On today’s daf TB Baba Kama 68, amoraim continue to debate whether yayush (יֵאוּשׁ), the original owner has despaired of retrieving the stolen object, is an effective method for the thief of acquiring the stolen object. Remember stealing is still wrong. Even if the thief acquires the stolen object as his own, he is still liable to make restitution and for the penalties the Torah imposes.
Whether the
thief acquires the stolen object before or after yayush is a complicated sugiyah.
To understand the positions of the different amoraim, we need to refresh our memory of the applicable verse in
the Torah. “When any party steals an ox or a sheep, and slaughters it or sells
it, that person shall pay five oxen for the ox, and four sheep for the sheep.”
(Deuteronomy 21:37)
Rav and Reish Lakish hold the position that yayush koneh (יֵאוּשׁ קוֹנֶה), the original owner has despaired of retrieving the stolen object, is an effective method for the thief of acquiring the stolen object. Consequently, the above verse describes the scenario where the animal was slaughtered or sold before yayush. If yayush koneh, the stolen property now belongs to the thief and it is his right to sell or slaughter the animal. Therefore, the penalty of four or five does not imply any longer.
Rav
Naḥman and Rav Sheshet both agree that yayush
aino koneh (יֵאוּשׁ אֵינוֹ קוֹנֶה),
the original owner has despaired of retrieving the stolen object, is not an effective
method for the thief of acquiring the stolen object. Nevertheless, they do
disagree when the thief has to pay the penalty of four or five. Rav Naḥman
holds that the thief must pay the penalty of four or five regardless of yayush. For him it is an ethical issue. The
thief has sinned twice, stealing the animal and then selling or slaughtering
stolen goods. Rav Sheshet holds for a thief to be liable for the penalty of
four or five, yayush alone is
insufficient. There also must be a complete sale (a change of domains-שנוי רשות) to effectuate the above penalty.
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