GITIN 55 (4 Elul) - Dedicated l'Iluy Nishmas Chaim Yisachar (ben Yaakov) Smulewitz of Cleveland on his Yahrzeit, by his daughter and son in law, Jeri & Eli Turkel of Raanana, Israel.

QUESTION: The Mishnah records the testimony of Rebbi Yochanan ben Gudgeda with regard to several Halachos. One of the Halachos involves a case in which a person stole a beam and built it into his house. The Halachah is that he may fulfill his obligation to return the stolen object by returning its monetary value. Although according to Torah law he should be required to demolish his house and remove the beam and return it to the owner, in order to encourage him to repent the Rabanan decreed that he may return its monetary value. This enactment is called "Takanas ha'Shavim" -- "the enactment for those who repent."
The Gemara in Ta'anis (16a) discusses the mass repentance of the people of Ninveh. It quotes the verse, "And they repented, each person from his evil way, and from the Chamas (violent seizure) in their hands" (Yonah 3:8). Shmuel explains that repentance from the "Chamas in their hands" describes how residents of Ninveh who had stolen beams and built them into their homes repented by demolishing their homes in order to return the beams to their owners. The CHIDUSHEI CHASAM SOFER asks that according to the Mishnah here, the people of Ninveh did nothing out of the ordinary for which the verse should praise them. The letter of the law requires that the thief return the beam itself. The "Takanas ha'Shavim" was instituted by the Rabanan only for Jews who wish to repent; they instituted no such leniency for Nochrim. Why does the verse praise the people of Ninveh for repenting in this manner?
Moreover, what does Shmuel see in the verse in Yonah that alludes to this form of repentance?
(a) The CHIDUSHEI CHASAM SOFER answers that Shmuel infers from the verse's use of the two phrases, "from his evil way" and "from the Chamas," that the verse refers to two related "evil ways," one of which it defines as "Chamas." The Chasam Sofer prefaces his analysis of these two phrases with the words of the RAMBAN. The Ramban writes that before the Rabanan established the "Takanas ha'Shavim," one who stole a beam, repented, and paid the owner the value of the beam but kept the beam itself did not have the status of a "Gazlan" ("thief") but rather a "Chamsan," one who transgresses the prohibition against "Chamas." The Gemara in Bava Kama (62a) teaches that the difference between "Gezel" (stealing) and "Chamas" is that a Gazlan forcibly takes the object without paying money, while a Chamsan compensates the owner for the object he forcibly seizes.
Accordingly, the verse in Yonah may be understood as follows. "Evil ways" describes how, in Ninveh, even the victim of a theft acted wrongly. The victim would insist that the thief return his beam to him and he did not accept monetary compensation. The verse relates that the people of Ninveh corrected their bad character traits and would forego the right to "the letter of the law" that the thief knock down his building in order to repent. When the verse says that they repented "from the Chamas in their hands," it means that the thieves themselves volunteered to return the actual beams in order to avoid any possible transgression of "Chamas," even though the victims requested only monetary compensation.
(b) RAV YOSEF SHALOM ELYASHIV shlit'a (quoted in He'oros b'Maseches Gitin) cites the Gemara in Eruvin (62a) which states that a Nochri who steals is liable for the death penalty, even if the object's value is less than a Perutah. Moreover, he is not able to avoid punishment by returning the stolen object. RASHI there (DH Lo Nitan l'Hishavon) writes that the verse, "He shall return the item which he stole" (Vayikra 5:23), applies only to Jews, not to Nochrim. Nochrim have no obligation to return a stolen object, and thus doing so does not exempt them from punishment. TOSFOS there (DH Ben Noach) mentions another possible reason for why a Nochri is exempt from returning an object he stole. Since a Nochri is punished with death for stealing, he is exempt from returning the stolen object because of the principle of "Kam Lei bid'Rabah Minei" (when a person is liable for two punishments at one time, such as Misah and a monetary payment, he receives only the "larger," more severe punishment (in this case, death)). According to the view of Rav in Sanhedrin (72a), the principal of "Kam Lei bid'Rabah Minei" applies even when the stolen object is still intact.
Rav Elyashiv explains that according to the letter of the law, the people of Ninveh were exempt from returning stolen objects even if those objects were present and intact. As Nochrim, they were not bound by the Mitzvah to return stolen objects. Nevertheless, a Nochri thief would not actually acquire the object he stole, since one cannot acquire an object if the owner does not willingly transfer its ownership. Although the owner of the beam was entitled to demolish the thief's house to retrieve his beam, the owner normally did not go through so much trouble just to retrieve one beam. The merit of the penitent thieves of Ninveh was that they voluntarily demolished their houses in order to return the stolen beams to the original owners (some of whom did not even know that their stolen beams were part of the thieves' houses). (D. BLOOM)


QUESTION: The Mishnah (55a) teaches that the Rabanan decreed that when a person offers a stolen animal as a Korban Chatas without knowing that the animal was stolen, it nevertheless provides atonement because of "Tikun ha'Mizbe'ach." The Gemara (55a) quotes Ula who explains that although according to Torah law such a Korban should not be valid because Ye'ush alone does not effect a transfer of ownership, the Rabanan decreed that if it was not known that the animal was stolen it still provides atonement. They enacted this decree in order that the Kohanim not feel upset that they transgressed the prohibition against eating Chulin inside the Beis ha'Mikdash (see RASHI DH Shelo).
RASHI (DH Ye'ush) explains that "Ye'ush" here means that the owner despaired (the literal meaning of "Ye'ush") of receiving his animal back. Since there was no "Shinuy Reshus" ("change of ownership") after the Ye'ush, the animal never entered the possession of the thief (because the thief stole the animal before the owner despaired of retrieving it).
The Gemara here quotes a Beraisa which discusses the case of one who stole an animal and then designated it as a Korban. The Beraisa rules that if one slaughters that animal outside the Beis ha'Mikdash, he is punished with Kares for transgressing the prohibition of "Shechutei Chutz" (slaughtering a Korban outside the Beis ha'Mikdash). Based on this Beraisa, Rava questions Ula's explanation: if Ye'ush alone does not acquire the object for the thief, how is the thief's Hekdesh (designation of the animal as a Korban) effective such that the prohibition of "Shechutei Chutz" applies to it? One cannot be Makdish an animal which he does not own.
The RASHBA asks why Rava challenges Ula only from the Beraisa. He should ask his question from the Mishnah in Bava Kama (74b) which the Gemara earlier quotes, which states that if the thief is Makdish the animal he is exempt from paying "Arba'ah v'Chamishah" (four or five times the animal's value if he slaughtered or sold it). The only reason why the thief should be exempt from "Arba'ah v'Chamishah" is that the animal became Hekdesh, but according to Ula the thief could not have made the animal Hekdesh since it was not his!
ANSWER: The RASHBA quotes RABEINU TAM who answers that Rava could not have asked his question on Ula from the Mishnah. Rava knew that when Ula stated that Ye'ush alone does not acquire, he meant only that Ye'ush does not give the present holder of the animal the ability to make it sanctified as a Korban. The animal cannot be offered as a Korban because it is a "Mitzvah ha'Ba'ah b'Aveirah," a "Mitzvah performed through a sin" (see Sukah 30a). However, Ula agrees that Ye'ush alone generally causes a transfer of ownership. This is why Ula would agree with the Mishnah that the thief is exempt from paying "Arba'ah v'Chamishah" if he slaughters or sells the animal. Rava challenges Ula only from the Beraisa, because the Beraisa considers the animal a valid Korban when it states that a person who slaughters the animal outside the Beis ha'Mikdash is liable for Kares.
The Rashba uses this approach to reconcile Ula's statement in the Gemara here with another statement of Ula in Bava Kama (114a). The Mishnah there discusses a case in which a person saves someone else's object from being washed away by a river, pillaged by an army, or stolen by bandits. The Mishnah says that if the owner had Ye'ush, the item belongs to the person who saved it. The Gemara there cites another Mishnah which quotes a dispute about whether a person normally has Ye'ush when his property is stolen by a thief (who steals clandestinely) or by a Gazlan (who steals openly). Ula there states that the dispute in the Mishnah involves only a case in which it is not known whether or not the owner had Ye'ush. Everyone agrees that when it was known that the owner had Ye'ush, Ye'ush alone gives the thief possession of the stolen object.
Ula's position regarding Ye'ush seems unclear. In the Gemara here, Ula apparently maintains that Ye'ush alone cannot effect a transfer of ownership, while in Bava Kama (114a) he apparently maintains that it can!
The Rashba explains that this contradiction is reconciled by Rabeinu Tam's understanding of Ula. Only in the case of the Gemara here (one who offers a stolen animal as a Korban) does Ula maintain that Ye'ush alone does not transfer ownership. The Gemara in Bava Kama (114a) does not discuss Korbanos, and thus Ula there states that Ye'ush does effect a transfer of ownership. (D. BLOOM)