Rabbi Elayi says that naaseh shinui is koneh, why doesnt he just say that bc the ganav held on to it for a certain amount of time for the animal to change names (assuming its a yr or 2) that he is koneh it based on what we learned on 65a where the braita states that kechusha ve hishmina meshalem keen sheganav bc i fattened it and you made money--> why cant the ganav who cared for the animal for enough time for him to change size (case of R Elayi) and name say to the owner I fattened him and you will benefit? He is definitely owed money for his caring for the animal for a long period of time and probably enough to offset any payments he owes (even 4 or 5)based on this learning and we learned on 59a about the person who causes a miscarriage pays for the baby minus the savings from the fact that they dont need a midwife or the money saved on food, therefore we see from here that the perpetrator is in fact reimbursed for saving the victim money, so too here with R Elayi...
Daniel Husney, Brooklyn, NY
1) The Gemara (end of 65b) tells us that when an animal grows older its name does not necessarily change, because a one-day-old ox is also called an ox, and a one-day-old ram is also called a ram. Therefore, it may be that no Shinuy ha'Shem has been made.
2) Rashi (65b, DH v'Nikninhu) writes that an animal getting fatter is considered a Shinuy only if a deliberate action was taken in order to fatten the animal. If the animal got fatter on its own, this is not considered a change through which the thief would acquire the animal. In Rav Ila'ei's case, it seems that the Ganav did not do anything significant. We can see this from the fact that he said "Na'aseh," which implies that it happened on its own.
3) I find it difficult to accept that the thief is owed money for caring for the animal for a long period of time. It seems that one can deflect the proof from 59a. The Me'iri (end of 59a) rules that one does not deduct the wages of the midwife or savings on food from the payment of the person who caused the miscariage. I argue that if one was to pay the Ganav for caring for the animal, this would be considered as "Im Ken, Matzinu Chotei Niskar" (see Bava Kama 38a); we do not do anything that would allow a sinner to profit from his sin.
4) Here are some further comments about a thief who demands payment for caring for the animal:
a) It seems to me that there is a significant difference between the Ganav of the sheep and the case of the Gemara (59a) about the person who causes a miscarriage. The latter presumably was not caused with the deliberate intention of inducing the birth of the baby, but rather is an inderect result of irresponsible behavior. That is why Rebbi Yosi says that one deducts the fee of the midwife, and Ben Azai says that one deducts the food bill that she would have incurred; these are payments that the father did actually avoid because of the miscarriage. There is a big difference between this Gemara and the possibility of a thief claiming that he should actually be paid for caring for the stolen animal. There, one is not deducting from what the thief has to pay, but actually adding to what the thief receives.
b) We do find that the Rema (Shulchan Aruch, Choshen Mishpat 354:1) writes that some say that even if the stolen item improved automatically in the possession of the thief, without the latter doing anything to help this, the thief still gets the profits. However, this means that the thief benefits from the stolen item itself, but there is no proof from there that the thief would receive a separate payment and would be paid for caring for the stolen sheep.
Kol Tuv,
Dovid Bloom