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When yei'ush ain koneh, what happens to ownership of stolen property? The shiur develops a fundamental chiddush from Rashi (רש"י): yei'ush removes the object from the victim's ownership even when yei'ush doesn't transfer it to the thief—it becomes ownerless but still must be returned. This yesod resolves why a thief can be makdish after yei'ush and why the korban remains pasul.
This shiur presents a fundamental reanalysis of the concept of yei'ush (despair of recovery) and its effect on ownership of stolen property, based on a careful reading of Rashi (רש"י) on Bava Kamma 56b. The Gemara (גמרא) discusses a case where a thief is makdish (consecrates) a stolen animal as a korban. The Mishna rules that such a korban is not valid. The Gemara analyzes whether this is discussing before or after yei'ush, and whether we hold yei'ush koneh (yei'ush transfers ownership to the thief) or yei'ush ain koneh (yei'ush does not transfer ownership). The standard understanding is that if yei'ush ain koneh, the stolen object remains the property of the victim. However, Rashi's language challenges this assumption. When Rashi says that if yei'ush ain koneh the thief must be "meshalem" (pay) the cheifetz back, rather than simply "return" it, and that this is because yei'ush ain koneh doesn't mean the object stays with the victim, Rabbi Zweig argues we must take these words seriously. Why would Rashi need to tell us the thief must return the object—isn't that obvious if it belongs to the victim? And why use the term "meshalem" (payment) rather than "machzir" (return)?
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Bava Kamma 56b
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When an animal damages crops, the Torah prescribes a unique payment formula based on multiplying the damaged area by sixty. Does this formula redefine the actual loss, or does it merely create a payment mechanism that still acknowledges the full damage sustained? The Gemara explores whether someone who ate in doubt should pay the higher-quality amount, examining how the principle of motzi me-chaveiro alav haraya applies when payments fall within the range of actual loss.
What makes testimony valid when different witnesses testify to different parts of the same event? The Gemara debates whether the principle of "davar v'lo chatzi davar" (complete testimony, not partial) disqualifies witnesses who testify separately to theft and slaughter. Rashi's approach reveals that the issue is not merely combining elements, but whether each witness's statement is independently meaningful.
Why is a ganav who sells a stolen animal on Shabbos exempt from the fourfold/fivefold payment? The shiur analyzes whether this exemption stems from kam lei b'derabbah or from the absence of a valid mechira. The Rashba's principle that matana resembles mechira when it is "nishtarish b'chet" is explored, along with the Rambam's position on hekdesh and the distinction between giving to bedek habayis versus mizbe'ach.
When a ganav shechts a stolen animal l'avodah zarah, why isn't he patur from payment since it's already isur hana'ah? The shiur explores the fundamental machloket Rashi-Tosafot on whether the isur derives from the act of shechita or from the din shechita itself. The Gemara's application of davar garem be'mamon ke'mamon domi extends the analysis to when borrowed animals become niskal.
