Clarification: Min ha'S'tam, if one builds a (stolen) Marish (beam) into a mansion, the owner gives up hope on it.

Question #1: It implies that the Gemara is asking exclusively on Rav Yosef; on the contrary, it is even more difficult according to Rabah - according to whom Yi'ush alone acquires?

Question #2: And the Gemaras answers that a Marish retains its name too, poses a Kashya on Rabah, since the Gemara here implies that Yi'ush alone is not Koneh.

Answer #1: It therefore seems that the Gemara is speaking where there is no Yi'ush, and what the Gemara is asking on Rav Yosef is - it will be fine if Shinuy ha'Shem is not effective at all ...

Answer #1 (cont.): But if a small Shinuy ha'Shem is effective together with Yi'ush, then a big Shinuy ha'Shem such as that of Marish ought to acquire by itself?

Support: An this is also implied earlier (on Daf 65b) that a major Shinuy Hash-m will acquire by itself, when the Gemara asks in conncection with a lamb that became a ram 'Why does he not acquire with Shinuy ha'Shem?' since it is a major Shinuy ha'Shem.

Answer #2: Alternatively, one can answer that, according to Rav Yosef, Shinuy ha'Shem acquires by itself without Yi'ush. Consequently, the Marish ought to acquire even without Yi'ush ...

Answer #2 (cont.): And the reason that one Yi'ush is required in the case of the skins is not in order to create a Kinyan, seeing as the Kinyan takes effect due to Shinuy ha'Shem on its own, but to enable the specifying thought (of the Ganav) to turn it into a robe ...

Answer #2 (cont.): Because if not for the Yi'ush, there would be no Shinuy ha'Shem.

Answer #2 Extension: And the same will apply to Shinuy R'shus; If there is no Yi'ush, there will be no Shinuy R'shus.

Answer #2 (concl.): By Marish, on the other hand, where the Shinuy ha'Shem is effective even without Yi'ush, it ought to be effective on its own.

Conclusion Extension: And likewise above (Ibid.) in connection with a lamb that became a ram, when the Gemara asked why he does not acquire with Shinuy ha'Shem?

Explanation #1: It speaks where it (the pipe) has a rim on all four sides, because if it was breached even on one side, it would not render the Mikvah Pasul ...

Source: As is evident in Maseches Mikva'os (Perek 4, Mishnah 4) - that only a board with a rim invalidates.

Explanation #2: Whereas the Ri from Simpounes establishes it even if it is breached on two sides, like pipes tend to be, only it speaks where he formed a cavity in it to catch the pebbles, so that they should not hold back the rain-water.

Precedent: Like the case in the fourth Perek of MIkva'os (Mishnah 3) 'Someone who carves out a cavity in a pipe to catch the pebbles - if it is made of wood, then the Shi'ur is a Kol she'Hu (however small it is); whereas if it is made of earthenware, it must hold a Revi'is.

Question: In that case, why does the Gemara asks that 'Initially it was a lump of wood and now it is a pipe?', implying that even if he fixed it first it will invalidate the Mikvah, since its name changed due to the Chakikah (the carving out) ...

Question (cont.): But is it not a fact that its name is changed (not on account of the Chakikah, but) by forming the cavity, which is what causes the Mikvah to become Pasul?

Answer: Since its name is changed via the Chakikah, it is considered detached, and the cavity that he then formed is considered as if he formed it when it was detached.

Reference: Tosfos explains this in Perek ha'Mocher es ha'Bayis (Bava Basra, Daf 66a, DH 'mi'Chelal').

Clarification: The Gemara, in ha'Gozel Basra (later, Daf 114a) asks that 'Gazlan' poses a Kashya on the Rabanan, and 'Ganav' on Rebbi Shimon. And it answers satisfactorily.

Implied Question: Even though it is a Shinuy that is retractable via asking an expert ...

Source: As the Gemara states in 'ha'Ishah Rabah (Yevamos, Daf 88a), and at the end of 'ha'Noder min ha'Yerek' (Nedarim, Daf 59a)?

Answer: Nevertheless, it is not considered a Shinuy ha'Chozer li'Beriyoso', because it is not common.

Clarification: By Kodshim for which one is not responsible, the Gemara would not have found it necessary to give this reason ...

Clarification (cont.): Only the Gemara wants to establish the case even by a Chatas and an Asham.

Implied Question: Because even though initially it was Reuven's ox and now it is still Reuven's ox?

Answer: Nevertheless, there is here a Shinuy ha'Shem.

Inference: It implies here that Ula holds that 'Yi'ush is not Koneh'.

Precedent: Similarly, in 'ha'Nizakin' (Gitin, Daf 55a, See Tosfos there DH 'Mai') where he says that, 'Min ha'Torah, whether he knows about it or not, it (a stolen Chatas) does not atone. Why is that? Because Yi'ush alone is not Koneh'.

Question: Rabeinu Tam queries this from the Gemara in ha'Gozel Basra (later, Daf 114a) where, in connection with the Machlokes Rebbi Shimon and the Rabanan concerning 'Ganav' and 'Gazlan', Ula establishes the Machlokes by S'tam, but where the owner knows about it, they both agree that Yi'ush is Koneh?

Answer: Explanation #1: Rabeinu Tam answers that generally, Ula holds that 'Yi'ush is Koneh', but not in connection with Korban, since it is a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Support #1: And he brings a proof from the Gemara in 'ha'Nizakin' (Gitin, Daf 55b & 56a) which queries Ula from the case of someone who, after stealing an animal and declaring it Hekdesh, Shechts or sells it, who must then pay Kefel but not Arba'ah va'Chamishah ...

Support #1 (cont.): And the Beraisa adds that 'The same case, ba'Chutz, is Chayav Kareis', on which the Gemara asks that 'If Yi'ush is not Koneh, why is he Chayav Kareis?'

Support #1 (cont.): Now, even without the Beraisa, the Gemara ought to have asked from the Mishnah itself - that if Yi'ush is not Koneh, then he does not have the power to declare it Hekdesh, in which case, why is he Patur from Arba'ah va'Chamishah, seeing as what he Shechted was not Hekdesh?

Support #1 (cont.):It is therefore clear that Ula concedes that generally, 'Yi'ush is Koneh', except for when it comes to bringing it as a Korban.

Support #1 (concl.): That is why the Gemara queries him from the ruling of the Beraisa, that ba'Chutz he is Chayav Kareis, from which we see that it is fit to be brought to the entrance of the Ohel Mo'ed?

Support #2: Rabeinu Tam brings another proof from the beginning of 'Lulav ha'Gazul' (Succah, Daf 30a & 30b), where the Gemara declares Pasul a stolen Lulav even on the second day of Yom-Tov; Rebbi Yochanan there attributes it to 'Mitzvah ha'Ba'ah ba'Aveirah', as the Torah writes "And you bring there what is stolen and what is lame", 'Stolen, just like lame', says the Gemara, 'irrespective of whether it is before Yi'ush or after Yi'ush'.

Support #2 (cont.): 'Before Yi'ush' is fine, since the animal is not his; but why is it Pasul 'after Yi'ush', seeing as he acquired it with Yi'ush? It must be because of 'Mitzvah ha'Ba'ah ba'Aveirah'.

Support #2 (concl.): This implies that he (Rebbi Yochanan) holds that generally, Yi'ush is Koneh, unless it is in connection with a Mitzvah that comes via an Aveirah.

Question #1: The Ri queries Rabeinu Tam however, in that, if that is so (that Yi'ush is Koneh according to Ula) why did Abaye query Rabah above (on Daf 66b) from "Korbano", 've'Lo ha'Gazul' - when perhaps by Korban, Rabah concedes that Yi'ush is not Koneh, like Ula?

Refuted Answer: And if one suggests that Abaye does not differentiate, like the opinion in Succah (Ibid.) that holds 'Since one is Yotzei with a borrowed Lulav one is also Yotzei with a stolen one', because he does not of 'Mitzvah ha'Ba'ah ba'Aveirah' ...

Refutation: He certainly does hold of it, because otherwise, even if Yi'ush would not be Koneh, he could ask Rabah why it is forbidden to bring the animal, seeing Hekdesh takes effect on it, as he explained, it is Yi'ush plus Shinuy ha'Shem?

Refutation (cont.): It must therefore be because of 'Mitzvah ha'Ba'ah ba'Aveirah'?

Question #2: He also queries him from the Gemara in Gitin (Daf 55b), from Rava, who asks whether, when the Rabanan place the animal in the R'shus of the Gazlan, it is from the time that he stole it or from the time that he declared it Hekdesh. The ramifications of the She'eilah are regarding the shearings and the babies that appear in between the two occasions.

Question #2 cont.): And the She'eilah is according to Ula, as is evident in the Sugya.

Question #2 (concl.): Now if Yi'ush would generally be Koneh, it is obvious that the shearings and the babies would be his from the time of Yi'ush?

Explanation #2: Therefore the Ri explains that Ula holds that Yi'ush is not Koneh under any circumstances. ...

Explanation #2 (cont.): And as for the case in 'ha'Gozel Basra (later, Daf 114a), that is because it is Yi'ush plus Shinuy ha'Shem - since initially it was a skin, and now it is a robe.

Implied Question: Even though by Korban too, it is Yi'ush plus Shinuy ha'Shem, as the Gemara said earlier 'Initially it was Chulin and now it is Hekdesh'?

Answer: Nevertheless, since he only acquired it because he declared it Hekdesh, and not before, the Torah disqualified it from being brought as a Korban, on account of 'Mitzvah ha'Ba'ah ba'Aveirah' (See Hagahos ve'Tziyunim) ...

Answer (cont.): But if he would have acquired it before being Makdish it, it would not be considered 'a Mitzvah ha'Ba'ah ba'Aveirah' ...

Proof #1: As is evident in Perek Lulav ha'Gazul (Succah, Daf 30a & 30b), when Rava Huna said to those peddlers 'When you purchase Hadasim from the Nochrim, let them cut them (off the tree)' ...

Proof #1 (cont.): On which the Gemara asks 'Why do they not acquire them with Shinuy ha'Shem?' - implying that if they would have acquired them, it would no longer be a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Refuted Counter-Proof: And it would be a Dochek to answer that the Gemara holds like Rebbi Yitzchak bar Nachmeni there, who does not hold of 'Mitzvah ha'Ba'ah ba'Aveirah'.

Proof #2: Furthermore, the Gemara says there (on Daf 31a) that 'The Rabanan applied the Takanah of 'Takanas ha'Shavim' to the beam of a Succah' ...

Proof #2 (cont.): And a Succah is not subject to the Din of 'mi'she'Lachem', in which case it would only be Pasul because of 'Mitzvah ha'Ba'ah ba'Aveirah', and if where he acquires it only via a Takanah mi'de'Rabanan, it is not considered a 'Mitzvah ha'Ba'ah ba'Aveirah', how much more so where he acquires it with a proper Kinyan.

Implied Question: And when the Gemara at the beginning of 'ha'Gozel Kama' (later, Daf 94a), states that 'If someone steals a Sa'ah of wheat, grinds it, kneads it, bakes it and separated Chalah from it, how can he recite a B'rachah over it, since that is not a blessing but a provocation?

Implied Question (cont.): And it counters there that he may well hold that generally Shinuy is Koneh, and the reason there is because it is a Mitzvah ha'Ba'ah ba'Aveirah - even though he acquired it beforehand ...

Answer #1: When it comes to reciting a B'rachah, which entails mentioning the Name of Hash-m, it is befitting to be more strict.

Answer #2: Alternatively, the Gemara's answer is merely a Dichuy (pushing off the question, even though the answer is not a hundred per cent correct.)

Explanation #2 (cont.): According to this, Abaye was justified when earlier, he asked from "Korbano", ve'Lo ha'Gazul' - because, if Yi'ush is Koneh, why is it Pasul, seeing as, since he acquired it before declaring it Hekdesh, it is not considered a 'Mitzvah ha'Ba'ah ba'Aveirah' ...

Explanation #2 (cont.): Clearly then, Yi'ush alone is only Koneh because he declared it Hekdesh, in which case there is Yi'ush and Shinuy R'shus or Yi'ush and Shinuy ha'Shem, as the Gemara ultimately concludes.

Explanation #2 (concl.): And the reason that it is Pasul is because it is a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Explanation #2: Extension: And in ha'Nizakin too, (Gitin, Daf 55b & 56a) if not for the Beraisa that the Gemara quotes, it would not be able to query Ula from the Mishnah itself ...

Explanation #2: Extension (cont.): Because, even though Yi'ush is not Koneh, Hekdesh will nevertheless take effect, since it is Yi'ush plus Shinuy R'shus. In fact, the opposite is true - that the Mishnah supports Ula ...

Proof: Because if Yi'ush was Koneh, then even if he had not declared it Hekdesh, he would be Patur from Arba'ah va'Chamishah, since it is his own animal that he is Shechting or selling?

Precedent: As Rebbi Yochanan later (on Daf 68b), asks Resh Lakish, who holds that 'Yi'ush is Koneh'.

Question: On the contrary, it is difficult as to why the Gemara does not query Rav Yehudah, who argues there with Ula and holds that 'Yi'ush alone is Koneh' from this Beraisa? (Continued on Amud Beis)

Question: It is difficult as to why the Gemara does not query Rav Yehudah, who argues there with Ula and holds that 'Yi'ush alone is Koneh', from this Beraisa?

Refuted Answer: Nor can one answer like the Gemara answers later (on Daf 68b) according to Resh Lakish - that 'The owner declared it Hekdesh after the Ganav stole it' ...

Refutation: Since, if that is the case, how can the Gemara ask on Ula why he is Chayav Kareis. Why should he not be Chayav Kareis, seeing as it is fit to be brought to the entrance of the Ohel Mo'ed now that the owner declared it Hekdesh?

Answer #1: The Gemara could have retorted 'According to you (Rav Yehudah) it is also a Kashya!'

Answer #2: Alternatively, Rav Yehudah too holds that 'Yi'ush is not Koneh', and the reason that he says that 'the animal atones whether it is known or not' is - because he does not hold of 'Mitzvah ha'Ba'ah ba'Aveirah'.

Answer #2 (cont.): And we do not have the text there 'What is the reason? Because he holds 'Yi'ush alone is not Koneh'.

Implied Question: And in Succah (Daf 30. & 30b) where it says 'But it speaks after Yi'ush; In that case, he acquired it with Yi'ush?' ...

Answer 1: What the Gemara means is that he acquires it with Yi'ush and Shinuy ha'Shem ...

Answer 1 (cont.): And he only mentions Yi'ush because it is on account of the Yi'ush that occurred earlier, that he acquires the animal with Shinuy ha'Shem.

Answer #2: In fact, there are Sefarim which do not have the text 'with Yi'ush', but simply 'He acquired it?'

Proof: The author of that statement there is Rebbi Yochanan, and Rebbi Yochanan holds that 'Yi'ush is not Koneh', since he says later on (Daf 68b) that 'He is Chayav whether it is before Yi'ush or after Yi'ush'.

Proof (cont.): And if he were to hold that Yi'ush is Koneh why is he Chayav after Yi'ush, seeing as what he Shechts or sells is his own.

Proof (concl.): And in ha'Gozel Basra (Daf 115a) Rebbi Yochanan says in the name of Rebbi Yanai that Shinuy R'shus that is followed by Yi'ush is not Koneh.

Question: Rabeinu Tam asks (on the Ri) from the Gemara in 'ha'Gozel Basra' (later. on Daf 114a), which implies that, according to Ula, 'Yi'ush alone is Koneh' ...

Question (cont.): Since it asks from the Mishnah which rules that 'If a tax-collectors takes someone's donkey and gives him another one, ht belongs to him'. on which the Gemara comments 'That is fine according to Ula, according to whom it speaks when it is known (that the owner gave up hope), and it goes according to everybody'.

Question (cont.): And the Gemara there considers 've'Nasnu lo Chamor Acher' Yi'ush only ...

Proof: On account of the Beraisa there 'And if he accepted it, he must return it to its original owner; and the Gemara explains that the Tana holds 'Yi'ush alone is not Koneh'.

Question (concl.): And the reason that it is not considered Shinuy R'shus is because it is given to him against his will.

Answer: The Ri answered that the Beraisa cannot be speaking in the same case as the Beraisa ...

Proof #1: Seeing as the Mishnah rules that it belongs to him whereas the Beraisa says that he must return it to its original owner.

Proof #2: Moreover, if the Beraisa was learned with reference to the Mishnah, one can ask from it on Rabah who says that 'Yi'ush alone is not Koneh'?

Answer (cont.): The Beraisa must therefore speak where the owner is standing there and has not yet given up hope when the tax-collector gives it to the recipient ...

Answer (cont.): And even though he does give up hope after the latter has received it, he does not acquire it

Reason: Because Shinuy R'shus before Yi'ush does not acquire, as is implied later (115a - See Hagahos ve'Tziyunim).

Answer (cont.): And even Yi'ush is not Koneh according to Rabah ...

Reason: Because it came to his hand be'Isur, and he is obligated to return the its value.

Answer (concl.): Whereas the Mishnah, according to Ula, speaks where he is known to have given up hope before the recipient received the animal, in which case, upon receiving it, he acquires it with Yi'ush and Shinuy R'shus.

Implied Question: Even though the Gemara said earlier (on Daf 65b) 'Ganav T'leh ve'Na'aseh Ayil, Na'aseh Shinuy be'Yado, ve'Kan'o' ...

Answer: Nevertheless, in its present state, it cannot be rectified.

Establishing the Author: The correct text is 'Rava', not 'Rabah' ...

Proof: Since th Gemara says that the author of one of the statements is Rav Papa, and although they would have confused Rav Papa with Rava (who was his Rebbe), and when he would sometimes make statements S'tam, they would think that they were the words of Rava ...

Proof (cont.): There was no way however, that they would confuse Rav Papa with Rabah.

Consequence: Therefore the corresponding text earlier (on Daf 66b) is 'Rava said to him (Rav Yosef) "Mishkavo", 've'Lo ha'Gazul'.

Implied Question: Even though Rabah was the disputant of Rav Yosef, and Abaye queried Rabah ...

Answer: We have to say that it was not Rabah himself who replied, but Rava ...

Answer (cont.): Since the Gemara asks here on Rava that he was the one who said earlier that 'He stole his friend's Korban', and the Gemara concludes that one of them was said by Rav Papa.

Proof #1: And so it seems, seeing as in all the Sefarim, the text in the Gemara earlier 'Amar leih Rava'; now if was Rabah who answered him, then it ought to have said simply 'Amar leih', without mentioning Rabah ...

Reason: Seeing as it was Rabah who was being queried ...

Proof #2: And also in 'ha'Nizakin' (Gitin, 55b & 56a) it is implied that Rava holds 'Yi'ush alone is not Koneh'.

Proof #2 (cont.): When he asks whther 'When the Rabanan place the animal in his R'shus, it is from the time of the theft or from the time of the Hekdesh'.

Proof #3: And in the last Perek (of this Masechta, Daf 111b & 112a) Rava says that 'Really the domain of an heir is not equivalent to that of aa purchaser' - there too it is implied that he holds that 'Yi'ush is not Koneh'.

Proof #3 (cont.): And there it is 'Rava' speaking, since h is the disputant of Rami bar Chama.

Implied Question: And when Rava says in Perek Eilu Metzi'os (Bava Metzi'a, Daf 26b) in connection with where 'One picks up a lost object before Yi'ush with the intention of stealing it', that 'one transgresses all of them (the Mitzvos connected with returning a lost article) ...

Implied Question (cont.): And even if one returns it after Yi'ush, one is merely giving him a gift ...

Implied Question (concl.): Even though Yi'ush is not Koneh?

Answer: Nevertheless, since Yi'ush is effective to the extent that one is permitted to sell it or to declare it Hekdesh, he is considered a Gazlan.

Question: Why does the Torah see fit to write "Seh" twice, seeing as by Shabbos the Torah does not insert "Seh"?

Answer: Had the Torah not written "Seh" twice, we would have thought that "Shor" comes to preclude other things from the Din of Shor (exclusively) ...

Answer (cont.): That they do not pay five-fold, only four-fold, like a lamb.

Answer (concl.): Hence the Torah writes "Seh" ( a second time) to preclude them completely (from the Din of a amb as well).

Clarification: And we would understand from a S'vara that "Chamishah Bakar" pertains to "Shor" and "Arba Tzon" to "Seh".

Source: The Gemara (on Daf 69b) Darshens this from "ve'gunav me'Beis ha'Ish", 've'Lo ni'Beis ha'Ganav'.

Statement: This goes well with those who explain that one Pasuk refers to 'Ganav' and the other, to 'To'en Ta'anas Ganav'.

Question: But according to those who establish both Pesukim by b'To'en Ta'anas Ganav, this D'rashah is not feasible?

Answer: One therefore needs to say that according to them, we learn that 'Ganav achar Ganav is Patur' ffrom a different source.

Implied Question: All the current cases from which the Gemara queries Rav it could also have queried Rabah earlier in the Sugya, and all the cases from which the Gemara earlier queries Rabah it could also query Rav here ...

Answer #1: Only it preferred to query Rabah (who is speaking about a Gazlan) from cases of Gazlan, and Rav (who is speaking about a Ganav) from cases of Ganav.

Answer #2: Moreover, the Gemara fixed the questions in th Gemara according to how they were asked in the Beis-ha'Medrash.

Conclusion: And the Gemara could have queried them both from the case of 'Ganav ve'Hikdish, from which Rebbi Yochanan will later query Resh Laskish (on Daf 68b).