the gemara seems to say that to be koneh you need yeiush before shinui reshus. the rambam noted on that statement note 6 says in hilchos geneivah chapter 5 halacha 3 the rambam says the opposite. what is the rambam saying? the mafteach in the back of the frankel rambam says to look at the ktzos in siman 353 seif 1 and the nesivos 353 2, but i cant seems to figure out their explanations. also this rambam is sosser himself in hil. geneivah chapter 2 halacha 6, the oneg yom tov seems to answer it but he too i cannot understand. if you can please help m put this sugya together i would immensly appreciate it. i need to know pshat.
Reuven Kasierer, silver spring, md
We apologize for the delay in responding to your question. We have been receiving quite a lot of questions on the Daf being learned by Dafyomi now, and thus our resources to address questions from other Masechtos has been very stretched.
Your question is a very involved Inyan. I will address your question in general terms and if you want specific details please write back.
The status of Shinuy Reshus before Yi'ush is a Machlokes between Rav and Rebbi Yochanan, according to Rav Zevid, in Bava Kama 115a. The basic question in the SUgya is why the Rambam chooses to rule like Rav, when in general the Halachah follows Rebbi Yochanan. The Nesivos comments that the Machlokes involves being Koneh the object entirely (such that the Ganav does not have to pay for it), and as far as that is concerened the buyer cannot be Koneh since the stolen article came into his possession illegally (b'Isura Asa l'Yadei). However, the Rambam says that although the Ganav is not Koneh the article (such that he does not have to pay for it), nevertheless he is Koneh it to the extent that he may return the value of the article and not the article itself. This is possible even according to Rebbi Yochanan.
The Oneg Yom Tov is not bothered that the Rambam rules like Rav. However, he deals with a practical problem: how is Shinuy Reshus before Yi'ush possible? The Ganav should not be able to sell it (and effect a Shinuy Reshus)! He answers with his famous principle that all of the Kinyanim of Geneivah (Yi'ush, Shinuy, etc.) take effect retroactively to the time of the Geneivah.
D. Zupnik