Baba Kama 94b - Kibud Av for a father who is a rasha

The Rambam (mamrim 6:11) says that a mamzer is chayev in kibud av, because one is chayev in kibud av even if their father is a rasha who does aveiros. Although he isn't chayev for hitting and cursing the father, אפילו היה אביו רשע ובעל עבירות מכבדו ומתיירא ממנו.

The Tur (end of 240 in Y.D.) argues. His proof is from our gemara that clearly says one is not obligated to return goods that their father stole since their is only a chiyuv of kibud av when the father is עושה מעשה עמך, not when the father is a thief.

The Beis Yosef justifies the position of the Rambam that the braisa and gemara are only speaking about goods that were taken as ribbis, but not about stolen goods. Therefore, the Rambam would hold that m'ikar hadin the torah doesn demand that the inheritors return ribbis that was taken by their father - אל תקח מאתו נשך, לדידיה אזהר רחמנא, לבריה לא אזהר רחמנא (unlike stolen goods that the children have an obligation to return). The mitzvah of kibud av will require them to return anything that they have not "inherited" from their father and still remains in their fathers possesion, but once they inherit it and it has become theirs, the mitzvah of kibud av doesn't require them to return it (becasue we pasken kibud av is only משל אב, not משל בן). So, when their father did teshuva and intended to return it but didn't get a chance to, it is as if it is still in the father's reshus since it was never meant to be inherited by them, and they are obligaed to fulfill kibud av and return it. But, when the father didn't do teshuva, although they are fully obligated in kibud av of their rasha father, they don't have to return it since they inherit the ribbis and it becomes theirs.

Based on the Beis Yosef's answer, when the gemara says that they don't have to return it because ונשיא בעמך לא תאור בעושה מעשה עמך, the gemara doesn't mean to say that they have no mitzvah of kibud since their father is a rasha. Rather, the gemara means to say that when the father is a rasha, they inherit the item, and therefore have no obligation to fulfill kibud by returning it since it becomes theirs. Rashi clearly doesn't learn like this because rashi writes: בעושה מעשה עמך - וזה לא עשה מעשה עמו ואינן חייבין בכבודו

The approach of the beis yosef only works if the braisa about davar m'suyam is speaking only about ribbis, not about gezel. Rashi (d.h. misuyam) who writes that it is speaking about gezel as well, will be forced to learn like the Tur that there is no mitzvah of kibud av for a father who is a rasha (וזה לשיטתו כדביארנו שהוא סובר כשיטת הטור). Shulchan Aruch (240:18) paskens like rambam, but rama paskens like tur. Taz also asks on the answer of the beis yosef why should we diffrentiate between a davar misuyam and not, since the son never inherits he should be required to return even something which isn't misuyam because it isn't his, even without kibud av - based on this he agrees with tur and rama.

A major question on the Tur and Rama is that if one is exempt from honoring their father who is a rasha, why do we need a special pasuk (kiddushin 32, shulchan aruch 240:15) exempting a son from kibud when the father tells him to do an aveira, since the father is telling him to do an aveira he is a rasha, so the mitzvah of kibud doesn't apply? The pischei teshuva (240:15) explains that one only assumes a status of אינו עושה מעשה עמך when he repeats the aveira multiple times, but just asking the son to do an aveira won't render the father a rasha. Perhaps another answer is that one only is considered אינו עושה מעשה עמך for violating a d'oraysa, not a d'rabonon. Therefore, we need the pasuk of אני ה' - כולכם חייבים בכבודי to teach that even if the father tells the son to violate a d'rabonon, he should listen (as the shulchan aruch 240:15) paskens.

Baba Kama 94a - Bracha on Issurim: בוצע ברך נאץ ה

The gemara says that R' Eliezer ben yakov holds that shinuy isn't koneh from the fact that he says if one steals wheat and converts it into bread, the bracha on hafrashas challah is "rejected" by Hashem. The gemara pushes off the proof - perhaps he holds that shinuy is ko'neh, but the bracha is rejected since it is a mitzvah ha'ba'ah b'aveira.

The Rambam (Brachos 1:19) paskens that one should not make a bracha on any forbidden food, regardless of whether he is eating it intentionally or unintentionally. Tosafos 67a seems to agree with the Rambam that regarding the bracha which mentions the name of Hashem, one should be machmir not to make the bracha. The Ra'avad disagrees, although one doesn't make a zimun on forbidden food, he does make a bracha. Our gemara seems to indicate that the Rambam is correct, that one does not make a bracha on forbidden food - the bracha is rejected by Hashem. How would the Ra'avad explain our gemara? The Rosh in Brachos sides with the Ra'avad and explains that the gemara doesn't mean to say that you don't make a bracha. Rather, the bracha that you make is disgusting in Hashem's eyes, but nevertheless one is required to make a bracha (and presumably it is more disgusting not to make a bracha). The kesef mishneh suggests that their machlokes may be pending on whether we have the girsa of "כיצד מברך", which indicates that there is a bracha.

R' Akiva Eiger (mishnayos brachos chapter 7) asks based on our gemara. According to Abaye who understood that the rationale for the bracha being rejected, is that it still belongs to the original owner so that the entire mitzvah isn't binding. Abaye is clearly understanding R' elazar ben yakov like the Rambam that he is saying one should not make a bracha, because the mitzvah of hafrashas challa isn't binding since the dough still belongs to the original owner. How can the Ra'avad and Rosh hold that one should make a bracha (just that Hashem is repulsed by it)? R' Akiva Eiger himself indicates that they will have to say that when the gemara pushes off Abaye and explains that shinuy is ko'neh, and the reason for the bracha being rejected is a mitzvah ha'ba'ah b'aveira, we are no longer compelled to explain that the bracha isn't made. R' Elazar ben yakov would hold that the bracha is made, just that since it is mitzvah haba'ah b'aveira Hashem is repulsed by it. Based on this approach we are forced to say that the Ra'avad and Rosh hold that there is a way in which one can fulfill the mitzvah even when it is a mitzvah haba'ah ba'aveira (such as Tosafos 67a quoting the R"i that whenever the kinyan is made before the mitzvah, he would fulfill the mitzvah, just can't make a bracha).

Baba Kama 92b - Secular courts - Throwing dirt into a Bor

Secular courts:

The gemara says that if one calls his friend and he ignores him, he can throw a wall down on him - rashi explains that this is clearly not literal, rather if one gives mussar and the person fails to receive it, don't bother to continue, rather let him suffer the fate of his aveiros. This peshat seems difficult in light of the gemara in baba metziah that says that "הוכח תוכיח" requires a person to give mussar many times, even if ignored the first time.

The Rosh explains this gemara differently - If one has a claim on someone else and the person refuses to go to a din torah, he can bring hi to a secular court to take from him what he rightfully deserves.

Throwing dirt in the well:

The gemara says that a well that one drank water from he should not throw dirt into. Rashi explains that anything that a person once used, he should not degrade. This implies that even though he no longer has a use for the item, he should have a certain level of hakaras hatov for the item, not to degrade it.

The Shita Mikubetzes writes that we find this concept by the miracles in mitzrayim that were performed by Ahron, so that Moshe would not have to be kofer tov against that sea and ground that protected him. He tells a story of the Rif once getting sick and the neighbor allowed him to use his bath house to recover from his illness. After some time the neighbor went into debt and was forced to sell his bath house to bay his debts. The Ri"f refused to sit on the din torah to force the sale of the bath house since he benefited from it. He writes:

ואם היה זה בדומם שאין לו הרגשה כל שכן וק"ו בני אדם המרגישים בהיזק ובתועלת שיהיה זה שנוי לעשותו והעושהו יוצא משורת המוסר ודרך ארץ וכו' ואם היה זה במי שקבל הנאה מבשר ודם כ"ש וק"ו באלוה יתברך שממנו נשפע הטוב הגמור שראוי להודות לו הודאה גמורה ולא יעשה מה שיקניטנו ולא מה שהוא שנוי לו

Ultimately, this concept is a mussar for how to show hakaras hatov to people and how to show hakaras hatov to Hashem.

Baba Kama 90a - חמץ נוקשה שעבר עליו הפסח ודבר הגורם לממון

The Ketzos HaChoshen (386:7) raises a question: If one destroys his friends chometz on pesach, he is clearly not liable for the damages since both on pesach and after pesach that chometz will be prohibited from deriving any benefit from. However, if one destroys "chometz nuksheh" of his friend, will he be liable to pay for the damages? The status of chometz nuksheh is that one is allowed to own it through pesach with the intent of using it after pesach, but during pesach one is not allowed to derive any benefit from it. The concept behind the practical scenario is whether one is liable for damages on an object which at the moment is not usable in any way, but has value in the sense that at a later time it will be usable. The ketzos writes that this would seem to be categorized as a דבר הגורם לממון, similar to what the gemara in pesachim 29a describes in the context of benefiting from hekdesh chometz during pesach. Hekdesh chometz will also be permitted after pesach, but during pesach one is not allowed to derive any benefit from it. Will this constitute a violation of me'ila - the gemara makes this dependent on the rule of davar ha'gorem l'mamon. Since we pasken that דבר הגורם לממון לאו כממון דמי, he is patur.

The ketzos raises a problem from our gemara, where the slave is sold and the original owner retains rights of use for the next 30 days, and the slave will then be fully owned by the buyer. R' Meir holds that the rights to use the eved is like a kinyan ha'guf, so that the din יום או יומיים to exempt the master for killing the eved applies to the original owner. The ketzos asks that since r' meir agrees with r' shimon that davar ha'gorem l'mamon is k'mamon (baba kama 71b), shouldn't r' meir hold that the ownership of the buyer is significant since after 30 days it will belong entirely to him? From this the ketzos is mechadesh that the concept of דבר הגורם לממון does not decide ownership, it is just a method of assessing responsibility for damage....

Many achronim take issue with the assumption of the ketzos that something which has no value now because it cannot be used but will have real value later is considered to merely be a davar ha'gorem l'mamaon. Perhaps hekdesh is different since its entire value is based on the ability to redeem it, therefore on pesach when no one will consider redeeming it, it has zero value. But something which can not be used temporarily such as chometz nuksheh, but will be usable at a later date, is considered to have real value now and the damager would be responsible.

Baba Kama 89a - Keeping a Wife without a kesuba

R' Meir says that it is prohibited for a man to stay married to his wife unless she has a kesubah. The purpose of the kesubah is to prevent him from divorcing her hastily. Being that upon divorce he will be required to pay a significant sum of money, he will likely be deterred from the divorce. The gemara is clear that this takana does not require that she be the receiver of the kesuba, because even if she were to sell the kesuba and someone else would be receiving it, the fact that he would have to pay someone would still deter divorce.

The Shulchan Aruch (66:3) paskens that if a woman looses or forgives her kesubah, she cannot continue to live with her husband until he writes her another one due to this takana. However, the Rama writes that the entire concern is only at a time when there is no other form of protection to prevent divorce, but nowadays where their is a cherem of rabbeinu gershom that prevents him from divorcing her against her will, it is not so vital that there be a kesubah. Although the rama says the minhag is not to rely on this, he indicates that me'ikar hadin, it would suffice. The chelkas michokek, beis shmuel and gr"a are all somewhat skeptical about the validity of this heter. We do find that when one rapes a woman and there is an issur d'oraysa preventing the divorce, one can be lax about the kesubah since he won't divorce her "easily". But, who says that a cherem is enough to fulfill this requirement! Furthermore, the Mishneh l'melech (ishus 10:10) proves from the Ran that even in a situation where it would be prohibited to divorce a woman against her will, a kesubah is still necessary. He proves this from the question that the Ran asks, how can a woman be mochel her kesuba, it will be a violation of living with a wife without a kesuba (tosafos by us asks the same question). From the fact that we don't give a very simple answer that when he swore not to divorce her against her will she can be mochel, implies that a kesubah is always necessary. Just as swearing can't replace the requirement of kesuba, so too the cherem of rabbeinu gershom cannot replace this requirement.

It seems to me that there is an even greater proof from our Tosafos against the Rama. Tosafos asks that when she damages her husband and owes him money, we should force her to sell her kesubah to a third party (to have money to pay the damages she owes him) and he would sign on the contract to prevent her from being mochel. Tosafos answers that by the husband signing directly to the third party, it would no longer qualify as a kesubah and would be a violation of the din of being married to her without a kesubah. We see from Tosafos that the takana d'rabonon was not merely that the husband should have to pay a particular sum of money if he would divorce her, but rather it must be in the form of a kesubah that is owed to her (even if she sells it, it is going through her and qualifies as a kesubah). So too the cherem d'rabbeinu gershom which is another method of preventing divorce but not using the concept of a kesubah, does not fulfill the takanas chachamim. 

Baba Kama 87a - Responsibility for damages as a kattan

The mishna says that חרש שוטה וקטן and עבד ואשה are both פגיעתן רעה. But, a woman and eved are technically liable for their damage just that they don't have money to pay with. Whereas a deaf, fool and child are not liable for their actions. Therefore, a woman and eved are responsible to pay after their situation changes and they have their own funds. But a deaf, fool and child remain exempt even after the child would turn into an adult. This is apparent from the mishna and even clearer in rashi who seems to explain the contrast that a woman and eved are really chayev just that they have nothing to pay from. The implication of rashi is clearly that a child is not chayev even if he would have what to pay from.

I mentioned earlier in baba kama that the hagahos ashri here understands from rashi 88b where rafram forced rav ashi to pay for burning a shtar b'yalduso, that a child is chayev to pay when he gets older for damages that he did when he was younger. This seems to directly contradict the implication of rashi here that a kattan will always be patur for his actions?

When one damages there are 2 concepts that require him to pay. One is כלפי שמיא where he violated a "prohibition" and must make amends by repaying the damage. The second is the very practical aspect of compensating the person for the loss that he caused. It could be that the mishna is saying that a child is not liable to compensate for the loss that he caused when he is younger, but the concept of the aveira still exists to some degree. Similar to what the Rama writes in Hilchos Shabbos 343 קטן שהכה את אביו או עבר שאר עבירות בקטנותו אע"פ שא"צ תשובה כשיגדל מ"מ טוב לו שיקבל על עצמו איזה דבר לתשובה ולכפרה אע"פ שעבר קודם שנעשה בר עונשין

Just that the hagahos ashri takes the concept of the rama a step further, it is not merely a chumra or l'fnim m'shuras hadin, but rather כלפי שמיא he is chayev to make amends for actions that caused a loss or damage to others. Therefore, in dinei choshen mishpat he is not chayev to repay, as our mishna implies. But in "issur v'heter" he is chayev to repay.

Baba Kama 87a - Blind People and Mitzvos

Tosafos (here, and kiddushin and rosh hashana) writes that even according to R' Yehuda that blind people are exempt from mitzvos, that is on a d'oraysa level, but m'drabonon they are chayev in mitzvos. Although women who are patur from time bound mitzvos are even patur on a d'rabonon level, Tosafos assumes that by a blind person the rabbonon would have definitely been mechayev them in mitzvos - סומא אי פטרת ליה מכל המצות אפילו מדרבנן, אם כן הוה ליה כמו נכרי שאין נוהג בתורת ישראל כלל

The argument is that a woman still has some mitzvos that she is chayev in, but if a blind person is exempt from mitzvos, there is no noticeable difference in behavior between him and a goy, so chazal would have been mechayev him in mitzvos. Clearly, this argument is only applicable to a blind person. Chazal never entertained being mechayev a deaf person or fool in mitzvos m'drabonon, because their exemption is attributed to a lack of da'as, whereas a blind person according to r' yehuda who is not exempt due to a lack of da'as rather a gezeiras hakasuv, it is logical for chazal to be mechayev them.

The Nodeh B'yehuda (tinyana, o.c. 112) quotes the pri megadim (psicha o.c. 29) who says that even according to r' yehuda a blind person is chayev m'doraysa in negative commandments, he is only exempt from mitzvah aseh. The Nodeh B'yehuda says that the language of Tosafos implies that he is like a goy and would be entirely exempt from everything. Although the pesukim imply that a blind person is completely exempt from everything, the diyuk from tosafos isn't so strong (mahartz chiyus also makes this diyuk). Ultimately the Nodah B'yehuda is medayek from the subtle language of Tosafos in various places. In Baba kama he says that the language of אין נוהג בתורת ישראל כלל implies an exemption even from lo ta'aseh. But the language of Tosafos in Rosh hashana 34a דאינו נוהג כישראל כלל can be understood like the pri megadim, because even if he abstains from prohibitions, he is still not being "noheig ki'yisrael" without any positive commandments.

The Nodah B'yehuda suggests that if a blind person is exempt even from lo ta'aseh he would not be able to make a bracha on mitzvos aseh that the rabbonon imposed on him since he is exempt from "lo tasur" (which according to the gemara in shabbos is the source for being able to make brachos on rabbinic mitzvos). But if he is obligated in lo ta'aseh, then after the rabbonon obligate him in positive mitzvos, he is able to make a bracha on them. However, one can make an argument that since other jews can make brachos, even one who is not obligated in a mitzvah and performs them can also make brachos. Tosafos in kiddushin 31a proves that women make a bracha on mitzvos they are exempt from, from the fact that a blind person makes brachos on positive mitzvos. What is the proof, perhaps a blind person can make a bracha since he is rabbinically obligated whereas a woman isn't even obligated rabbinically? The Nodeh B'yehuda explains that if we assume blind people are patur from lo ta'aseh, they too should not be able to make a bracha even if they are rabbinically obligated in the aseh. From the fact that they do proves that one can make a bracha even when the obligation doesn't apply to them, therefore women can also make a bracha.

Baba Kama 85b - Evaluating Nezek / Baba Kama 86b - Boshes

Nezek/sheves:

The gemara says that when nezek is evaluated we are already compensating for the fact that the person will not be able to us his hand for his old job, so the sheves will only consider the job that he is able to do with a missing hand and the fact that he is temporarily out of work and can't even do that. Therefore, Tosafos points out that if the injury is only temporary so that the nezek won't prevent him from returning to his old job, the sheves will be evaluated based on what he does. For example, a surgeon who will be out of work for a month will be compensated as a surgeon, not merely as a kishuin watchman. Basically, the nezek and/or sheves will always take into consideration the job that a person actively does. What happens in a situation where someone is in school studying to be a surgeon - do we evaluate his nezek as if he has 50 years of performing surgeries ahead of him or do we say that since now he is not a surgeon he is receives only minor compensation? Furthermore, if one is not even in school to study to be a surgeon but plans on pursuing a career in surgery and is then injured, can he claim that since he wants to be a surgeon he should receive compensation for the 50 years of surgery that he would have been performing? Presumably not. We always evaluate the chance that a person can become anything, and depending on the likelihood of him pursuing a career in a more profitable job, he would receive a higher level compensation.

Boshes:

The gemara ponders a fundamental question: Is Boshes a payment for the feeling of embarrassment, or for the degradation despite the person's feelings? If it is the feeling of embarrassment then one who is embarrassed in his sleep and then dies before awakening will not be entitled to boshes, but if it is the fact that he was degraded then his family would be entitled ot claim boshes. The gemara concludes (as tosafos points out) that it is the feeling of embarrassment and therefore a child will sometimes receive boshes, and sometimes not, depending on his cognitive abilities to feel embarrassed. Based on this, we can ask regarding a shoteh. The gemara says that a shoteh is not capable of feeling embarrassed. The gemara in Rosh Hashana discusses an עתים חלים עתים שוטה, some sort of bipolar disorder where he cycles on and off from "normal" to "abnormal". If one embarrassed a shoteh when he was a shoteh, but then the shoteh heals and is embarrassed about what happened, would the mevayesh be responsible? Do we say that since at the time that the act was done he was a shoteh, the mevayesh is exempt, or do we say that since the chiyuv of boshes is for the feeling of embarrassment the mevayesh is chayev? I would assume that the mevayesh would be chayev - any thoughts?

Baba Kama 85a - Reshus to Doctor to Heal

The gemara darshens that the permission is given to doctors to heal. Why do they need permission? What is it coming to exclude? Both Rashi and Tosafos say that it is coming to exclude the possibility that we view the illness as a gezeira from Hashem, and a human being who would try to heal would be undermining the gezeiras hamakom. However, Rashi implies that this would be a concern regardless of whether the injury was caused by human accident or by an illness beyond human control, whereas Tosafos says that this would only be a concern by illness that was not brought on by a human accident. Nonetheless, the Torah says that the doctor is given permission to try his best to heal. The Ramban in Torah HaAdam offers another approach, that a doctor could legitimately be concerned that he will mess up and cause the person to die sooner. The Torah is teaching that the doctor should not abstain, rather ther "permission" is given to medical experts to try, even though they may mess up. Both the approach of Rashi and Tosafos, and the approach of the Ramban, understand that the term "reshus" doesn't exclude a mitzvah, because it is surely a mitzvah. The term reshus is just to exclude one of the 2 possibilities above.

Based on the Ramban's approach that a doctor should take the risk, even though if he messes up he will cause the patient to die sooner, he asks a question on the gemara in sanhedrin 84b that says a person should not pop a pimple to remove the puss for one of his parents because he may cause a wound which would be a chiyuv misah. Just as one should not enter into a situation where they may inadvertently cause a wound to their parent, they should also not enter a situation where they may inadvertently kill someone? In the Ramban's first approach he explains that when it comes to removing splinters or popping a pimple, there is a definite advantage to someone else doing it rather than a child because for someone else it is not a chiyuv misah if they cause a wound, but for the child it is. However, something like blood letting where the injury itself is considered productive, it is not considered a chavala at all and is permitted even for a child. Regarding the concern that if too much blood is taken the patient may die, there is also no difference between a parent and a child because one way or the other the doctor will be entering into a safeik misah situation, but it has to be done. Based on this approach of the Ramban the only time a child must be makpid not to serve as a physician for his parent is when it is a minor procedure where there is a concern that he will make an chaburah that is not necessary for healing. But a major surgery would be permitted because regarding the chaburah, it is not considered a chaburah since it is the act of healing itself, and the concern of inadvertently killing the patient is the same whether it is a stranger or a child.

Baba Kama 82a - O'nah

ושמרו בני ישראל את השבת - ראשי תיבות ביאה

From the Rosh

See the pilpula charifta who explains that the pasuk in the gemara of erev shabbos to erev shabbos is by torah which would apply to talmidei chachamim, but since the takanas ezra of eating garlic is for everyone, the Rosh cited a more general remez to the idea of o'nah on erev shabbos. It seems that the limitation of "erev shabbos l'erev shabbos" is talmidei chachamim, but the advantage of erev shabbos which is encouraged by takanas ezra is for everyone.

Baba Kama 82a - Chafifa

Tosafos quotes Rabbeinu Tam that the takanas ezra of chafifa is only on the hair, not on the rest of the body. Really it is a machlokes rishonim (see my sefere mayim rabim 287), but m'ikar hadin we paskin like rabbeinu tam. One of the proofs of Rabbeinu Tam is the gemara in Nida שתהא אשה מדיחה בית קמטיה במים, from which Tosafos deduces that only the folds in her body need to be washed, not the rest of her body. However, the sidrei tahara (199:9 - quoted in my sefere 288) says that according to the maharik who says that when the gemara says בית קמטיה במים, it means water to the exclusion of other liquids, Tosafos has no proof that the rest of the body doesn't need to be washed - maybe it needs to be washed just that בית קמטיה is special in that we insist on water, but the rest of her body although it needs to be washed, it can be washed with other liquids.

Also, the Cheshek Shlomo (R' Shlomo Vilna) quotes the sefer hateruma who asks why the takana of chafifa was only for women and not for men who are toveling for taharos? The sefer Hateruma says based on a yerushalmi in pesachim that since men are frequently going to the mikva for taharos, we didn't require chafifa for them. The cheshek shlomo asks that the yerushalmi implies that only kohanim don't need chafifa, but non kohanim would. Cheshek shlomo suggests that perhaps the chatziztah that we are concerned about is only a mi'ut that one is makpid about, which women tend to be makpid about, not men. I don't understand why he doesn't simply say that men tend to have short hair whereas women tend to have long hair, so chafifa is more necessary for women (maybe the whole long hair for women or short hair for men is a modern style!). But, in truth it seems that the cheshek shlomo forgot a tosafos in chulin 10a who asks on a mishna which is pashtus speaking about a man going to the mikva (it is all b'lashon zachor), from chafifa. Clearly Tosafos implies that even men require chafifa. In fact, Tosafos at the very end quotes the same yerushalmi in pesachim as a source that only kohanim don't need chafifa ans suggests that the mishna was speaking about kohanin, which would imply that men who aren't kohanim would need chafifa for taharos.

Baba Kama 82b - Doing Business With Issur Ha'na'ah

The gemara says that there was a gezeiras Chamonaim not to raise pigs because of a ma'aseh that occurred when they placed a pig in the basket that was meant for korbanos. Tosafos asks, even without this special gezeira, there is an issur to do business with any non-kosher livestock. Rabbeinu Tam answers that the prohibition to do business with non-kosher livestock is only when they are meant for food, but the issur on pigs is for any purpose. It isn't clear from Tosafos whether the nature of this issur of doing sechorah with non-kosher animals is d'oraysa or d'rabonon. Although Tosafos quotes a pasuk, it may only be an esmachta. However, the nimukei yosef writes explicitly: דאילו לצורך אכילה מדאורייתא אסור לעשות סחורה בכל דבר טמא

From the fact that Tosasfos question is, "why do we need a special issur on pigs, there is a more general issur on all non-kosher animals", rather than asking "why do we need a gezeira chamonaim, pigs are already included in a more general issur d'oraysa", implies that they hold it is only d'rabonon [but tosafos in pesachim says it is d'oraysa].

This is a major discussion in the Taz (y.d. 117:1). Initially the Taz quotes the Rashba who says that it is assur to do business with non-kosher animals because of a gezeira that you may come to eat it, implying that it is d'rabonon. He asks that the gemara in Pesachim 23 implies that it is d'oraysa, and suggests that maybe this is similar to what the gemara says in chagiga 18a about work on chol hamoed; due to a contradiction in pesukim the chazal have the ability to interpret the d'oraysa and decide what is assur and what is mutar. They decided to be magdir the issur based on the concern that one may come to eat it. But, he then quotes the opinion of Terumas Hadeshen and other who state explicitly that it is only d'rabonon (from there he is compelled to say his famous chiddush that something which is explicit in the torah, chazal wouldn't be gozer on).

What is the nafka mina whether the issur is d'oraysa like the nimukei yosef says, or d'rabonon as the taz concludes? The Mishneh l'melech (cited by beis meir) says that a safeik issur would be assur if it would be d'oraysa but mutar if it is only d'rabonon. It would seem that another difference would be whether one can invest without being actively involved (such as owning significant shares in a non-kosher restaurant). If it would be assur d'oraysa, it would seem that the issur is to benefit from issur achila and would be assur, but if the concern was just that he may come to eat it, it should be mutar since he is not at all involved with it. But, R' Shlomo Eiger writes(quoting d'var shmuel) that even if the issur is only d'rabonon out of concern you may come to eat it, it is still assur to invest because chazal made a lo p'lug - no distinction when they created the issur.

The Shach (1) raises a question whether or not it would be permitted to do business with livestock that is meant for eating, but the jew is not selling it for food. For example, if one would sell shellfish like lobster that is normally eaten for the purpose of making soap. Tosafos (by us) says that it is permitted, but the rashbah who says the concern is that one may come to eat it, implies that it is assur since even if his purpose is not for food he may come to eat it. The Shach (2) also suggests that the nature of this prohibition may be a chashad/ma'aris ayin type issur, in which case it would be mutar if it is not for the purpose of food.

The Mateh Yehonasan (R' Yehonasan Eibischitz) has a brilliant approach, combining the rashba of the taz and the rashba of the shach, to prove that the rashba holds the issur is only d'rabonon. Tosafos is trying to explain why we need a special gezeira on not raising pigs, which compels them to say that if it is being sold for the purpose of food it is assur due to sechorah, but if it is being sold for a non-food purpose, even if it is usually eaten, it would be mutar - except for pigs that they made a special gezeira on. Now, according to the rashba (as understood by shach) that if it is usually eaten it is always assur, then pigs which are certainly eaten should have been assur anyway and shouldn't need a special gezeira - so Tosafos question would return in full force. This would be a problem if we assume the issur of sechorah is d'oraysa as the nimukei yosef says. But we can explain the opinion of the rashba (as understood by shach), if he holds that the issur sechorah is only assur d'rabonon (as the taz understands from the rashba). It is very possible that the gezeira on pigs which was at the time of the chashmonaim predated the more general gezeira against doing business, which would circumvent Tosafos question. Based on this pilpul the Rashba must hold that the issur sechorah is only d'rabonon, not d'oraysa (as the Taz understood in the end).

Baba Kama 80 - Seudas Mitzvah

The gemara tells about Rav, Shmuel, and R' Asi all coming to a שבוע הבן or a ישוע הבן. Rashi comments that the שבוע הבן refers to a bris milah, whereas the ישוע הבן refers to a "party that was done for pidyon haben". The maharsha (agados) points out that from rashi we find a source for making a party for pidyon haben, but is not a source for making a party for a bris milah. The maharsha seems to understand that the requirement to make a party for pidyon haben is better sourced than the requirement to make one for bris milah.

However, the Maharshal (yam shel shlomo 37), in his famous discussion about seudas mitzvah asks a question from the gemara in chulin 95b was not to eat at any "סעודת הרשות". How then can Rav join in the seudah? The maharshal explains the question - בשלמא מילה, הסעודה גופא היא שמחת מצוה כמו סעודות חתן שנאמר "שש אנכי על אמרתך" אבל פדיון הבן ליכא סעודת מצוה להדיא. The maharshal clearly understands that whether it was milah or pidyon haben, Rav was joining and eating at the party. He assumes that the requirement to have a seudah for milah is more basic than having one at pidyon haben. Since the seudah of pidyon haben is only a "reshus", how could Rav join and eat ?(Rashi in chulin seems to avoid the question by saying that the seudah was a בת ת"ח לע"ה which is worse than just a reshus).

From this the maharshal is mechadesh a major yesod that any seudah whos purpose is to give praise to Hashem and either publicize a mitzvah (such as pidyon haben) or a miracle (such as the birth of a child which is Rabbeinu Tam's explanation of ישוע הבן i.e. a shalom zachor) qualifies as a seduas mitzvah.

The source for a siyum on a masechta of gemara qualifying as a seudas mitzvah, the maharshal says is from a gemara in shabbos 118b that Abbaye would make a party when he would see a talmid chacham finish a masechet (the maharshal then launches into a suggestion to make the bracha of השמחה במעונו at a siyum, which he retracted from after he felt that it was the reason that a siyum he once attended was totally ruined). At the end of the perek, the maharshal continues to show from this gemara in shabbos that even those who aren't actually finishing the masechet should celebrate with the one completing the masechet, just as we find that abbaye would make the seudah for his students even when he didn't actually learn it with them. The Maharshal also points out that the gemara in Ta'anis 30b cites that one of the reasons for establishing a yom tov on the 15 of Av was because it was the day that they completed the mitzvah of cutting the wood for the mizbeiach. Just as there is an inyan to make a seudah and yom tov upon the completion fo a mitzvah, so too with the completion of a masechet because "השלמת הספר אין לך מצוה גדולה מזו". As suprising as it may seem, the seudah at the siyum masechet seems to be better sourced as a seudas mitzvah, more than bris milah (which the maharsha questions) and pidyon haben (which the maharshal initially questioned).

Baba Kama 79b - Difference between a ganav and gazlan

The gemara says that the penalty of paying keifel and daled v'hei, is only for a ganev who hides his actions from people, not for a gazlan who steals in public. Why? Because a ganev expresses a special chutzpah by showing that he is afraid of people but not G-d - כביכול עשה עין של מטה כאילו אינה רואה ואוזן של מטה כאילו אנה שומעת. But a gazlan at least equates the kavod of Hashem with the kavod of people, so there is less chutzpah in his actions. Many years ago (14 Teves 5761), I had a question based on the halacha found in Hilchos Shechita (siman 2) - One who violates Shabbos in public is considered a mumar for the entire torah tantamount to one who worships avoda zara, and his shechita is passul just at the shechita of a goy. But, one who violates shabbos in private, although he is not trusted, so long as there are mashgichim who determine that he shechted properly, his shechita is kasher. Based on the gemara's logic by ganav and gazlan, we should consider a mechalel shabbos in private to be worse than a mechalel shabbos in public?

R' Moshe (Igros O.C. 1:33) raises this question and based on it is mechadesh an important yesod. It is not clear why a mechalel shabbos in public is so severe, but R' Moshe suggests that one who violates shabbos in public is not just a מומר לתאבון, but the fact that he is doing it in public indicates that he is a מומר להכעיס. Although the concept of the gemara is true, that one who steals in private and hides from G-d is worse, that is when both the act in private and the act in public are for the sake of filling his desires - לתאבון. But when one violates shabbos in public he enters a new realm of being a מחלל שבת להכעיס, which is certainly worse than merely being motivated by desires. Even if deep down he is only doing it to satisfy his desires, דברים שבלב אינם דברים and the act is an act of להכעיס. Based on this he suggests that this only applies at a time when people understand the severity of shabbos so that when one violates shabbos publicly, it is an indication that he has a complete disregard for the shabbos, but nowadays where people no longer take shabbos seriously, and their desires would bring them to chilul shabbos in public just as fast as it would bring them to chilul shabbos in private, even one who is mechalel shabbos in public will not have the status of a goy (therefore his shechita is kasher and he can be counted for a minyan).

I had an alternate approach to answer this question. Stealing is an aveira בין אדם לחבירו that every society recognizes as wrong and destructive. It is part of human nature to consider theft to be bad, and is inherent in human nature to try and hide these actions from others. When one hides these actions from people because he is worried that people will think less of him, or may catch him to punish him, he is outwardly displaying a fear for people that exceeds his fear of G-d. Since it is part of human nature to hide acts of theft, we assume his intention is to hide it from other people. However, Shabbos is בין אדם למקום, and therefore the violation of shabbos is not considered bad by human nature. When one hides his chilul shabbos from others, we assume that it is not because he is afraid of people, because people don't view chilul shabbos as inherently bad. So why would he hide his actions from people? We assume his attempt to hide his chilul shabbos is out of respect for Hashem, rather than trying to hide from Hashem. But when he is mechalel shabbos in public, we consider it to be a lack of respect, violating shabbos in the open showing no regard for it at all.

Baba Kama 75a - Mo'deh B'knas

There are two dinim in admitting to a k'nas: 1. Admitting is not regarded as a hoda'as ba'al din to be mechayev himself to pay k'nas because only eidim can force one to pay k'nas. 2. The hoda'ah is not just an inability to be mechayev, it is actually an exemption, therefore even if eidim show up later, he would not be chayev. The machlokes in the gemara about מודה בקנס ואח"כ באו עדים is a fundamental argument whether the concept of hoda'ah is that it is not powerful enough to force the payment of k'nas, but is not an exemption, or do we view it even as an exemption so that even when eidim come after to be mechayev him, he remains exempt.

R' Hamnuna (who is supported by tanaim) makes a peshara. If the hoda'ah is not mechayev him to pay even a principal payment, we assume that the entire goal of his admission is to exempt himself. That type of hoda'ah does not have the status of "hoda'ah" to be an exemption, it is just not enough to be mechayev him. Therefore, he is patur until eidim show up, but at that point he is chayev. However, when he is modeh in a way that he is mechayev himself to pay the principal through his admission, we regard that hoda'ah as a real hoda'ah that serves as an exemption to patur him even when eidim come later. Rashi (d.h. she'harei) makes it very clear that hoda'ah is only an exemption when it is done with the right intention, namely to return the money that was damaged or taken. Why does his intention make a difference? It seems that the concept behind k'nas is to prevent the crime. Therefore, when one steals and is mo'deh to the principal he is regretting the crime he committed and doesn't need any "inspiration" or push to avoid it in the future. But, if one is merely admitting because he wants to exempt himself from paying, which we assume to be the case when the admitting isn't mechayev him to pay a principal amount, he still needs the penalty as a preventative measure for the future, and therefore is going to be chayev when eidim come later.

Baba Kama 74b - R' Gamliel Freeing Tevi (his slave)

The gemara says that when R' Gamliel blinded the eye of Tevi his slave, he was "very happy". Rashi explains that he was happy because he really wanted to set him free, but was unable to do so since freeing a slave is a violation of an aseh, but since he blinded him, he would be free. [The ya'avetz raises a technical problem - R' Gamliel certainly didn't blind him intentionally since that would be assur, rather it was done accidentally (a proof to this is that he didn't do it until now), but the gemara says on 26b that he would only go free if he "intended to destroy him".]

It seems that Rashi would disagree with the Ran (gittin 20b b'dafei ha'rif) who says that freeing a slave follows the same rules as "lo sei'chanem", that it is only prohibited if done for the purpose of the eved, but not if done for the need of the master. Based on the Ran it should have been permitted for R' Gamliel to free his slave since it brings joy to himself and is not for the benefit of the slave. Can we deduce from this rashi that he disagrees with the Ran and maintains that it is assur even for the benefit of the master? It seems to me that Rashi here is not necessarily against the Ran (meaning that even the Ran would hold that R' Gamliel wouldn't be allowed to free his slave for the purpose of giving him joy). The joy that R' Gamliel had was not a selfish joy, rather it is because he loved tevi so much that he wanted to set him free for his own sake. Even the Ran would agree that if the only benefit to the master is that he is happy to benefit the slave, would not qualify as a selfish benefit to permit the freeing of a slave.

Baba Kama 74b - DNA evidence in Halacha

I previously posted in Gittin, that it would seem that DNA would qualify as a siman muvhak in halacha - http://hearos.blogspot.com/search?q=dna

Subsequently, I found in a sefer called "atzei besamim" (16) from r' mendel senderovic (Milwaukee), who has a very nice discussion about the admissibility of DNA evidence in beis din. The issue begins with the poskim not willing to allow blood testing to be sumbitted to determine paternity in a beis din. He mentions that the tzitz eliezer (13:104) strongly rejects the use of blood testing for paternity, but the proofs that he cites are very weak (bordering on purim torah). The tzitz eliezer also comments that we can't admit evidence that relies on scientific discoveries, since these things are often just theories that are disproved. However, regarding DNA evidence the margin of error is so slim, and there is hardly room for these types of errors, and is as good as a picture. R' Senderovic suggests that perhaps the tzitz eliezer was writing this at a time when this type of testing wasn't as clear, but perhaps he would feel differently nowadays. In conclusion he agrees with the approach of R' Zalman Nechemia Goldberg and R' Elyashiv who consider DNA evidence to be a siman muvhak to be matir an aguna and determine the paternity of a child.

What about a situation which requires actual "eidus", not just a siman muvhak - Can DNA evidence be considered like "eidim" or perhaps even better than "eidim"? Although at first glance, it wouldn't seem at all plausible, there is a proof from our gemara that eidus can sometimes be achieved without eidim. The gemara says that if a group of eidim testify that reuven was killed, even if 100 witnesses would contradict them, the concept of תרי כמאה would not allow us to give malkus to the original group for lying. Yet, בבא הרוג ברגליו, when the victim shows up in beis din, we can determine conclusively that he wasn't killed and give malkus to the original group for lying in court. The maharatz chiyus points out that even if reuven shows up, the original group can claim that it isn't actually him, so that 1000 people claiming that it is reueven, should not help to convince us that the original group deserves malkus - so why does the gemara say that they get malkus? The maharatz chiyus concludes from here based on tosafos in yevamos 87a - דבדבר הידוע לכל העולם לא שייך תרי כמאה, וכיון שהאיש הזה ניכר לכל העולם לא מועיל אמירת העדים שאמרו שנהרג, ודבר זה אין נופל בגדר עדות כמו שלא יועיל אמירת שני עדים על עץ שהוא אבן והכחשת דבר שניכר בחוש, ונכון

Based on this approach, factual evidence such as DNA which is far more conclusive that circumstantial evidence (which is not admissible), with a margin of error close to one in a trillion, should be even stronger than בא הרוג ברגליו - they would both not account for an identical twin (i think). Being that DNA is scientifically considered "fact" as much as בא הרוג ברגליו is considered fact, it should be even stronger than eidim to work not only in aguna cases but even in cases where "eidim" would be necessary.

כמובן, i am only pointing this out as something to think about - ולא למעשה

Baba Kama 73a - Which group of witnesses to believe?

In a situation where 2 groups of witnesses contradict one another about the event, it is classified as עדות מוכחשת where we have no reason to believe one any more than the other. Under these circumstances the gemara in baba basra has a discussion about what to do - it is a safeik so follow chazaka, but one thing is clear, we don't believe the later group any more than the first. However, if the second group doesn't testify about the event, rather about the validity of the first 2 as being witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a chiddush, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically don't accept their testimony.

Rava (in the first lashon) holds that eid zomeim is a chiddush and therefore only becomes passul from the time of the hazama, and not retroactively from the time of the testimony. Abaye would presumably agree with rava that eid zomeim is a chiddush, just that it makes no sense to passul them from the time of the hazama, therefore we passul them retroactively from the time of their testimony. It seems that the concept of "chiddush" by eid zomeim, is that rather than considering it to be a case of עדות מוכחשת where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosafos who explains that the chiddush of eidim zomimin, more that contradictory testimony is either that the second group is entirely believed, or that the first group is definitely passul not just a safeik. I am assuming like tosafos second approach that the chiddush of eidim zomimin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a chiddush to directly passul the first or be machshir the second, rather it is a chiddush in classification). 

Why is eidim zomimin somewhere in between? In essence the second group are not making a character judgement, they are only contradicting the facts - "these 2 could not have possibly witnessed what they claim to have witnesses since they were with us elsewhere". Had it not been for the chiddush Hatorah that we believe the second group, we would view it as if they just contradict the first group about the events, where we have a real safeik who to believe. We would interpret their intent to simply be "the event was not witnesses by these 2 eidim because they were with us elsewhere". But the torah is mechadesh that we are not to regard the hazama as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why? Because when testifying about an event it is sometimes possible to misinterpret the events, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by eidim zomimin the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location, have a fatal character flaw just as gazlanim do, and therefore they are not admissible as witnesses in any court.

Baba Kama 71a - Shliach l'dvar aveira for tevicha/mechira

The only case that the gemara is able to find where one can slaughter the stolen animal on shabbos and pay 4 or 5 is when the thief himself doesn't do the shechita, rather his agent does it for him. Because had the thief done it himself we would say "kim lei b'draba minei" and would not be chayev to pay. The gemara questions how we can have a situation where the shliach does an aviera, and the sender who is the thief is chayev as if he did it himself - אין שליח לדבר עבירה. The gemara says that we compare tevicha to mechira, just as mechira requires the assistance of someone else, so too tevicha can be achieved through the assistance of someone else. The gemara seems to be saying that this is actually an exception to the rule, and we say that for tevicha - יש שליח לדבר עבירה, as if the thief himself did the tevicha.

There is a machlokes rashi and tosafos in kiddushin 42b ( i think that i blogged about it before), whether in a situation where the shli'ach is unaware that it is an aveira, whether we say יש שליח לדבר עבירה. Tosafos opinion is that there would be shlichus in that case to make the sender liable. Here too, Tosafos 79a (d.h. nasnu) points out that rather than saying tevicha is an exception to the rule of אין שליח לדבר עבירה, it could have said that the case is where the shli'ach is unaware that it is stolen, so that the sender (thief) would be liable to pay 4 or 5. According to Rashi, where the sender is never liable regardless of whether the shliach knew about it being stolen, it works out that we are forced to say that this case is an exception to the rule.

Why couldn't the gemara say that even though אין שליח לדבר עבירה (either because the shliach was aware that it was stolen, or like rashi that it doesn't matter whether he knew or not), the thief would still be chayev 4 or 5. The concept of אין שליח לדבר עבירה says that the aveira is violated by the shliach rather than by the sender, but nonetheless the shlichus is still in effect and it is as if the sender slaughtered the animal. From the fact that the gemara understands that this must be an exception to the rule of אין שליח לדבר עבירה, the gemara implies that when we say אין שליח לדבר עבירה the entire shlichus is void. Meaning, aside from not considering the averia to be violated by the sender, we break the shlichus entirely as if he were never sent by the sender. This issue is really dependent on 2 answers of Tosafos in Baba Metzia 10b, whether the shlichus is valid (implication of first answer) or void (second answer) in a case of an aveira. This gemara seems to imply that the shlichus is void which is a proof to Tosafos second answer.

Baba Kama 68a - Tevicha and Mechira

The gemara says that there is a machlokes r' nachman and r' sheishes whether the violation of "stealing and selling" applies only when the sale is actually binding, or is one chayev to pay 4 and 5 even when the sale is not actually binding (such as prior to yi'ush). R' Nachman holds that even if the sale isn't actually binding one is chayev just for the action of attempting to sell. R' Sheishes holds that one is only chayev if the sale is actually binding, just as tevicha is actually binding.

The rashash discusses how this fits with the discussion in temurah about כל מידי דעביד רחמנא לא תעביד, אי עביד לא מהני - where abaya and rava argue whether by the torah placing an issur, it is preventing the action from being binding. For example, the torah says that one cannot divorce after motzi shem ra - they argue whether the divorce will be effective. The rashash suggests that in our gemara all would agree with rava that אי עביד לא מהני and one can be punished just for the action, even though it is not binding. His rationale seems to be that according to r' nachman you are getting malkus just for going through the motions of selling, even though it is not binding. Even R' sheishes only disagrees that the sale must be binding because we learn it from tevicha, but in concept he will agree that one can get malkus for the action. This seems to be like rava who says that one can get malkus even though it isn't binding, not like abaya who says that one can get NOT get malkus unless the act is effective.

The Chavos Da'as (y.d. 1:11) holds that the rationale of rava that אי עביד לא מהני is that in order to avoid the violation the torah prevents the action from being chal. Meaning, only when there is a violation that must be avoided, does the torah prevent the "chalos" of the issur. Basically, it is a tool that the torah creates to prevent a situation that it doesn't want. This would really only apply to a situation where there is a l'av for the violation, not just a penalty for doing an action. In short, according to the chavos da'as (and i believe r' akiva eiger says the same) that rava's concept only applies to a case where there is a violation, it is not applicable over here. Therefore, we must say that the requirement to sell an object that still belongs to the original owner is a direct contradiction to the concept of the sale being binding. This paradox forces r' nachman to say that you are chayev for the action of trying to sell, even though it isn't binding. Based on this, our gemara can work out both according to abaya and rava in temura because it has not connection at all.

Baba Kama 67a - Mitzvah haba'ah b'aveira

There is a major machlokes that tosafos quotes between rabbeinu tam and the r"i regarding the concept of מצוה הבאה בעבירה. Tosafos introduces this by asking a question on u'lah who learns from a pasuk that a korban that is gazul is pasul, from which u'lah derives that yi'ush isn't ko'neh, yet elsewhere u'lah holds that yi'ush is koneh. Rabbeinu Tam holds that yi'ush is ko'neh, but it will not be fit for hakrava in the beis hamikdash due to the problem of מצוה הבאה בעבירה. The R"I disagrees and maintains that if yi'ush qualifies as a kinyan in and of itself, there is no problem of מצוה הבאה בעבירה, because the problem of מצוה הבאה בעבירה only applies when the kinyan is connected to the mitzvah, but if one acquired the object prior to the performance of the mitzvah, it is not a problem of מצוה הבאה בעבירה.

The R"I proves his point that if the acquisition would proceed the mitzvah there would not be a problem of מצוה הבאה בעבירה from the gemara in succah 30a that suggests that a shinuy ma'aseh or shinuy ha'shem to acquire the hadas would circumvent the problem of מצוה הבאה בעבירה. How would Rabbeinu Tam deal with this, since according to him there should be a problem of מצוה הבאה בעבירה even if he acquires it prior to the fulfillment of the mitzvah? The steipler (succah 21) suggests that a shinuy is not merely a kinyan, but rather it is viewed as an entirely new object - פנים חדשות באו לכאן. Therefore, if one was to be ko'neh only through yi'ush (if yi'ush alone worked), that would be nothing more than a kinyan where rabbeinu tam will maintain that there is a problem of מצוה הבאה בעבירה. But when he is koneh in conjunction with a shinuy, it is viewed as an entirely new object and therefore not considered a מצוה הבאה בעבירה. Based on this approach, the halacha in shulchan aruch (649:1) that if one stole a lulav and made a shinuy in it, he can be yotzei his mitzvah, would be even according to rabbeinu tam.

Baba Kama 66b - Rav Yosef Becoming Rosh Yeshiva: Shinuy HaShem

I had a cute thought b'derech d'rush [but i am not sure how true it really is]:

The gemara says that for 22 years Rabba (who held that yi'ush is koneh) asked Rav Yosef (who held yi'ush isn't ko'neh) a question from the mishnah in keilim. Finally when Rav Yosef was promoted to the Rosh Yeshiva he was able to answer the question. His answer was that the hides that were transformed into a table to eat on, was acquired by the ganve/gazlan, not through yi'ush alone, but rather a combination of yi'ush and shinuy hashem [change in status]. It seems a bit strange that only after Rav Yosef was promoted to rosh yeshiva was he able to answer this question.

The Ya'avetz explains that one who is zocheh from shamayim to be promoted to greatness will have hidden depths of torah revealed to him because he studied li'shma.

It seems that there is a definite connection between Rav Yosef being promoted to rosh yeshiva, and the answer that he came up with. Prior to becoming rosh yeshiva there was less expected of him. He had less responsibility to answer the questions that were asked of him, and less siyata d'shmaya in coming up with an answer. By becoming rosh yeshiva which was nothing more than a shinuy Ha'Shem, it was as if he became a different person with completely new responsibilities. When he realized this, he was zocheh to realize that a shinuy ha'shem, although nothing more than a change in title, can have a profound impact. He understood that a shinuy ha'shem qualifies as a shinuy, and in conjunction with yi'ush will work to acquire the object.

Baba Kama 66a - Yi'ush

Rabba proves that the concept of shinuy being ko'neh for a ganev allowing him to keep the item and return only the value is d'oraysa, but he has a safeik about yi'ush whether it is ko'neh m'doraysa or only d'rabonon. The basis for his question is that we don't find the concept of yi'ush in the torah in the context of theft, only in the context of aveida. Rashi explains that in regard to an aveida, a lost object, the gemara in baba metzia 22b learns out from a pasuk that if it is "lost from everyone", which leads to the yi'ush of the owner, there is no mitzvah to return it. The question of the gemara is whether we learn geneiva from aveida. Now, there seems to be 2 distinctions between the yi'ush by aveida and the yi'ush by geneiva: 1. Yi'ush by aveida is before the finder picks it up, whereas yi'ush by geneiva is after the thief already has it in his hand. 2. Yi'suh by aveida allows the finder to keep it without having to return anything, but yi'ush by geneiva would only allow the thief to keep the object but he would still have to return the value.

On the side of the question that yi'ush is NOT d'oraysa by geneiva, the rationale is that it comes to his hand b'issur, meaning that the thief has it prior to yi'ush which doesn't work even by aveida - so what is the rationale that we do learn yi'ush by geneiva from aveida?

Rashi says that if yi'ush works by aveida prior to the finder picking it up to allow the finder to keep it entirely, it should work by geneiva even though it is already in the hands of the thief at least to allow him to only return the value and not the object itself. Tosafos concurs with this, and explains that yi'ush would in fact work by aveida even after the finder picks it up to allow him to keep the object itself and only return it's value, just as we are suggesting by geneiva. From Rashi and Tosafos it seems that the gemara takes for granted that yi'ush works by aveida even after he picks it up to allow him to keep the object and only return money, the only question is whether we apply this to geneiva as well since it "came to his hand b'issur", meaning that he stole it rather than just found it. But the Rashba seems to understand that the fundamental safeik of the gemara is whether by aveida itself, the yi'ush helps after it has already come into his hands to allow him to keep the object and only return the value. The Ketzos HaChoshen (361:2) explains that the safeik of the gemara is based on the understanding why yi'ush doesn't work by aveida after the finder already picks it up. Is it because the finder becomes a shomer on it by picking it up, which would not apply by geneiva and therefore work even after he already has it in his hand, or is it because anytime the object comes to his hand "b'issur" - meaning before yi'ush, he has no ability to acquire it through yi'ush both by aveida and by geneiva.

What is the rationale behind the idea of rashi and tosafos that yi'ush works before it comes into the persons hands to allow him to keep it without returning anything, yet yi'ush after it comes into his hands only works for the object but not for the value (unlike hefker as tosafos points out which would work completely even if the object came into his hand b'issur)? When one picks up an aveida or steals an object prior to yi'ush, that act itself is an act of stealing since the object still has an owner who expects to get it back. The act of picking it up is mechayev the person to pay back the value of the object. Therefore, Hefker which is a form of relinquishing ownership would relinquish all claims that the owner has on the finder or thief  and allow him to keep the object without returning anything, but yi'ush which is only a realization that he will not be getting it back will not exempt the finder or thief from his obligations of reimbursement that he accepted upon picking it up, just allows the finder to not return the actual object. However, if yi'ush occurs before picking up the object, since the object doesn't have an "owner" associated with it, there are no obligations at all on the finder by picking up the object so he doesn't have to return anything. 

Baba Kama 65a - Now it gets hard....

Rav says that the keren is evaluated based on the value at the time of geneiva, but the k'nas is evaluated based on the time of the ruling of beis din. The gemara explains that in a situation where the object either appreciates in value or depreciates in value to do the investment or mistreatment of the ganev, all would agree that the ganev reimburses based on the value at the time he stole it because the owner should not be entitled to appreciation due to the ganev's investment, nor should he be penalized by depreciation due to the ganev's destruction.

The gemara explains that Rav's statment applies only to a case of a price drop. Being that we are speaking about a case where he physically destroys the animal (such as shechita for which he pays 4 or 5), had the price increased from the time of the geneiva, he should pay even the keren based on the value at the time he slaughtered the animal. Rav's distinction is limited to a case where the price drops between the geneiva and ha'amada b'din. When it was originally worth more and is now worth less due to a price drop, the keren is evaluated based on the time of the damage but the k'nas is evaluted based on ha'amada b'din. Even this is later qualified by the gemara 66a - Rashi learns that when he pays back the same type of item that he stole i.e. sheep, he pays keren and k'nas based on the time that he stole, but when he pays cash that is where rav said that the k'nas is paid based on ha'amada b'din. R"I (in tosafos) learns that any improvement or deterioration of the animal whether or not it was caused by him is paid based on the price at the time of the sale both the keren and the k'nas. But for any change in price the k'nas is evaluated based on the market value at the ha'amada b'din [but the keren is still evaluated based on the time of geneiva].

The p'nei yehoshua explains that the concept of k'nas being paid based on the price of ha'amda b'din is very logical and should be assumed, since the k'nas is only realized at the time that the beis din rules on it. Since until that point the ganev had the ablity to exempt himself by admitting, it makes sense to say that he pays based on the ha'amada b'din price. However, Tosafos (d.h. gufa) holds that the chiddush of rav that we need a special pasuk to teach, אחייה לקרן כעין שגנב, is not for the keren, but rather for the implication that k'nas is paid based on ha'amada b'din. The question is, given the logic of the pnei yehoshua, this should also be obvious and not require a special pasuk? Tosafos seems to go lishatasam (d.h. alma) that the k'nas should logically follow the keren, so that even if the k'nas should logically be evaluated based on ha'amada b'din, it should follow the keren to be evaluated based on the time of geneiva. We therefore require a gezeiras hakasuv that ONLY keren pays based on the value at the time of geneiva, but k'nas pays based on the value at the time of ha'amada b'din (which is a logical distinction, although without a pasuk we would have tied the k'nas to the keren).

Rashi 65b d.h. d'kfeila, seems to argue on Tosafos and holds that according to rav we do require a pasuk to teach the chiddush of keren being paid based on the value at the time of the geneiva. Rashi implies that both the aspect of keren being evaluated based on the time of geneiva, and the aspect of k'nas being evaluated based on the value at the time of ha'amada b'din are part of the chiddush of Rav.

Baba Kama 65a - Stealing with your chatzer

The gemara says that we need the pasuk of "אם המצא" to teach that one need not steal with his hands to be chayev keifel, even if he steals with his chatzer he would also be chayev keifel. The Ketzos HaChoshen (348:2) quotes rashi in Baba Metziah 10b that the case of stealing with one's chatzer is that the animal enters his chatzer and he locks the door on it. Why does rashi not say the simplest case, where the animal enters his chatzer and he has machshava to acquire the animal through a kinyan chatzer. The Ketzos points out that Rashi seems to hold that a thought alone does not qualify as "stealing", therefore he must do an action of closing the door on the animal. Although for acquiring a lost object with a chatzeir, all that it takes is machshava alone, but gezeila cannot be done with machshava, it requires an action. Tosafos also seems to hold like rashi that machshava alone is insufficient. Tosafos (d.h. ein) says that the case is where he hits the animal with a stick forcing it to leave the chatzeir of the ba'al habayis and enter the chatzeir of the ganev. However, Tosafos doesn't simply say like rashi that the animal enters the chatzeir of the ganev on his own and all the ganev does is close the door on it. Tosafos implies that it is necessary to do an act of forcing the animal out of reshus chaveiro and into the reshus of the ganev, such as hitting it with a stick. Tosafos seems to understand that if the animal would enter the chatzeir of the ganev on his own, he would not be considered a ganev by simply locking the gate with the animal inside with the intent of stealing it. Based on this, Tosafos cannot explain that the chiddush of chatzeir is simply that one need not do an action with his hands to be considered a ganev, because Tosafos holds that even stealing with one's chatzeir requires an action b'yadayim. Therefore Tosafos is compelled to say that the chiddush of chatzeir is that it can acquire even when the acquisition itself is an issur such as this case where he is stealing.