Hi,
I'm sorry to bother you with another question. I know that we generally assume that a Ganav and a Gazlan have certain kinyanim on the chefetz hanigzal -- that is, they become partial owners, so that we can be mechayev them in ONESS (similar to a sho'el). I also know that once an object is stolen (and before yeiush), it is still considered to be "shelo" of the NIGZAL, but it's "bir'shuso" of the GAZLAN (hence neither one may be makdish the animal). What's the relationship between the "kinyanim" that are mechayev someone in oness and the fact that it's "birshuso"? Is the "kinyan" of bir'shuso what MAKES him chayav in onsim? I guess what I'm really asking is that I'm just a little bit unclear on exactly what level of ba'alus a ganav or a gazlan have on an object, both before and after yeiush. Could you please briefly summarize, if it's not too much trouble? Thank you so much for your help.
Kol Tuv,
Zev, USA
A Gazlan is said to have Kinyanei Gezeilah in the stolen article. Rav Zev Gustman, in Kuntresei Shiurim (Bava Kama 18:5) identifies three separate ramifications:
(1) He is responsible for damage to the stolen article even if the said damage is caused through no fault of his own,
(2) He will acquire the stolen article if a Shinuy occurs, and
(3) He is not obligated to pay rent for the use of the stolen article.
Rashi in Sanhedrin 72a explains that we learn that the Gazlan is responsible for damage to the stolen article from Shomrim whom the Torah obligated when they are Sholei'ach Yad. Tosfos however, in Bava Kama 11a, explains that we learn the Chiyuv from the Pasuk of v'Heishiv Es ha'Gezeilah. From the fact that the Torah tells us that the Gazlan is Koneh the article if there is a Shinuy (Bava Kama 66a) and that from the time of Gezeilah the Gazlan is responsible for damage to the article, even if this damage is beyond his control, we infer that the article has come into the Gazlan's Reshus through the Gezeilah. In other words, the Chiyuvim that the Torah gave the Gazlan are the source of our knowledge that he has Kinyanim in the article. The Torah decreed that the Kinyanim come about through the act of stealing, and entail the three points mentioned above. We may therefore say that from the time of stealing, the Gazlan has a part ownership of the article which enables him to be Koneh it if a Shinuy occurs and obligates him to pay if he cannot return it intact. The fact that it is partly his is what exempts him from paying rent for its use.
After Yi'ush the Gazlan has a further Kinyan in the article in that it is his to sell or be Makdish. See Tosfos Bava Kama 67b end DH Rava.
Dov Freedman