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What does "yi'ush eino kona" mean when a thief acquires stolen property? The Gemara (גמרא)'s discussion of kodesh and gezeilah reveals two approaches: Tosafot requires yi'ush plus shinui reshus for kinyan, while Rashi (רש"י) holds that after yi'ush the object is no longer the original owner's—though the thief must return it—making possible a hekdesh that is kosher but cannot fulfill the gazlan's obligation.
This shiur presents an in-depth analysis of Bava Kamma 56b, exploring the fundamental dispute between Rabba and Rav Yosef regarding whether yi'ush (despair of recovering stolen property) effects a kinyan (acquisition) for the thief. The Gemara (גמרא) asks: if we hold "stam gezeilah yesh ba'alim" (stolen property retains its original ownership), then even after yi'ush, the object should remain susceptible to tumas mishkav u'moshav of the original owner, contradicting a Torat Kohanim that states otherwise. Rabbi Zweig explains two fundamentally different approaches to understanding "yi'ush eino kona." According to the Ramban (רמב"ן)'s approach, yi'ush cannot work when there is "isur asul yado"—when someone is holding the object with an obligation to return it. This is comparable to a shomer (guardian) who cannot be me'ayash on something he is watching for someone else, because the object is already in his reshus for the owner. The question arises whether this applies to gezeilah, where legally the thief holds it for the owner (the Torah (תורה) requires return), but his intent is to keep it for himself.
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Bava Kamma 56b
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