Yiush – Losing Hope in the Face of Theft

Keilim (26:7) | Yisrael Bankier | 15 years ago

Mental designation (machshava) can transform an item requiring no extra labour to become functional, into a kli (26:7)25. This is important since from that point onward it becomes susceptible to tumah. We also learnt that in some circumstance the mental designation of a thief (ganav) or robber (gazlan)26 can be significant (26:8):

…Those [hides] stolen by a ganav become susceptible to tumah through machshava; those stolen by a gazlan do not become susceptible to tumah through machshava. R’ Shimon says, the matter is reversed: those [hides] stolen by a gazlan become susceptible to tumah through machshava; those stolen by a ganav do not become susceptible to tumah through machshava.

We find a debate between the Chachamim and R’ Shimon whether the ganav or gazlan has the ability to change the status of the stolen item with machshava alone. Before the debate can be analysed some background information is required.

The Gemara (Bava Kama 66b) explains that in this context, one must be the owner of the item for machshava to be effective27. Consequently, an important factor is whether the legal ownership of the hide has changed. A critical (but not sole) factor is whether the owner has given up hope of retrieving his property - referred to as yi’ush.28 Consequently the debate appears to be whether in the case of a ganav and gazlan the original owner has given up hope that he will ever retrieve the object.

The commentaries explain the debate as follows. The Chachamim believe it is only in the case of the gazlan, where the robber has been identified, that the owner does not give up hope in retrieving his property. In the case of the ganav, since the owner does not know who stole his property, he gives up hope and the machshava of the thief is effective. R’ Shimon applies the reverse logic. It is in the case of the gazlan, where the owner had already been confronted by the robber and learnt that he is powerless against the strong criminal that he gives up hope. With respect to the ganav however, hope still remains that he may be able to liberate the stolen item.

When faced with any debate in Mishnah or Gemara, one is apprehensive to attribute the debate to a disagreement about a fact of nature. If it were such a matter a survey or other investigation could and should have been performed to resolve the matter. In this case the Chazon Ish explains that here too the debate cannot be understood in this manner – the debate is not regarding whether or not the owner has given up hope in the case of the ganav and gazlan.

The Chazon Ish explains that yi’ush is a far more complicated issue – it is not a black and white matter. In the case of theft there is a mix of emotions of both hope and despair. Monetary ownership is a function of one’s control of the object in question and it is up to the Sages to decide at what point in this mix of emotions is this control lost. For the Chachamim this point is reached in the case of the ganav. The identity of the thief is unknown and there is no place direct his hope in retrieving the stolen item. For R’ Shimon however, current lack of identity is not a problem for a search can be initiated. The overriding issue is rather the feeling of powerlessness.

This explanation helps to understand a debate in the Gemara (Bava Kama 114). According to Ulla, if one heard the original owner exclaim that he gave up hope then all would agree that in both cases machshava is significant. This position appears to make sense as the question of the owners hope is clarified. However according to Rava the debate still stands. Why? The Tosfot explain that his exclamation is not taken seriously and his true feelings are otherwise. Understanding yi’ush as a function of complex emotions this makes sense. The exclamation of the owner is but one of his emotions that is also partnered with enduring feelings of hope. Consequently an exclamation alone, according to Rava, would not resolve the debate.

25 See the Tosfot Yom Tov who rules that mental designation alone is not enough and one’s intentions must also be articulated.

26 A ganav steals the object secretly, in a manner where he ideally will not be seen and will not get caught. A gazlan however is not bothered with confronting his victim or being identified.

27 There is a discussion in the Rishonim on that Gemara regarding the state of the hide and the form of tumah that the hide is becoming susceptible to. This discussion is beyond the scope of this article.

28 The Gemara explains that yi’ush alone is not enough. A physical change in the stolen object is also required. In this case however machshava also affects a change in the name of the object. Initially it was a hide and it became a table cover. The Gemara teaches that a change in name is equivalent to a physical change for these purposes.


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