- Exceptions to שינוי השם: שינוי החוזר לברייתו, and שאיבה דרבנן
On the previous Daf, Rav Yosef taught that a thief acquires a stolen item through שינוי השם - a change in name. This is challenged from a Mishnah teaching that one who steals a crossbeam and builds it into a ceiling (thereby changing its name from “crossbeam” to “ceiling”) does not need to return the crossbeam because of תקנת השבים, implying that otherwise, the thief would not acquire the beam, although its name changed!? Rav Yosef answers that it is still called a crossbeam, even when built into a ceiling. Rebbe Zeira answers that a שינוי החוזר לברייתו – a change that reverts to its original state, such as a beam which can be dismantled, is not considered a change regarding שינוי השם. Rav Yosef is then challenged from a Mishnah teaching that if a block of wood was first fixed into the ground and then hollowed into a pipe (thereby changing its name), the water flowing through does not invalidate a mikveh (as “drawn water,” i.e., transported through a vessel), because it is considered part of the ground. But if a change in name is significant, it should invalidate the mikveh!? The Gemara answers: שאני שאיבה דמדרבנן היא – the law disqualifying water through “drawing” is different, because it is only Rabbinical, and allows for leniencies.
- Sources that יאוש is not קונה regarding korbanos
Ulla said: מניין ליאוש שאינו קונה – From where do we know that יאוש does not cause the thief to acquire the stolen item? The passuk says regarding korbanos: והבאתם גזול את הפסח ואת החולה – “And you bring what is stolen, the lame and the sick,” implying a comparison between a stolen and a lame animal: מה פסח דלית ליה תקנתא כלל – just as the lame one has no remedy, because its blemish renders it permanently unfit, אף גזול דלית ליה תקנתא – so too a stolen [animal] has no remedy, and is invalid as a korban, whether before or after יאוש. This proves the thief does not acquire the animal for use as a korban through יאוש. Rava quotes another source. The passuk says: "קרבנו" – his korban, which teaches that only “his” korban is valid, ולא הגזול – and not a stolen one. Since before יאוש, this is obvious (because he could not even be makdish the animal), the case must be after יאוש, yet the korban is still invalid, proving he does not acquire it for use as a korban. The Gemara wonders that Rava himself deflected this proof on Daf 66b, saying that the case can be: דגזל קרבן דחבריה – where he stole his fellow’s korban!? It answers either that Rava retracted, or that one of these statements was actually made by Rav Pappa.
- גונב מן הגנב after יאוש
The Mishnah on Daf 62b taught: אין הגונב אחר הגנב משלם תשלומי כפל – One who steals from a thief does not pay כפל, because he did not steal it from the owner’s possession. Rav says this is only before יאוש, but after יאוש, קנאו גנב ראשון – the first thief has acquired it, and the second thief would pay כפל, since he stole it from its new owner. Rav Sheishess challenged him from a Baraisa, in which Rebbe Akiva explained the reason one pays ד' וה' for selling or shechting a stolen animal: מפני שנשתרש בחטא – because he became “rooted” in sin. Rashi explains that by selling or shechting the animal he has acquired the animal which will now never be returned to its owner. The Gemara assumes this means the sin has become irreversible, and therefore must be where he sold it after יאוש (so the יאוש and change to the buyer’s domain jointly effect the acquisition). If the thief would acquire it with יאוש alone, he could not be liable for ד' וה', since he is selling or shechting that which is already his!? The Gemara answers that the Baraisa’s case may be before יאוש and can be interpreted: מפני ששנה בחטא – because he repeated his sin, although no acquisition was effected.
