Bava Kama page 111.

Bava Kama page 111. This is a subject that Rav Shach and Rav Shmuel Rozovski both deal with in the Rambam laws of theft chapter 5 law 7. [R. Rozovski was the rosh yeshiva of Ponovitch for about 35 years before Rav Shach.] One question is that if one marries a woman by theft or robbery [i.e., he stole an object and give it to a woman and say by this you are married to me] and it is known that there was already giving up abandonment by the owner, then the marriage is valid. However, see in Zichron Shmuel chapter 58 where he brings the case of sanctified object that if the situation is such that the Temple would have to pay for the object, then nothing was given in fact. So, in our case with theft even with abandonment and change of domain, the thief has to pay back the owner if the thief was a well-known thief, and even if he was not well known, the person that acquired the object from the thief would have to pay for it except for fixing of the market place. So, even if we are dealing with a case in which the woman does not have to give back the object, still she has to pay for it, or at least from the law of the torah she would have to pay for it except because of fixing of the market placve. [No one would buy anything if any buy can be cancelled.] Therefore, she received nothing, and the marriage should not be valid. The other problem is, why is she married? To Rav Rozovski and Rav Shach it is because there was abandonment along with change of domain. What change of domain? The responsibilities and privileges that the thief had before he gives it back. To the Gra however, it means that there was another change of domain before the object was given to the woman. And in terms of robbery, the Gra is certainly right for abandonment does not apply to robbery. The change of domain had to have occurred before giving the object to the woman. When the question is about theft why is she married? I think that privileges of the thief nor abandonment would work along since each Is weak. But together they can be considered a such that the thief gave her something of monetary value. just to be clear. If there was theft and the thief sold the object, and there was abandonment by the owner, then the person that bought it keep it. However, if the thief was well-known, the buyer has to pay for it. If not, then he does not have to pay and the owner must go after the thief alone to get repaid. Also, we are referring here to the fact that a woman can be married by giving her an object with monetary value. So, in our case here where a man gave an object that he robbed or stole to a woman and says behold you are married me by this object, then if there was already was abandonment by the owner, then she is married. But abandonment by the owner alone does not cause ownership. Only abandonment with change of domain causes ownership. But here the change of domain occurred simultaneously with the given of the object to the woman; that is unless you say like rav shach that the change of domain refers to privileges the thief had before giving it back. what are these? you might ask. one is what you see in the rashba [R. Shmuel ben Aderet. Not the Rashba of Tosphot who is R Shimshon ben avraham] in Bava Kama page 33 where he says in the case where a e buyer plowed with stolen ox before it had to be given back, he does not have to pay for the use of the ox.

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תוספות בבא קמא קי''א ע''ב. אם יש מצב שנגזל חפץ והבעלים ייאשו אבל החפץ עדיין בשליטתו זה נחשב להיות חסרון בבעלות. זו קשה להבין. להיות ברור אני רוצה להביא תוספות. אם יש שני תנאים, יש ייאוש ושנוי רשות, וחפץ של אדם השלישי. אם אין ייאוש ולא שינוי רשות אז זה של הבעלים והם יכולים לתבוע הגזלן או אדם השלישי. אבל יכול להיות מצב ביניים. יש ייאוש בלי שינוי רשות או שינוי רשות בלי ייאוש. [המצב ביניים שיש חיסרון בבעלות גורם שאם החפץ קיים, יש להחזירו, ואם החפץ אינו קיים, אז אדם השלישי פטור לגמרי]. זה המצב האחרון ברור. החפץ שלו ואינו בשליטתו, ולכן אם הקדיש אותו אינו מוקדש. אבל אם יש ייאוש בלי שינוי רשות זה נראה להיות שלו לגמרי. אז למה אינו נחשב להיות שלו לגמרי-------יתר על כן, ברצוני לשאול זאת. תוספות גורסת שכאשר יש נטישה אך אין שינוי תחום, או שינוי תחום ללא נטישה, שאם החפץ בסביבה, עליו להחזירו. אך אם החפץ אינו בסביבה, אז הבעלים יכול לרדוף רק אחר הגזל המקורי כדי לקבל פיצויים. אך תוספות שואלות על כך שאם כאשר החפץ בסביבה, האדם השלישי חייב להחזירו, אז גם אם הוא אינו בסביבה, הוא צריך להיות אחראי. מדוע הוא אינו אחראי? תוספות משיבה שזה פסוק. אם החפץ שנגנב נמצא בצורתו המקורית (כעין שגנב), יש להחזירו. אך אם הוא השתנה, אז הבעלים יכול לרדוף אחר הגזל לבדו. ברצוני לשאול על כך שאותו נימוק צריך לחול כאשר לא הייתה נטישה ולא שינוי תחום. אך שם אנו אומרים שהבעלים יכול לרדוף אחר הגזל המקורי או אחר זה שתפס אותו מאותו גזל ואכל אותו. גם הוא לא צריך להיות אחראי על פי פסוק זה

I was coming back from the sea and it occurred to me something that is hard to understand in the second Tosphot on page 111 in Bava Kama. it is this. If you have a case where the owner has given up, but it is still in his domain, that is considered to be not his completely. But that is what is difficult to understand. The stolen object is considered to be totally in his domain, and yet the abandonment creates a lack or deficiency in his ownership. To be a bit clearer about what I am asking, let me bring Tosphpot. To Tosphot if the owner has given up and it has changed domain from the robber to another person, then that third person own the object completely and the owner can go after the robber alone to get repaid, not to that third person. but if there was no abandonment nor change of domain from the robber to a third person, then there is no question that the owner can go after the robber or the third person to get repaid. it is the middle case that Tosphot is saying creates in-between rate in which there can be a difference. if the object is still around, then it mut be given back to the owner. but if the stolen object is not around e.g. it was eaten, then the third party is not obligated in anything. the owner can go after the robber alone. But there are two ways, a middle state can be created. One way is there was abandonment, but no change in domain. Another is there was change in domain, but no abandonment. This last case is clear. If there was change in domain, then the owner owns the object, but it is not under his control, so if he would sanctify it, it would not be sanctified. It is that other case that I find difficult to understand. he gave up but it is still in his domain in ownership and under his control. why should that be considered a lack in ownership? Furthermore, I would like to ask this. Tosphot holds that when there is abandonment but no change of domain, or change domain with no abandonment, that if the object is around then he must give it back. But if the object is not around, then the owner can go only after the original robber to get repaid. But Tosphot then ask on this that if when the object Is around the third person must give it back, then even if it is not around, he ought to be liable. Why is he not liable? Tosphot answers it is a verse. If the object that was stolen is in its original form, it must be given back. But if it has changed, then the owner can go after the robber alone. I would like to ask on this that this same reasoning ought to appply when there was neither abandonment nor change in domain. But there we say the owner can go after the original robber or the one that grabbed it from that robber and ate it. He should also be not liable according to that verse. ]\-----------THERE Is something that is hard to understand in the second תוספות on page קי'א in בבא קמא. it is this. If you have a case where the owner has given up, but it is still in his domain, that is considered to be not his completely. But that is what is difficult to understand. The stolen object is considered to be totally in his domain, and yet the יאוש creates a lack or deficiency in his ownership. To be a bit clearer about what I am asking, let me bring תוספות. To תוספות if the owner has given up, and it has changed domain from the robber to another person, then that third person owns the object completely, and the owner can go after the robber alone to get repaid, not to that third person. But if there was no יאוש, nor change of domain from the robber to a third person, then there is no question that the owner can go after the robber or the third person to get repaid. it is the middle case that תוספות is saying creates in between מצבin which there can be a difference. If the object is still around, then it must be given back to the owner. But if the גזול object is not around )it was eaten(, then the third party is not obligated in anything. The owner can go after the גזלן alone. There are two ways a middle state can be created. One way is there was ייאוש, but no שינוי רשות. Another is there was שינוי רשות, but no ייאוש. This last case is clear. If there was שינוי רשות, then the owner owns the object, but it is not under his control. If he would sanctify it, it would not be sanctified. It is that other case that I find difficult to understand. יש ייאוש but it is still in his בבעלות של הבעלים המקוריים and under his control. why should that be considered a lack in ownership?

Bava Kama 111 A'B I want to explain what I think the Tosfot intends in Bava Kama 111. But first, let me bring the Mishnah and the Gemara. The Mishna says that if a thief gives what he stole to his children, they are not responsible, only the thief is responsible. Rav Chisda said that if someone stole and the owner did not give up and someone else takes the object and eats it, the owner can collect from each of them because the object was still in the owner's possession. The Gemara asks about this from the Mishna, which says that he can collect only from the thief, not from the children. Rav Chisda answers that the Mishna is talking about a case in which the owner gave up. The Tosfot holds that abandonment after a change of ownership does not confer ownership, and according to this assumption they are correct that Rav Chisda ruled and granted that if there is despair, one can only collect from the thief, not from the other. It does not matter whether the despair preceded the change of ownership or not. Even if there was a no change of ownership and the object was still in the owner's possession, it is still the same as the law of “his and not in his control”, which he cannot dedicate because he lacks ownership. Therefore, the owner can only collect from the thief. If it was owned totally by the owner, then the owner can collect from the robber or the second one that ate it

בבא קמא קי''א ע''ב אני רוצה להסביר מה לדעתי כוונת התוספות בבא קמא קי''א ע''ב. אבל ראשית, הרשו לי להביא את המשנה והגמרא. המשנה אומרת שאם גזלן נותן את מה שגזל לילדיו, הם אינם אחראים, רק הגזלן אחראי. רב חיסדא אמר שאם מישהו גזל והבעלים לא ויתר ומישהו אחר לוקח את החפץ ואוכל אותו, הבעלים יכול לגבות מכל אחד מהם מכיוון שהחפץ עדיין היה ברשות הבעלים. הגמרא שואלת על כך מהמשנה שאומרת שהוא יכול לגבות רק מהגזלן, לא מהילדים. רב חיסדא עונה שהמשנה מדברת על מקרה שבו היה ייאוש. תוספות אוחז שיאוש אחר שנוי רשות אינו מקנה ולפי ההנחה הזאת הם מדייקים שרב חסדה קפסק ותני שאם יש יאוש אפשר לגבות רק מן הגזלן לא מן השני. לא משנה אם היאוש היה קודם שינוי רשות או לא. היינו אפילו כשיאוש היה אחר שינוי רשות ועדיין החפץ בבעלותו של הבעלים, אף על פי כן זה כמו הדין של שלו ואינו ברשותו שאינו יכול להקדיש משום שחסר בבעלות. ולכן הבעלים יכול לגבות רק מן הגזלן

When Abraham was born and raised the area between the river was controlled by the Kasdim, but by the time that Abraham sent Eliezer, hi slave, to find a wife for Isaac, it was ruled by Aram. Aram is a totally different empire than the Kasdim. A we know this from the name of the area that Eliezer arrived at, Aram Naharaim, (that is the area ruled by Aram between the two rivers). now here it is proper to mention that later when Isaac and Rebeka sent Yaakov to find a wife they sent him to Charan, not Mesopotamia. that means that they had heard already the Laban the son of Nachor had already moved away from Mesopotamia to some midpoint between Mesopotamia and the land of Canaan, i.e., Charan ----------------------------------------------When אברהם was born and raised the area between the river was controlled by the כשדיים , but by the time that אברהם sent אליעזר, hi slave, to find a wife for יצחק, it was ruled by ארם. NOW ארם is a totally different empire than the כשדיים. A we know this from the name of the area that אליעזר arrived at, ארם נהריים, (that is the area ruled by Aram between the two rivers). now here it is proper to mention that later when יצחק and רבקה sent יעקב to find a wife they sent him to חרן, not Mesopotamia. that means that they had heard already the לבן the son of נחור had already moved away from Mesopotamia to some midpoint between Mesopotamia and the land of כנען, i.e., חרן