly as possible but on the other hand since he is prepared to use his weapons if necessary he is also sometimes called a Gazlan. Abaye here calls him a Ganav, because he is slightly different than a standard Gazlan since he does try and do his crime in secret if possible, but he does not really possess the din of a Ganav because he is prepared to use force, and therefore in Bava Kama 57a one would not pay double (paying double only applies to a Ganav) according to Abaye if one claimed that the object had been stolen by a Listim Mezuyan.
(2) I will try and explain this a bit more. I saw that the Toras Chayim here ( a very important Sefer written about 400 years ago) comments that the Listim Mezuyan is termed a Ganav because he hides himself away from people, as is stated in the Gemara Bava Kama 57a, which you cited yourself, of course. The point is that generally speaking the difference between a Ganav and a Gazlan is that a Ganav does his work in secret (often in the middle of the night etc. when nobody can see him) whilst a Gazlan is someone who steals openly in broad daylight. The Gemara in Bava Kama 79b states that a Gazlan is someone who steals forcefully as we find in 2 Shmuel 23:21 "He stole the spear from the hand of the Egyptian".
(3) According to the this the Listim Mezuyan, who is an armed robber, is primarily classified as a Gazlan because he is prepared to commit his crime by force. Because he is armed the owners have Yi'ush and do not expect to retrieve their belongings, which fits in with Bava Metzia 22a where the Listim Mezuyan creates Yi'ush according to Abaye.
(4) In short ,Abaye in Bava Kama 57a maintains that Listim Mezuyan really has the din of a Gazlan because he is violent, but in Bava Metzia 22a he calls him a Ganav when he talks about 2 kinds of Gazlan because since he attempts to do things in secret he is more similar to a Ganav than the average Gazlan.
Again, Yeyasher Ko'ach for your fine question.
Kol Tuv
Dovid Bloom
Thanks for your response. In other words, what you are saying that there is no nafka mina in the baraisa which calls him a Ganav - because mima nafshach it's irrelevant in both contexts: a) in Ye'ush, there is immediate conscious Ye'ush mida'as because he's in fact a Gazlan and b) in BK, despite him sharing a quality with Ganav, he is not enough "Ganav" to be a "Ganav" as far as to'en ta'anas Ganav is concerned! So it's a term with no Halachic relevance....
So what I'm saying is that I think saying "it's a matter of terminology" somewhat begs the question....
kol tuv and thanks for your response!
Ron Meyers
Ron - thank you very much for your comments. I must admit that whenever I had a few spare minutes this week I found that I was thinking about your strong question and whether I had given the right answer. However I am going to stick to my ground and try and explain further my original answer.
Do you know who asks your question on me? The Toras Chaim that I cited last time asks your question! Why did the Toras Chaim have to add on to the answer of Rav Papa - that it is a Listim Mezuyan - that he is called a Listim Mezuyan because he hides himself away?. The answer is because he had your question that there is no Halachah for which he possesses the status of a Ganav.
Toras Chaim answered that it is true that he is not Halachically a Ganav but even so, since his actions are so similar to that of a Ganav, that is why Abaye calls him that since it is such a realistic way of describing the way he hides himself away. In addition, I argue that there is Halachic relevance to the fact Abaye calls him a Ganav. By doing so Abaye is teaching us that there is a scenario where even though somebody behaves like a Ganav, nevertheless he has a din of a Gazlan and it follows that he will not pay Kefel. This is actually a big Chidush and in fact the Halachah does not follow Abaye on this. Instead the Halachah is that it all depends on whether he hides himself away or not.
This is stated in Shulchan Aruch Choshen Mishpat 348:3 that a Ganav is someone who takes property in secret without the owners knowing. SM'A #7 writes that in reality it does not matter whether or not the owners know, but rather whenever he takes in secret, he is a Ganav and pays Kefel. The GRA #14 also learns this way and writes that according to this a Listim Mezuyan is a Ganav. This is the opinion of Rav Yosef in Bava Kama 57a who disagrees with Abaye. Abaye's Chidush though is that even though someone looks so like a Ganav he still has a din of a Gazlan because according to Abaye it does not depend on whether he hides himself away, but rather it depends on whether he is prepared to steal violently if pushed.
Good Shabbos,
Dovid Bloom