תדע שסתם גניבה יאוש בעלים הוא
Know that an ordinary case of theft is assumed to result in the owner’s despair of recovering the stolen item. In other words, in the absence of evidence to the contrary, one may assume that the victim of theft has despaired of recovering his item.
שהרי אמרה תורה טבח ומכר משלם תשלומי ארבעה וחמשה ודלמא לא אייאש אלא לאו משום דאמרי' סתם גניבה יאוש בעלים היא
The reason is that the Torah stated that if a thief slaughtered or sold the animal he had stolen, he pays the fourfold or fivefold payment. But why is this so? Perhaps the owner did not yet despair at the time the thief sold the animal, in which case the sale is invalid, and there should be no fourfold or fivefold payment. Rather, is it not because we say that an ordinary case of theft is assumed to result in the owner’s despair of recovering the stolen item? This concludes the statement of Rabbi Elazar, which clearly indicates that there is no fourfold or fivefold payment if the animal is sold before the owner’s despair.
ודלמא אף על גב דלא אייאש
The Gemara asks a question with regard to Rabbi Elazar’s assumption: But perhaps the Torah obligates the thief to pay the fourfold or fivefold payment even if the owner has not yet despaired at the time of the sale, despite the fact that the sale is invalid, as Rav Naḥman stated.
אמרי לא סלקא דעתך דומיא דטביחה מה טביחה דאהנו מעשיו אף מכירה דאהנו מעשיו ואי לפני יאוש מאי אהנו
In response to this question the Sages say: This cannot enter your mind, as Rabbi Elazar maintains that the juxtaposition of slaughtering and selling in the verse that states: “And slaughter it or sell it,” teaches that the thief’s sale of the animal is similar to his slaughter of it. Just as slaughter is a matter in which his action was effective, so too, the case of selling the animal is one in which his action was effective, i.e., the sale is valid. And if the sale occurred before the owner’s despair, in what sense were his actions effective?
ודלמא דשמעיניה דאייאש אמרי לא סלקא דעתך דומיא דטביחה מה טביחה לאלתר אף מכירה לאלתר
The Gemara asks another question with regard to Rabbi Elazar’s reasoning: But perhaps the Torah requires the fourfold or fivefold payment only in the specific case where the animal is sold after we heard that the owner despaired of its recovery. The Sages respond to this and say: This cannot enter your mind, since, as explained above, the thief’s sale of the animal must be similar to his slaughter of it. Therefore, just as the thief is liable to pay the fourfold or fivefold payment for slaughtering the animal even if he does so immediately, so too, the halakha that he pays the fourfold or fivefold payment for selling it applies even if he does so immediately, before it is known that the owner has despaired of recovering the animal.
א"ל ר' יוחנן גניבה בנפש תוכיח שאין יאוש בעלים וחייב מכלל דסבר רבי יוחנן לפני יאוש חייב
Rabbi Yoḥanan said to Rabbi Elazar: The case of stealing a human being, i.e., kidnapping, proves that your reasoning is incorrect. The Torah states: “And he who steals a man and sells him or if he is found in his hand, he shall be put to death” (Exodus 21:16). In this case there is no owner’s despair, as no one ever despairs of his own freedom. Consequently, the thief’s sale of the person he kidnapped is invalid, and yet the Torah states that he is liable to receive the death penalty for selling him. One can learn by inference from this question that Rabbi Yoḥanan holds that if the thief sells the stolen animal before the owner’s despair he is liable to pay the fourfold or fivefold payment.
לאחר יאוש מאי ר' יוחנן אמר חייב וריש לקיש אמר פטור
§ The Gemara asks: If the thief sells the animal after the owner’s despair, what is the halakha? Rabbi Yoḥanan says: He is liable. And Reish Lakish says: He is exempt.
רבי יוחנן אמר חייב חיוביה בין לפני יאוש בין לאחר יאוש ריש לקיש אמר פטור חיוביה לפני יאוש הוא אבל לאחר יאוש קנה ושלו הוא טובח ושלו הוא מוכר
The Gemara elaborates: Rabbi Yoḥanan says: He is liable, as the thief’s liability applies whether the animal is sold before the owner’s despair or after his despair. Reish Lakish says: He is exempt, as the thief’s liability is in effect only if he sells the animal before the owner’s despair, but after the owner’s despair there is no liability, because the thief has acquired the animal by virtue of the owner’s despair, and therefore it is his own animal that he slaughters or his own animal that he sells.
איתיביה ר' יוחנן לריש לקיש גנב והקדיש ואחר כך טבח משלם תשלומי כפל ואינו משלם תשלומי ארבעה וחמשה
Rabbi Yoḥanan raised an objection to the opinion of Reish Lakish from a baraita: If one stole an animal and consecrated it, and subsequently slaughtered it, he pays the double payment to the owner of the animal, but he does not pay the fourfold or fivefold payment. The Torah states: “The one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). The word “neighbor” excludes the case of one who steals a consecrated item from the Temple treasury. Since there is no double payment to the Temple treasury there can be no fourfold or fivefold payment either, as the fourfold or fivefold payment is considered an addition to, not a replacement of, of the double payment (see 75a). Therefore, a thief does not pay the fourfold or fivefold payment to the Temple treasury for slaughtering one of its animals.
אימת אלימא לפני יאוש מי קדוש (ויקרא כז, יד) איש כי יקדיש את ביתו קדש אמר רחמנא מה ביתו שלו אף כל שלו
The Gemara analyzes the baraita: When did the events described in the baraita occur? If we say they happened before the owner’s despair, is the animal consecrated at all? A thief cannot consecrate a stolen item before the owner despairs of recovering it, as the Merciful One states in the Torah: “And when a man shall sanctify his house to be holy unto the Lord” (Leviticus 27:14), from which it is derived: Just as one’s house belongs to him, so too, anything that one consecrates must belong to him, and therefore a thief cannot consecrate a stolen item.
אלא פשיטא לאחר יאוש וטעמא דהקדיש הוא דאינו משלם תשלומי ארבעה וחמשה דכי קא טבח דהקדש קא טבח אבל לא הקדיש טבח משל תשלומי ארבעה וחמשה ואי סלקא דעתך יאוש קונה אמאי משלם שלו הוא טובח שלו הוא מוכר
Rather, it is obvious that the baraita is dealing with events that occurred after the owner’s despair. And yet the only reason that he does not pay the fourfold or fivefold payment is that he consecrated the animal, on the grounds that when he slaughtered it he slaughtered consecrated property. But if he did not consecrate the animal before he slaughtered it he would pay the fourfold or fivefold payment. And if it enters your mind that the owner’s despair serves to acquire the animal for the thief, why would he have to pay? At that point it is his own animal that he slaughters or his own animal that he sells.
א"ל הכא במאי עסקינן כגון שהקדישוהו בעלים ביד גנב
Reish Lakish said to Rabbi Yoḥanan: With what are we dealing here? The baraita is referring to a case that occurred before the owner’s despair, and it is not the thief who consecrated the animal, as he cannot do so. Rather, we are dealing with a case where the owner consecrated the animal while it was in the thief’s possession.
ומי קדוש והאמר ר' יוחנן גזל ולא נתייאשו הבעלים שניהן אינן יכולין להקדיש זה לפי שאינו שלו וזה לפי שאינו ברשותו אמרי הוא דאמר כצנועין
The Gemara asks: And is the animal consecrated in this situation? But didn’t Rabbi Yoḥanan say: If one stole an item and the owner has not yet despaired of recovering it, neither of them is able to consecrate it. This one, the thief, cannot consecrate the item, because it does not belong to him; and that one, the owner, cannot consecrate it, because it is not in his possession. The Sages state an answer on behalf of Reish Lakish: He stated his opinion in accordance with the opinion of the pious ones [tzenuin], who acted not in accordance with the opinion of Rabbi Yoḥanan.
דתנן הצנועין מניחין את המעות ואומרים כל הנלקט מזה יהא מחולל על המעות האלו
As we learned in a mishna (Ma’aser Sheni 5:1): The pious ones would set aside some coins and say: Anything that was picked from this vine by passersby shall be desacralized onto these coins. This mishna is referring to a grapevine in its fourth year after planting. The grapes on this vine must be either eaten in Jerusalem or redeemed with money that is then taken to Jerusalem and spent on food. The fruit may not be eaten outside Jerusalem without being redeemed. The pious ones were concerned that a passerby might help himself to some of their grapes, thereby transgressing a prohibition. Therefore, they would redeem any of their grapes that might be picked and eaten by passersby. Evidently, these pious ones were of the opinion that the owner of a stolen item can redeem it despite the fact that it is no longer in his possession. Likewise, they would say, contrary to the opinion of Rabbi Yoḥanan, that an owner of a stolen item can consecrate it even though it is no longer in his possession.
והרי חזרה קרן לבעלים
The Gemara asks a question with regard to Reish Lakish’s explanation of the baraita, that it is discussing a case where the owner of the animal consecrated it after it was stolen: But the principal amount, i.e., the stolen animal itself, has returned to the owner. By consecrating the animal, the owner has exercised his ownership of it, and it is therefore considered to have been returned to him at that point. The thief should therefore not be required to pay the double payment, as a thief is liable for double payment only when the stolen item is in his possession at the time of the trial, as it states: “The theft shall be found in his hand” (Exodus 22:3).
The Gemara answers: The baraita is discussing a case where the thief stood in judgment and was found guilty of theft before the owner consecrated the animal. Consequently, the liability to pay the double payment preceded the owner’s consecration of his property.
היכי דמי אי דאמרי צא תן לו מאי איריא הקדיש אפילו לא הקדיש נמי לא ליחייביה
The Gemara raises a difficulty with regard to this answer: What are the circumstances of this trial of the thief? If it refers to a situation where the members of the court say to him: Go out and give the animal back to its owner, why does the baraita say that the thief is exempt from the fourfold or fivefold payment specifically because the owner consecrated the animal before it was slaughtered? Even if he did not consecrate it the thief should also not be liable to pay the fourfold or fivefold payment.
דאמר רבא צא תן לו טבח ומכר פטור מ"ט
The Gemara elaborates. As Rava says: If the court tells a thief: Go out and give the stolen animal back to the owner and instead the thief slaughtered or sold it, he is exempt from the fourfold or fivefold payment. What is the reason for this?
כיון דפסקוה למילתיה וטבח ומכר הוה ליה גזלן וגזלן אינו משלם תשלומי ארבעה וחמשה
Since the court has issued a definitive ruling in this matter, and he later slaughtered or sold the animal, he is considered a robber, and a robber does not pay the fourfold or fivefold payment. The difference between a thief, concerning whom the Torah prescribes the double payment and the fourfold or fivefold payment, and a robber, who does not incur these obligations, is that a thief acts stealthily, whereas a robber brazenly uses force to take an item from its owner. Once a court has obligated a thief to make restitution and he has defied this sentence, he is considered a robber, and therefore the fourfold or fivefold payment and its atonement are not applicable to him.