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Can a shomer become a ganav (thief) through mere denial (kefira) without swearing, and is keffel (double payment) owed? The shiur examines whether tayn ta'anis ganav (claiming a thief stole it) requires a shvuah to trigger liability, and explores Rambam (רמב"ם)'s ruling that a shomer who secretly takes an item without the owner's knowledge pays keffel immediately—sparking debate over whether geneiva requires kinyan geneiva or merely an issur geneiva.
This shiur analyzes a complex sugya in Bava Kamma 53b concerning the parameters of tayn ta'anis ganav (a bailee claiming the deposit was stolen) and the requirement for keffel (double payment). The central question is whether a shomer who denies having an item becomes a ganav (thief) through the denial itself, or whether a shvuah (oath) is necessary to complete the act of geneiva. The Gemara (גמרא) discusses Tosfos's position that when karka (land) is exempt from shvuah, one might think there would be no liability for tayn ta'anis ganav either. However, Tosfos assumes that where there is no din of shvuah at all, perhaps the kefira (denial) itself would constitute tayn ta'anis ganav. The shiur explores this premise: normally, kefira alone does not make one a ganav because the shomer still owes a shvuah, so he has not yet "stolen" the item—the owner can still demand the oath and potentially recover the property. However, if there is no din of shvuah, the kefira itself might be sufficient to create a ganav.
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Bava Kamma 53b
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Why does the Gemara present a kal v'chomer for chuppah making kiddushin based on kesef not being maichel b'terumah, only to reject it? The shiur reveals that even the rejected kal v'chomer establishes a fundamental yesod: kiddushin is a kinyan for ishus (marital relationship), not merely a kinyan in hilchos kinyanim. The second kal v'chomer—from chuppah being gomeres—raises Tosafos's famous question.
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Why does the Mishna alternate between the language of "kinyan" (acquisition) and "kiddushin" (sanctification) when describing marriage? The shiur develops a fundamental distinction: marriage has two separate aspects—a kinyan dimension (ownership) and a kedusha dimension (sanctified relationship). Either aspect can initiate the bond, and understanding this dual nature resolves multiple textual and halachic questions throughout the sugya.
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