KESUVOS 31 (14 Adar) - Dedicated l'Iluy Nishmas HaRav Ze'ev Wolf Rosengarten of Zurich, Switzerland, a person of "Sheleimus" in every way. Well-known for his Shimush of the Brisker Rav, Rav Wolf passed away on 14 Adar 5760. Dedicated in honor of his Yahrzeit by his nephew and Talmid, Eli Rosengarten of Zurich.
 


12th CYCLE DEDICATION
KESUVOS 31 (20 Tishrei) - Dedicated by Al, Sophia and Jared Ziegler of Har Nof, Jerusalem, in loving memory of Al's mother, Chaya bas Berel Dov Ziegler, on the day of her Yahrzeit, and towards Jared's continued growth in Torah and Yir'as Shamayim.

1)

EXEMPTION FOR STEALING ON SHABBOS [Kam Lei bid'Rabah Minei:Shabbos:theft]

(a)

Gemara

1.

30a (Beraisa - R. Nechunya ben Hakanah): Yom Kipur is like Shabbos regarding paying. On Shabbos, since he is liable to death for Melachah, he is exempt from paying for it. The same applies to Yom Kipur (and all other Chayavei Kerisos).

2.

31a (Rav Chisda): R. Nechunya agrees that one who stole Chelev and ate it must pay;

i.

He is liable to pay once he picks it up. He is not Chayav Misah until he eats it.

3.

Suggestion: Rav Chisda disagrees with R. Avin:

i.

(R. Avin): If one threw an arrow four Amos (in a Reshus ha'Rabim on Shabbos) and it tore silk along the way, he is exempt from paying. An arrow cannot land unless it was thrown (his Chiyuv Misah starts with the throwing).

ii.

Here too, R. Avin would also say that one cannot eat Chelev unless he lifts it!

4.

Rejection: The cases are different;

i.

Reason #1: An arrow cannot land without being thrown. One can eat without lifting the Chelev. He can bend down and eat!

ii.

Reason #2: One cannot retrieve an arrow after shooting it. One can return the Chelev after picking it up.

5.

These reasons argue about one who carries a knife four Amos in a Reshus ha'Rabim and tears silk along the way. Reason #1 exempts here, for the Chiyuv Misah starts with setting the knife in motion. Reason #2 obligates here, for he could stop the knife in the middle.

6.

Question (against R. Avin - Rav Bivi - Beraisa): One who stole a wallet on Shabbos must pay, for the theft preceded the Chilul Shabbos. If he was dragging the wallet he is exempt, because the theft and the Chilul Shabbos come together.

i.

In the Seifa he is exempt even though he cannot put the wallet down unless he picked it!

7.

Answer #1: He stopped in the middle to rest. (The Chilul Shabbos starts when he resumed walking.)

8.

Inference: If he stopped to adjust the load, he is exempt. (This is normal while carrying, so the Chilul Shabbos started when he first picked it up!)

9.

Question: If so, the Beraisa should distinguish between stopping to rest and to readjust, rather than between carrying and dragging!

10.

Answer: The Beraisa is like Ben Azai, who considers a person to be at rest each time he takes a step. (The Chilul Shabbos starts only when he steps outside.)

11.

Question: If so, if he threw the wallet he would be exempt. The Beraisa should distinguish between carrying and throwing, rather than between carrying and dragging!

12.

Answer: It taught about dragging lest one think that this is not a normal way to carry a wallet, and he would not be liable for Chilul Shabbos.

i.

If the wallet is small, dragging is not normal! If it is big, obviously dragging it is normal! Rather, it is a medium size wallet.

13.

Question: If he took it to a Reshus ha'Rabim (Meshichah does not acquire there), Chilul Shabbos precedes liability for theft. If he took it to his own domain, liability for theft precedes Chilul Shabbos!

14.

Answer: He brought it to a shoulder of a Reshus ha'Rabim. He holds, like R. Eliezer, who holds that it is like a Reshus ha'Rabim regarding Shabbos, but not regarding acquisitions.

15.

Answer #2 (to Question (6) - Rav Ashi): He put his hand (that he was not dragging it with) within three Tefachim of the ground and received the wallet.

i.

(Rava): A man's hand is considered like a place four Tefachim by four Tefachim (to be liable for Hanachah on Shabbos. Likewise, it can acquire.)

16.

Answer #3 (Ravina): Really, he took the wallet to a Reshus ha'Rabim. A thief acquires (liability) even in a Reshus ha'Rabim.

17.

Sanhedrin 72a (Rav): If a Ba b'Machteres (a thief tunneling into a house) took Kelim and left, he is exempt. (We assume that he was ready to kill the Ba'al ha'Bayis, so anyone could have killed him.)

18.

(Rava): This is reasonable if he broke them but not if he took them! However, I swear that Rav said even if he took them!

19.

Question (against Rava - Beraisa): If one stole a wallet on Shabbos and was dragging it out he is exempt, for the liabilities come at the same time (when he gets to Reshus ha'Rabim. Even though it is intact, he keeps it!)

20.

Answer: The Halachah is, (this is true only if) he threw it in the river.

(b)

Rishonim

1.

Rambam (Hilchos Geneivah 3:2): If on Shabbos someone threw an arrow four Amos (in a Reshus ha'Rabim) and it tore a garment along the way, or if he stole a wallet and dragged it from the owner's premises to Reshus ha'Rabim and destroyed it there, he is exempt. The Isur Shabbos came together with the theft or damage. However, if he lifted the wallet in Reshus ha'Yachid and afterwards took it to Reshus ha'Rabim and cast it into the river he pays double, for liability to pay preceded the Isur Skilah. The same applies to all similar cases.

i.

Question (Magid Mishneh): The Rambam rules like R. Avin regarding an arrow. A Beraisa was asked against him; we established it like Ben Azai. The Rambam rules like the Beraisa, even though the Halachah does not follow Ben Azai! Alternatively, the Beraisa is like Chachamim, but we must say that he stopped to rest. The Rambam did not mention this!

ii.

Answer (Magid Mishneh): The Rambam holds like the Meforshim who say that the Sugya is according to Reason #1 (an arrow cannot land without being thrown). According to Reason #2 (one cannot retrieve an arrow after shooting it), stealing a wallet is like tearing while carrying a knife four Amos in a Reshus ha'Rabim. All obligate, for he could stop the knife in the middle.

iii.

Magid Mishneh: If the theft is intact, he must return it (Sanhedrin 72a). The Gemara says that if he threw it in the river he is exempt. The Ramah and Ramban say that this is only if the river is near Reshus ha'Rabim and he cast it in right after reaching Reshus ha'Rabim; if not, he is liable. The Rambam and Rashi exempt even if the river is far away. Their opinion is primary.

iv.

Rebuttal (Bach CM 351 DH u'Mah she'Chosav b'Shem and Gra 3): The Rambam exempts when he dragged it to Reshus ha'Rabim and destroyed it there, which connotes immediately. He agrees with the Ramban.

v.

Ba'al ha'Ma'or (Sanhedrin 17a): Why did the Rif omit the Sugya of Rav and Rava? 'The Halachah is, he threw it in the river', i.e. the Halachah follows Rava. It is a stringency mid'Rabanan to return it when it is intact.

vi.

Rebuttal (Milchamos Hash-m): Rav agrees that mid'Oraisa the thief must return it when it is intact. He acquired it only to be Chayav for all Onsim. They argue about when he took it outside the tunnel and broke it. We conclude 'the Halachah is, it was thrown in the river', i.e. by someone else. The thief's only possible liability is for when he took them, and then he was Chayav Misah. Alternatively, when he reached Reshus ha'Rabim he threw them in the river immediately, or he threw them into a stream that is itself Reshus ha'Rabim. The Rif did not need to bring Rav and Rava, for he already ruled that if a Rodef broke Kelim he is exempt.

(c)

Poskim

1.

Shulchan Aruch (351): Sometimes a thief is exempt. This is when a Chiyuv Misah came with the (Chiyuv for) payment, e.g. someone stole a wallet on Shabbos and did not pick it up in the owner's premises. Rather, he dragged it from the owner's premises to Reshus ha'Rabim, and destroyed it there.

i.

SMA (1): Another case of exemption is when an animal was deposited by him, and he slaughtered it on Shabbos to steal it.

ii.

Gra (1): The Shulchan Aruch rules like the Rambam, who rules like Ravina (that a thief acquires in Reshus ha'Rabim). The Tur rules like Rav Ashi (he received it in his other hand within three Tefachim of the ground.)

2.

Rema: If he destroyed it afterwards, he is liable.

i.

SMA (4): As long as it is intact it belongs to the owner. The monetary Chiyuv is when he destroys it. If this was after he transgressed Shabbos, he is liable.

ii.

Question (Shach 1): Who says so? The Tur says so only regarding Ba b'Machteres, for his Chiyuv Misah ends once he leaves. Regarding Shabbos, the Chiyuv Misah continues, so he is exempt whenever he destroys it!

iii.

Answer (Gra 5): The Ramban (and Rambam) say so. 'Afterwards' means after he left Reshus ha'Rabim.

3.

Rema: All the more so if it is still intact, he must return it. Some say that whenever it is not intact he is exempt.

4.

Shulchan Aruch (ibid.): He is exempt because the Isur Shabbos and the theft or damage come together. However, if he lifted the wallet in Reshus ha'Yachid and later took it to Reshus ha'Rabim and cast it into the river he must pay, for the liability to pay preceded the Isur Skilah. The same applies to all similar cases.

i.

SMA (6): The Tur says that Ba b'Machteres is a similar case.

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