That's the סוגיא of יאוש שלא מדעת. איתמר: יאוש שלא מדעת, אביי אמר: לא הוי יאוש, ורבא אמר: הוי יאוש. יאוש שלא מדעת means, we know that if a person finds an object and the owner gave up hope, so the person who finds it could keep it. יאוש שלא מדעת means that the person picked up the object before the loser, the one that lost it, realized that he lost it. So, obviously he wasn't מתייאש yet because he doesn't know he lost it yet. Can the person who picked it up keep it or not? אביי says לא הוי יאוש. אביי says it's not considered that he was מתייאש, and therefore you're not allowed to keep it. So if a person picks up an object before the owner realized he lost it, even though later on the owner is מתייאש, too late. You can't you can't keep it. That's called יאוש שלא מדעת לא הוי יאוש, it's not considered יאוש. How does he know whether the owner... Huh? How does he know whether the owner... Well, in many things we assume there is that's a Good question. Certain things we could know sometimes, but the case here is even if it's a ספק יאוש שלא מדעת. If you don't know if he knows, you have a ספק, you're not allowed to keep. So יאוש שלא מדעת לא הוי יאוש even if you don't know. And רבא says no, יאוש שלא מדעת הוי יאוש. And the

גמרא even explains that דבר שיש בו סימן, כולי עלמא לא פליגי. You're allowed to use, but you can't keep. But you're still to keep it. Watch it. You have to watch it and then give it back when you when you find him. Yeah, watch, you're not supposed to keep it. Correct, correct. Yeah. You hold it, you don't keep it. Mm-hmm. Okay. So the גמרא explains: something that has a סימן, כולי עלמא no one argues that it's לא הוי יאוש. Even רבא will agree that this is not יאוש. Why? Because something that has a סימן normally a person is not מתייאש. So when you found it, you cannot say, \"Well, the only reason he wasn't מתייאש is because he didn't know he lost it, but he would know he lost it, he would definitely have been מתייאש already.\" Can't say that, because by דבר שיש בו סימן, something has a סימן, normally a person would not be מתייאש. So everyone agrees that if you find an object before he knows he lost it, and it's a דבר שיש something that has a סימן, and later the guy is מתייאש, בפועל ממש מתייאש, you can't keep it. A

דבר שאין בו סימן, something has no סימן, that's where there is a מחלוקת. So רבא says הוי יאוש. And the reason he gives why it's called יאוש is because we assume that had he known he lost it, he would've been מתייאש, so כאילו he was מתייאש already. And אביי says, \"No, יאוש שלא מדעת לא הוי יאוש.\" That means that you're not allowed to keep it. Comes the גמרא later on דף כ\"ב עמוד ב', גמרא פסקנ'ס: הלכתא כוותיה דאביי ביע\"ל קג\"ם. That this is one of those few cases in ש\"ס where the הלכה is like אביי against רבא. יע\"ל קג\"ם, this is the six cases. The י' is יאוש שלא מדעת, הלכה is like אביי. So the bottom line is that הלכה is יאוש שלא מדעת לא הוי יאוש, which means that when you find something and the person didn't know yet he lost it, so then you're not allowed to keep it. The truth is רבא agrees also, but not in all cases. He agrees in a case where it has a סימן, he also holds that way. The גמרא in בבא קמא mentions this, and I mentioned last week, and this is one of the truths this is going to be a continuation to last week's שיעור. I thought everyone holds that if it has a סימן then it's no יאוש. Right. Because if it's יאוש שלא מדעת. No, if he if he בפועל was מתייאש, and you found it after יאוש, even by דבר שיש בו סימן, if you happen to know he's מתייאש. See, דבר שאין בו סימן, you don't have to know he's מתייאש. You assume he's מתייאש. Something has a סימן, you assume he's not מתייאש. But what happens if someone told you, \"I heard him being מתייאש\"? Then you could keep it. But that's only if you found it after he was מתייאש, but if you found it before, even though later he was מתייאש, you can't keep it according to everybody. And how do we find out? You have to find out when he was מתייאש? Right, right. You have to find out. We would assume that the rabbis tell us to think this way. No, since it's a ספק, we don't know, so it's considered יאוש שלא מדעת. The גמרא in בבא קמא דף ס\"ו, here the גמרא wants to learn out, okay, what I'm going to bring in now is תוספות and הרמב\"ן. Okay, I'll say it before I even bring the גמרא, it'll be clearer this way. When we say יאוש שלא מדעת is not יאוש, way we think normally the פשט, what does that mean? That if I find something, that means it came to my hand before the person knew he lost it and was מתייאש, I can't keep it. Now, what do you mean normally I can't keep it? I have to give it back. If I would find out who has it, I have to to return it. In that ענין is a מחלוקת between תוספות and the רמב״ן. As I will bring soon, תוספות learns that even by יאוש שלא מדעת, I don't have to return the object. I could keep the object. Why, we just said יאוש שלא מדעת לא הוי יאוש, it's not called יאוש! So תוספות says what it means is that you could keep the object, but you have to pay the money. If it would be יאוש, it's yours, and you're פטור. If it's יאוש שלא מדעת, you owe it, you have to give it back, but you don't have to give back the object itself. You have to give back the דמים, you have to give back the money. But the object, you keep even by יאוש שלא מדעת. That's what תוספות learns. Now,

bringing where תוספות says this, the גמרא in בבא קמא דף ס״ו wants to know if there is דין יאוש by גניבה. If יאוש, if a person steal something, and afterwards the owner is מתייאש, is there a דין יאוש? So the word is יאוש קונה בגניבה. What does it mean יאוש קונה בגניבה? בגניבה we're not talking about whether you have to give it back. Everyone knows that if he stole something he has to give it back. But do you have to give back the object, or you're sufficient if you pay the money for it? If יאוש is קונה, good question. A גוי? אפקעתא דגוי. Nobody worried about this. קינדערשע ביזנעס. By גניבה, if someone steals something, there is a חיוב of השבת אבידה, השבת הגזילה I mean, והשיב את הגזלה. There's no question that no matter what happened, if he's מתייאש or not מתייאש, you have to return it. But the גמרא wants to know if יאוש is קונה by גניבה, what it means is, if we hold that יאוש works by גניבה, you don't have to return the object itself. You are קונה the object. But there is still a דין that you have to, for והשיב את הגזילה, you have to return the money. The גמרא wants to know, the גמרא wants to know if there is a דין here. And the גמרא says like this, a סברא, a סברא why I would say that יאוש works by גניבה. So the גמרא says, מידי דהוה אמוצא אבידה. Just like if you find an object, מוצא אבידה, by a person who finds an object, לאו, isn't the דין that כיון דמייאש מרא מיניה מקמי דתיתי לידיה קני ליה? If the owner is מתייאש before he gets it, he is, he is קונה. הכא נמי, that גניבה should be the same. כיון דמייאש מרא, if the owner is מתייאש, קני ליה. So the

גמרא wants to learn out a סברא that we learn out מדאורייתא, מה מצינו from the תורה, a סברא that יאוש is קונה by גניבה. Where did we know it from? If יאוש is קונה by, by מציאה, then why shouldn't it be קונה by גניבה? That's the גמרא's סברא. Comes תוספות and תוספות says, how does the גמרא try to compare יאוש by גניבה to יאוש by אבידה? אף על פי שאין יאוש מועיל באבידה בתר דאתא לידיה. If the guy was מתייאש after he got it, it doesn't work. By גניבה, it's always after he got it! The גמרא says here clearly, כיון דמייאש מרא מיניה מקמי דאתא לידיה קני ליה. And he says from בבא מציעא we find clearly, יאוש שלא מדעת לא הוי יאוש. So if you find it after, you have to, the only time you're קונה if you find it before he, after he was מתייאש. But if you find it, if it comes to your hand before he was מתייאש, it doesn't work. So how do you want to learn out גניבה from it? When by גניבה, the יאוש is clearly after he got it! That's the whole דין. גניבה means he got it, he took it, now the owner was מתייאש, and the גמרא wants to say, is the גנב קונה it because the guy's מתייאש? And why would we say he is? Learning it out from אבידה. But by אבידה, it only works if he got it before! זאגט תוספות, maybe he thinks he's gonna find the guy and get it back? Why is he totally מתייאש even by גניבה? We're talking if he is מתייאש. We're talking if, we're not talking, of course if he's not מתייאש, if he's not מתייאש, he's not מתייאש. זאגט תוספות, מכל מקום בעי למימר שפיר דיאוש קונה בגזל בתר דאתא לידיה. No, we could learn out. The גמרא has a right to learn out that גזילה, גניבה, you're קונה even though he got it before the יאוש and the יאוש came after he got it. Why? Because במציאה נמי, נהי שלא היה קונה לענין זה שלא יצטרך להשיב לפוטרו לגמרי, when we say יאוש is not קונה if you got it before he was מתייאש by אבידה, the פשט is you're not קונה and you are not פטור completely. הואיל וכבר נתחייב בהשבה, since you already were חייב to return it, when you took it, you had to give it back, השבת אבידה. Now the guy is מתייאש afterwards, too late. The חיוב is there. מכל מקום היה קונה לעניין זה שלא יתחייב לשלם כי אם דמים. He's like by a גזל. That even by אבידה, you are קונה it enough that you don't have to return it, and you have to return the money. Now now we understand how we want to compare גניבה, because that's exactly what we want to know by גניבה. When we say יאוש is קונה by גניבה, what do we mean? That you have to pay. That you have to pay is no question. But what we're learning out is that you have to pay, you don't have to give back the object. That's exactly what happens by אבידה if you found it before it was מתייאש. You still have to return the money. So it does work that the עצם of the חפץ you don't have to return, even though יאוש שלא מדעת לא הוי יאוש. Nevertheless, it works enough that you don't have to give back the object. Ay, what does it mean לא הוי יאוש? That you have to pay for it. Real יאוש means you don't have to pay, it's yours to keep it. By יאוש שלא מדעת, לא הוי יאוש, the יאוש doesn't work, means that you do have to pay for it. Why not? Even though it came through עבירה, you could be קונה it. If if there's a דין יאוש, okay, the גמרא is bound to learn out יאוש, and there's a דין יאוש. If there's a דין יאוש, you're קונה it. There's a whole סוגיא in בבא קמא here, יאוש קונה, how is it by אבידה, גניבה, how is it We have certain הלכות like you get a לולב and it's stolen. It's all based on this גמרא. You found it before he gave up, and then he gave up. Right. He finally gave it, yes, finally gave up. But too bad. Right, a דבר שאין בו סימן. Or, even דבר שיש בו סימן according to everybody. According to דבר שאין בו סימן is only according to אביי which we פסק'ן. דבר שיש בו סימן even רבא says that יאוש שלא מדעת לא הוי יאוש, because we wouldn't assume he went to מתייאש. Even though at the end he was מתייאש, it doesn't work. So תוספות says here a חידוש, that the פשט it doesn't work doesn't mean it doesn't work at all. If it doesn't work at all, what's the דין? You have to give it back. If you ever find out who the owner is, you have to give the object back. And תוספות says no, יאוש שלא מדעת does not work, it's not יאוש, but you don't have to give back the object. You could just you have to give back you have to pay for it, but you don't have to give back the object. This is שיטת התוספות. It seems that the רמב\"ן argues. What does it seem like? That's how it comes out, that's how הקצות says. He quotes the רמב\"ן in the מלחמות. The רמב\"ן wrote a ספר called מלחמות ה'. The ספר לכתחילה is made he went to war with the בעל המאור. The whole ספר is based on upsetting the בעל המאור. He has something against him. Just like we spoke before about the ראב\"ד wrote everything against the רמב\"ם, try this. The בעל the רמב\"ן was against the בעל המאור. The בעל המאור, the רז\"ה, ר' זרחיה הלוי, and the רמב\"ן named his ספר מלחמות ה'. Who? I thought he I thought he wrote it when he was like very young, 18, 19? The רמב\"ן, I don't know when he did. The the מאור, המאור. The בעל המאור, yeah, yeah. The מאור טאקע is because he writes on the רי\"ף, and the רמב\"ן was upset that he that's קשיא's. Anyway, so the רמב\"ן in the מלחמות in a certain גמרא later on in בבא מציעא, but the bottom line what it comes out is that the רמב\"ן says why טאקע is יאוש שלא מדעת לא הוי יאוש? What's the reason? Why is טאקע if you find it, the bottom line is he was מתייאש, so what do you care if you found it before? But afterwards, after you have it already, the guy is מתייאש, so you should be able to keep it. So he says a סברא like this: יאוש does not work ברשות. If you are מתייאש on something that you lost and it's in your רשות, יאוש doesn't work. When the guy picks up an אבידה before you were מתייאש, so obviously, he now picked it up having to return it to you. So he becomes your שומר. He's holding it for you. So now when he's holding it, he's holding it in your it's your רשות really. So now that you're מתייאש, it's יאוש ברשות. It's יאוש in his own רשות. That's the reason he says why יאוש שלא מדעת doesn't work. It's an interesting פשט. Yeah, I'm holding it for you. If you give me something to watch for you, it's in my house, but I'm watching it for you, so it's called it's still in your רשות. למשל, what's the דין I just I could see he brings it also, but I don't remember now. There's a דין that if a person could only be מקדיש something that's in my רשות. We learn out from a פסוק, you remember we learned this, איש כי יקדיש את ביתו קודש, קודש, מה ביתו ברשותו, אף כל ברשותו. You could only be מקדיש something in your רשות. So what happens if I have something in your house? In that סוגיא we had it. Something in your house, you're a שומר of mine. Can I, where I am, be מקדיש it? Yes. I can't be מקדיש it if you deny it. If something is mine and you don't want to give it back to me, you claim it's not true, then I can't, because that's not called ברשותו, because you're not holding it for me. But as long as, all the questions later, as long as, as I'm a regular שומר and I'm holding it for you, that's called ברשות. And like it's not. So holding it for somebody ברשותו. A guy who finds an object and the owner was not מתייאש yet, but now I'm holding it with the intentions of doing the מצוה of השבת אבידה, I want to return it to you, so I'm holding it for you, I'm your שומר. So ידך כיד בעל הבית, so it's as if you're your house. Now you're מתייאש, so you're מתייאש when the object is in your רשות. And the רמב\"ן says that if you're מתייאש on an object that's in your own רשות, יאוש doesn't work. ממילא יאוש שלא מדעת doesn't work. So that לפי זה, the whole קשיא of תוספות falls off here. תוספות asks the קשיא, we have to keep the חשבון here, what made תוספות come up with this idea that by יאוש שלא מדעת you don't have to return the object, keeps the חפץ? Because he had a problem. The גמרא wants to learn out יאוש by גניבה from יאוש by אבידה. Now, יאוש by גניבה we say comes after after you were first you took it and then he was מתייאש. How do you learn out אבידה? תוספות answered, I have no choice to answer, I must say because even by אבידה I could keep the object now and and and I have to still return the money, but the object I could keep. ממילא אבידה and this fits. Because otherwise the גמרא doesn't make any sense. How do you expect to learn out יאוש by אבידה for יאוש of גניבה when by אבידה it only works if you picked it up after יאוש, and by גניבה before יאוש? ממילא we have to straighten this out. According to the רמב\"ן, this whole קשיא doesn't work. We understand right away how we could learn out גניבה from אבידה, even though by אבידה it only works if you're מתייאש first. פשוט. Why doesn't it work if you're מתייאש later? Because since you're holding it for him, so it's his רשות, so the יאוש doesn't work. A גנב is not holding it for him, so יאוש works. What's the problem? The דין of יאוש is the same. The only problem יאוש doesn't work by an אבידה if you picked it up before he was מתייאש, because since you picked it up with the intentions of giving it back, ממילא it's still his רשות. Now יאוש doesn't work. But the same יאוש if it wouldn't be ברשות would work. And by גניבה it's not ברשות, because the guy is stealing it. The guy doesn't want to hold it for the other guy. That's the object. What about the money that he pays back? Because he stole the object. What about it? He's not מתייאש. Doesn't, we don't care. By גניבה, we don't care. What if there's a third party? Somebody puts his name on it and another person finds it or Put a סימן. steals it. Then he sells it to somebody else, and then the third party finds the name. Who loses the money out? If he has to return it, wouldn't he lose the money that he paid to the second party? The third guy has to give it back to the owner and go collect from the second. Yes, but the second is not paying for some reason. So what can you do? So the third one loses it because he bought it? Yeah. Yeah, if the second one doesn't pay, yeah. So it comes out like this from here. So according to the רמב\"ן, All right, good night. Thank you, thank you. Take care, good luck. Good luck, be well. Talking about stealing now. Oh, don't don't ever think of it. Society is terrible. Terrible. So it comes out from here that there's a מחלוקת between the רמב\"ן and תוספות. According to תוספות, יאוש שלא מדעת, if you picked it up before it was מתייאש, you still could keep the object. You just have to return the money. According to the רמב\"ן, you don't have to say that.

According to the רמב\"ן, יאוש שלא מדעת means you could keep the whole thing, you don't even have to pay for it. You keep the whole thing. So it's a מחלוקת between the רמב\"ן and תוספות. דממילא comes out another מחלוקת between the רמב\"ן and תוספות. See, רמב\"ן, תוספות did not answer the רמב\"ן's תירוץ. תוספות could have answered the רמב\"ן's תירוץ. Obviously, one of the reasons is because תוספות does not hold like the רמב\"ן that יאוש ברשות doesn't help. The רמב\"ן learns that the whole reason יאוש שלא מדעת is because it's יאוש ברשות. But תוספות doesn't learn like that. תוספות learns יאוש works in your רשות also. If you lost something in your רשות and you're really really מתייאש, it works, not like the רמב\"ן. We actually see it in a תוספות. תוספות דף כ\"ו in בבא מציעא, תוספות says here that by the house, in his own house, so he says דאין בעל הבית מתייאש. Someone lose something in your own, you're not מתייאש. קסבר, you think, you assume שימציאנה היום או למחר, you'll find it today or tomorrow. כיוון שאין אחרים עמי דרים בבית, there are no strangers in your house, so you'll find it. According to the רמב\"ן, that's not the reason, because he's not מתייאש. According to the רמב\"ן, even if the guy says, \"Clearly, I am מתייאש of my house, and there were strangers in my house, and I really think someone stole it, and I'm מתייאש,\" not ייאוש. תוספות doesn't say that. תוספות says, \"פשוט technically, probably and in most cases, a person is always not מתייאש. I think I'll find it.\" is because תוספות does not learn this concept that ייאוש in your own רשות doesn't work. ייאוש wherever it is, as long as you're מתייאש, it works. So it comes out here we have a double מחלוקת between תוספות and the רמב\"ן. On one hand, what is the דין of ייאוש שלא מדעת? According to תוספות, ייאוש שלא מדעת לא הוי ייאוש, not ייאוש, it means it doesn't work, doesn't work perfectly, 100%. It works a little bit, that you can keep the object, you just have to return the money. The רמב\"ן says, \"No, ייאוש שלא מדעת means you don't fix in anything.\" Another מחלוקת in תוספות and the רמב\"ן, according to תוספות, ייאוש ברשות works. If you're מתייאש of something, it's in your רשות, ייאוש is ייאוש. Unless we have a ראיה you're not מתייאש, because it's in your רשות. But otherwise, it's ייאוש. And the רמב\"ן says, \"ייאוש in your own רשות doesn't work.\" So we have to understand what is the סברא or the מחלוקת between the two. Now we have to understand תוספות סברא. See, we have a ראיה, תוספות has a ראיה, because the גמרא compares גניבה, so we have to say it. But what's the logic behind it? What is the logic that

ייאוש שלא מדעת works only that you have to return, is לא הוי ייאוש you have to return the money, but not the object? ממה נפשך, or the ייאוש works, or it doesn't work. If it works, you shouldn't have to return anything. If it doesn't work, you should have to return you should have to return nothing. And he says the reason is, why do you still have to return the money? כיוון דנתחייב בהשבה, because when you picked it up, the guy wasn't מתייאש yet, so you're חייב to return. And that חיוב stays. But you were חייב to return the object also. So why doesn't that stay? Why is that did that ייאוש that it was מתייאש later take that off? What is the logic that's evident in this סברא? So like I said, this is the המשך for last week's שיעור. Last week I explained a פשט in ייאוש, that what is the difference between ייאוש and הפקר? So all the ראיות, if it's in, but הפקר means that it's not yours at all. If you're מפקיר something, it's not mine at all. Just like if I sell something to you, it's yours, it's not mine at all. If I give you a מתנה, ייאוש is not like that. All ייאוש is סילוק, I'm just removing myself from it, ובמילא I can't come and ask for it. You can keep it, but it's has still a connection to me. It's still mine. Or using the words that the רבי used, I remember I brought a ראיה, דוגמה from the case of שמיטה with the money of שמיטה. So the רבי says that that even though the guy doesn't have to pay, but there is a שיעבוד still on the thing, we would use the word שיעבוד here also, that there is a שיעבוד in the object to the original owner, a שיעבוד and a שייכות. And nevertheless, the תורה was מתיר it. Remember, I brought that פשט שמלה, that what's the idea of ייאוש? אין לו תובעים. You just can't claim it, that's all. Not that it's not yours. Usually, if it's not yours, you can't claim it, but if it's yours, you could claim it. Here it's yours and you can't claim it. Or remember, I went by by the case of אשר תאבד ממנו if something is זוטו של ים or גנב, overflow of the river, so what does it say? שהיא מותרת, doesn't say it's not yours anymore. Someone could take it, but it's still yours. I wanted to bring out that the concept of ייאוש is that it's still yours, אלא מאי, the guy could take it. That's the ענין of ייאוש. So, what's there? Basically, a שיעבוד on the thing that's to you, to the original owner. If we go with that line, when we say that there is a שיעבוד left, there are two ways to look at this ענין. This now we're continuing further from what I finished last week.

When you say that there is only a שיעבוד left, and it's not completely mine, because you could keep it, so obviously, there's only a שיעבוד, what does a שיעבוד mean? And here you could say it in two ways, and that would be the מחלוקת between the רמב\"ן and תוספות. You could say like this. שיעבוד means when we speak a regular expression of שיעבוד, where do we find the expression of שיעבוד? שיעבוד נכסים. למשל, if I owe you money, all my property is משועבד to you. What kind of connection does my property have to you? The עצם thing or only the value? The value. The thing is not yours, but you have a certain connection to the value, because I owe you money. I don't know, the field is not yours, that has nothing to do with you. There's a value. So you could say like this. When we say by ייאוש that what's left to the guy is the שיעבוד, so you could טייטש what it means is what's left, his connection is to the value of the object he lost, not to the עצם object. But, if he doesn't pay, this can become his. When we get to it. Yeah, but still, the connection to the value will still remain, even though you could always take it and sell it. That's why he can pay instead of returning the object. Now, you

could say פארקערט also. Since you don't have to return it to me, so my connection is not to the value. So you can say פארקערט, since יאוש worked that he doesn't have to return it, וממילא I will never get that value, so that value, obviously we're saying the value I don't have. You could say I still own it, but I have no use of it, because I can't use it. You don't have to give it back. You use it, not me. So that's the value. So I'm saying you could look at this, when we say that there is left a שיעבוד, you could look at it from two opposite ways. You could look at a שיעבוד means that the connection of the original owner to the object is to the value of it, not to the עצם. That's the פשט שיעבוד. Or you could say פונקט פארקערט, that because he doesn't have to return it, so the connection now is דוקא to the עצם, to the object itself. It's still yours, but the value not. If the thing is yours, good. The thing is mine, but I have no... Value goes always together with השתמשות, usage. I have no use of it. I can't use it. That guy has it. I can't sell it, I can't have any value of it. But it's mine, so it's mine in the עצם. So you could look both ways. So I want to say like this: this is where the מחלוקת תוספות and the רמב״ן. They both hold that the ענין of יאוש, like I said—I think so, so they hold like I say, kidding, but that they both hold this נקודה, that יאוש means that it's still mine. The מחלוקת is what's the פשט it's still mine. תוספות learns what's the פשט it's still mine means that it's mine, the value belongs to me. Now we'll understand תוספות שיטה very well. It's this: when you find it before יאוש, I mean after—listen, if you find something after יאוש, since the תורה says that you don't have to return it, so there is no דין of returning at all. The תורה never put a חיוב השבה. After יאוש, if you find after, תורה never put a חיוב of returning. So don't have to return, fine, nothing. Is it הפקר? No! No, it's mine. I mean, I was מתיאש. No, anybody wants to take it, yeah. And I could take it, too. So if I found it, I could keep it, and it's still connected to you. Yeah, it could, but the תורה says I could keep it, so I keep it. If I found it before יאוש, there was a חיוב השבה. I have to return it. What do I have to return? Both. The value and the object itself, it goes together, but you have to return both. Then after I already had the חיוב השבה, came the guy and was מתיאש. יאוש works. יאוש works to what? It takes away the עצם. יאוש means that there's no more connection between the guy and the עצם and the חפץ. But יאוש does not take away the שייכות, because it remains a שייכות to the guy with the money. So therefore you have to return the money. In other words, this is only before the חיוב came, before the חיוב to return came, אז ס'איז נישט געלייגט, מלכתחילה didn't חל a חיוב. If there's no חיוב, so it's not חל a חיוב at all. So I don't have to return anything, even though there's still a connection to the guy. But the תורה says you don't have to return it. So the תורה says, as far as you're concerned, you don't have anything to do with the guy anymore. So I don't have to return. But if you found it before יאוש, so the חיוב was there already for you to return, and the חיוב is on both. Now to take away, יאוש could only take away where the יאוש works. Where does the יאוש work? On the עצם, so you don't have to give back that עצם, and טאקע פאר דעם don't have to give back the עצם. But יאוש doesn't work for the money, because the money still remains his, so you got to return it. So again I'm trying to tell you, before you got this... Has a חיוב to return the money. Yeah, yeah, there is when you found it before יאוש, there is a חיוב to give back this חפץ and the value, both. It goes together, but you have to give back both. יאוש could only take away the חיוב of what of what יאוש is. יאוש takes away the connection of the עצם, so it's not his עצם anymore. So you don't have to give, and יאוש works. Why it doesn't work for the money? Because יאוש has nothing to do with the money, the money is still connected. So it can't take it away. Not to allow it to come before, if you find it after יאוש, that's much easier. דא איז א כלל. א כלל, it's easier not to allow something to happen rather than breaking something that's there already. It's much harder if it's there already, you got to... So before the חיוב came, you found it when there was no חיוב, so there's no חיוב, don't give it back. That's יאוש before you found it. יאוש after you found it, יאוש works. It's a regular יאוש. But what does it work? It works for whatever יאוש is, and therefore what does it do? It stops you from having to give it back, because that cut him off, but the money you still have to give it back. The רמב״ן

learns the other way. The רמב״ן learns that the גדר of יאוש disconnects you, removes you... Because the השבה of the אבידה is only בעין? No, to the עצם also. But when you're מתיאש, it takes away the חיוב השבת אבידה from the עצם. השבה from the עצם. Only from the עצם, because for the עצם you're not connected anymore. But it still leaves the חיוב השבה for the דמים. I had like I So I tried it for איי אבל זה, if you found it after ייאוש you should also have to give back the דמים? It never allowed the חיוב השבה to come. But here when the חיוב השבה came and you want to take away, you only could take away, you only could take away what the ייאוש could take away. ייאוש could only take away the connection to the עצם. The רמב\"ן learns the opposite. The רמב\"ן learns that the ייאוש disconnects you from the value, but not from the עצם. So the רמב\"ן can't learn like תוספות, can't learn like תוספות to say that the reason that you just still have to return, you still have to return the money, why? Because the ייאוש doesn't take away the money. The רמב\"ן doesn't learn like that. The רמב\"ן learns פארקערט, ייאוש takes away the money. So the ייאוש, if you found it after ייאוש, the תורה was מתיר. If you find it after ייאוש, then you still have to return it. Before ייאוש. If you find it before ייאוש, you have to return it. So the value טאקע took away, but the עצם you have to give back, so why shouldn't you return it? So he can't learn like the רמ- like תוספות that you'll still have to pay back the money, פארקערט, the paying back the money it took away, but the עצם, so you should have to give back the עצם. Also, right? So how could it be that you don't have to give back? So we're saying that you when if the guy was מייאש, so the if the ייאוש worked for the עצם, because for the שוויו. So it's not like תוספות. So there must be another reason that he holds why the דין of ייאוש שלא מדעת is לא הוי ייאוש, and I'll tell you what his reason is. Going back again, since the whole ייאוש is that you're מסלק yourself from the thing, the רע- the רמב\"ן learns if the thing was in your רשות, since the guy who found it is holding it for you, so it's in your רשות, ייאוש in your רשות doesn't work. Why? He says like this: If the whole גדר of ייאוש is, call it, removal of self, you removing yourself doesn't work when the object is with you. Imagine if I have it in my pocket, let's say. I said, \"Wait, I'm not connected to it.\" What do you mean you're not connected to it? You can פייפן עד מחר, you're connected to it. It's by you, it's in your pocket. So he says the same, ייאוש ברשות, and it's all based on the same סברא that I'm saying. Since ייאוש is סילוק, that's all it is, you're removing, you're טאקע removing yourself from the שוויו, but that doesn't work at all. Why doesn't it work? Because it's ייאוש ברשות. So if it's ייאוש ברשות, your ייאוש doesn't work. So if it doesn't work, so what's the דין by ייאוש שלא מדעת? You have to give back the whole thing. You have to give back because the ייאוש doesn't work. תוספות does not learn that because תוספות says like this: What are you telling me that the ייאוש doesn't work because it's in your רשות, so big deal, like because it's סילוק, you cannot be מסלק yourself from the object which is by you. That's only looking at it from the perspective of the object. What about from the perspective of the person? I moved myself. There's two things: when you remove yourself from the thing by ייאוש, two things happen. You remove yourself, and ממילא the object is removed from you. What happens here, if it's ייאוש in your רשות, the object cannot be removed from you. But you in your mind that you is your mind, you don't know it's in your pocket, you don't know it's in your רשות, so you could remove yourself. So the רמ- the רמב\"ן says טאקע, because ייאוש is only removal, you cannot remove yourself בשעת it's by your own רשות. ממילא, every time ייאוש שלא מדעת, if it's in your רשות, you can't remove yourself. And תוספות says you could remove yourself from your רשות. Why? Because the עיקר of the removal is the person, not the חפץ, which means that here is another סברא, another נקודה in their מחלוקת. When you say that ייאוש שלא מדעת means you remove yourself, and automatically normally in a regular case of ייאוש, you are removed from it, and it is removed from you. What happened in a case where it's not removed from you, but you are removed from it? So that's what the מחלוקת is. The רמב\"ן

says the עיקר of the removal has to be the חפץ, and since in your רשות that doesn't happen, ממילא the ייאוש doesn't work. No, it's just like קרקע. מה שאין כן תוס- תוספות says that ייאוש in your רשות does work. Why? Because the עיקר is that you remove, and in your mind you're removed, not from the perspective of the חפץ, as that's for the removal. How can that be like for example ביטול חמץ? There is something worse than ייאוש, it's ביטול and it's still in your רשות, but it's בטל. When you keep חמץ there, you sell it for somebody, it's in your רשות, you you you were מבטל מבטל the חמץ. That's הפקר, that's not ייאוש. No, no, but it's it's something worse than ייאוש, it's worse, even stronger. No! Stronger, you could! I can be מפקיר something if it's in my רשות. I could remove myself because I'm saying I don't want it. But ייאוש, I do want it, אלא מאי I'm מייאש. That's where it doesn't work. The גברא not חפצא. So no, but ממילא the גברא falls on the חפצא. Because I'm removing myself, ממילא the thing is removed. I can't do that because it's not removed from me because it's there. But I removed myself. It's not as strong. The question is which of the two is the עיקר. So it comes out from here that the מחלוקת between the רמב\"ן and תוספות is in these two ענינים. It's all based on one נקודה, and the נקודה that יאוש is only סילוק, and the בעלבאתישקייט still remains. That's the reason why תוספות has this סברא and the רמב\"ן this סברא. תוספות has this סברא that you only remove yourself from the עצם and there is money you have to give. The רמב\"ן says that's not, that you don't have to give anything back. Why not? Because it's יאוש ברשות, and under תוספות that's not so, יאוש שלא ברשות. And it's all based on one נקודה, it's another, wait a second, on one, this one נקודה that יאוש is סילוק. Shut every... This will explain exact in the גמרא here in בבא קמא. In

בבא קמא, we have three opinions. The whole גמרא is learning out, trying to learn out יאוש by גניבה and גזילה from יאוש by אבידה. So one says we learn it out, and just like by יאוש by אבידה it works, by גניבה also. One says, I admit that יאוש works by גניבה, but only מדרבנן, not מדאורייתא. And the third מאן דאמר says, I'm telling you, not even מדרבנן, יאוש doesn't work by גניבה. What's the difference? Why would there be a סברא that by גניבה it shouldn't work? The second סברא we said, מדאורייתא it doesn't work, and we do not learn it out from אבידה. And the third one says, not only מדאורייתא it doesn't work, it wouldn't work מדרבנן neither. What's the סברא? So the גמרא says the סברא is, here: אמאי? There's a סברא: לא דמי לאבידה, you can't compare it to אבידה. אבידה, דכי אתא לידיה בהיתרא אתא לידיה. By אבידה he got it בהיתר, he found it and he picked it up to do a מצוה. אבל האי, but by גניבה, כיון דבאיסורא אתא לידיה, so since it came באיסור, so מדאורייתא it's not the same, so מדאורייתא it doesn't work, but מדרבנן it is. And רב יוסף says, יאוש אינו קונה אפילו מדרבנן. So the מפרשים ask, who cares it came to him באיסור? If there's a קנין of יאוש, so what's wrong if it came באיסור? But there's still a קנין of יאוש. The answer is, if יאוש would be there's a real קנין that means that it's not yours anymore, in other words, the תורה made this into a קנין like I gave it away or something, then what's the difference if it is בהיתר or באיסור? We're saying now, באמת יאוש is still yours. אלא מאי? The תורה was מתיר to take someone else's thing. So he holds, when is the תורה מתיר to take someone else's thing? If it got there בהיתר. Why should the תורה be מתיר to take someone else's thing when it got there באיסור? So he says that the תורה wouldn't do it, and therefore the תורה doesn't say it's קונה. Comes רב יוסף and he says, I'll tell you, דרבנן wouldn't do it either. Not only would the תורה not do it, דרבנן also would not, why should they do it if it's... So again, if it's a קנין that takes it away, take it away. A קנין is that it's still yours and nevertheless the תורה was מתיר, so he says why would the, we can't imagine that the תורה was מתיר to take away something that's באיסור. And the other one says, but מדרבנן, yeah, and he says מדרבנן, no. And based on that, they're all these תוספות and all the, but at the end the פסק is that you can't, if you steal a לולב or a סוכה, we פסק'ן יאוש is קונה. יאוש is קונה. Only thing is, some hold יאוש is קונה with שינוי רשות. How can you be קונה something of yours? Oh, שינוי רשות, because that makes a real קנין. Technically, no, שינוי רשות normally is not a קנין, but together with יאוש. What שינוי רשות? Changing? If the guy lost it in his house, how can anybody else be קונה something in his house? Why not? If I pick it up? Isn't his house קונה automatically? No, if he is מתיאש, he can't be קונה something that's his לכתחילה. He doesn't know anything about it. No, how can he be קונה his own thing לכתחילה? How can anyone else be קונה? It's a preexisting קנין there. See, this is going to get a little bit confusing. One of the סברות, they say why it won't be קונה, because it's יאוש שלא מדעת. The חצר cannot, when he dropped it, he didn't know he dropped it yet. So the חצר, his חצר got it before he was מתיאש. So it's not קונה. And later, it's too late already for him. Imagine the חצר is like a person. His house is like a person. If a person got it before יאוש, and then he was מתיאש, it's not yours. So when he dropped it, the חצר got it. At this moment, he doesn't know he dropped it. At that second, so the חצר already have it. So later you're מתיאש, the חצר can't get it, it's יאוש שלא מדעת. Maybe the guy found it after יאוש. But the חצר always has it before יאוש. Because the second he dropped it, he doesn't know, and that's the time when the חצר got it. A גזילה, a person who steals is always before יאוש. Always before יאוש, yes. That's a good question. What's the חידוש by גניבה? There is a good question: what's the חידוש in גניבה? There's no, I'll tell you... If there's a third party... whoever finds it, he loses it, and another one, what position does he take? Third party. If the if the second guy loses it also, has to go if it has no has no has a סימן, has to go back to the first. Has no סימן, the third guy can keep it. Yeah. Yeah. See, people, unfortunately, some now no one cares, but years and years before, we would make a חילוק between, we would confuse things. חסידישע גניבה used to mean, if you have a מאמר, and you don't want me to copy it, I could בגניבה copy it. But to take it away from you, that's גניבה, that that's a דאורייתא, דאורייתא, if you take away from you. People think, come to someone's house, and you have at his כתבים or something, and when you don't look, they'll come and take and take home. But that that's no I that's not steal that that's רשעות. Borrowing a book for That's רשעות. Borrowing a book for short time, yeah. Huh? גניבה, if it's a חסידישע זאך? Yeah, גניבה of of, you know, I could steal סעודה שלישית also! A חסידישע זאך, I can steal! That's called stealing, that person is like a גנב! When they When they When they found רשימות, the whole discussion was,

should you or should you not Come and tell, because the רבי never gave it to print, and so then there's whole discussion, was the story with the מיטעלער רבי, with the with taking the כתבים, חסידישע גניבה. Oh, it never was stolen. He said the מיטעלער רבי didn't steal it away. That's what I mean, oh, to take it! Oh, to take it, I know there used to be some people with the רביים, they didn't want they should copy their מאמרים, they would go in the night, and that kind of גניבה, to copy the תוכן הענין. But to go to the רבי's house and take away something. I think the רבי's בעכער is very חשוב. I go to the רבי's house, steal the בעכער? Cuz I know that this this happened different places. Just tell him I just want to hear No. Somebody was a, one of the kids who you know there was a kid who collected the רבי's pictures a lot, you know, and had a whole album. So, one evening, he had observed in his house a party, and he's showing it and everyone, and he turned around with this and, all of a sudden, it got lost. Someone stole it. And and someone says, \"So, חסידישע גניבה.\" פשי! It was a nephew of mine. I remember I I was boiling. Which one, חסידישע גניבה? This is a רשע! This is רשעות! Someone, a kid who worked five years in gathering, in everything, just he steals from him. That's פשוט like exactly robbing a bank! It's not I so happened, they they're the רבי's picture. It's like stealing the ספר תורה. You know, you it's a תורה. It could be a חסידי- ah, It's not a חסידישע גניבה, it's a תורה גניבה, so it's the best thing? That's normal? חסידישע גניבה means, if a guy has a picture and a picture, you know, and you take it, and you make a copy of it, and you put it back, that באמת על פי דין, you're not allowed to do it without permission. There, you say it's a חסידישע זאך. But to steal it? I

remember once, some guys came to my house at this פארברענגען, and I had in my שאַפע the thing of a letters from the רבי before the אגרות were printed, this and that. So, what did they do? I was in the פארברענגען, they went up there, they had two guys watching if I get come in or not, and they took it away. Stole it! It was letters that you wrote to No, I wrote, no, not my part. The letters that the רבי letters that he wrote, the copies of letters. But that's a Never give it back? No. הם יאוש? They have to give it back. That's yours. No, so this this is That's why people say this חסידיש, they use the לשון חסידישע גניבה. Because you found the word חסידישע גניבה, put a nice word to it, it This is ממש! ממש על עריות! But, I remember, with a kid, this was a little kid. 12-year-old kid who spent 3 years, 5 years collecting, collecting, and he finally had an album. His whole pride. And it was stolen. And the תירוץ was חסידישע גניבה. It's one person. I

heard that by the דידן נצח, when, like, the whole bunch of things were stolen from the library, and the and then they were sold all around, the רבי said, anyone who has any of that stuff, there's a bomb in their house. It's a time bomb, he said, it's a time bomb. Time bomb. Crown Heights, today. There's usually front shank and nipples places where they hide things. Book and dollars and the קונטרסים and the Sticky fingers, huh? Alright. I hope, yeah. The ענין of יאוש, the חיוב and and and שליחות? In other words, is it a conscious, positive action for when you יאוש something, or is it by the way, because it's lost, you just In other words, you're That's that's what that's what my שיעור today was. the יאוש. Well, that's, it seems to be נוגע to what was learned here. Because, and I think it would help understand... I have that... there we go. So, but obviously you applied it, no? Not in this ענין, on my on my own. Yeah. Oh, that was the the the שיעור of What's the It's both, obviously, though. Depends on who's opinion you're talking about, right? And how it affects the הלכה. Okay, after, yeah, יישר כח. Are they are they

recording those שיעורים also, Rabbi, by the way? The government, yeah? Okay. יישר כח, it's been enough. Not so bad without, uh, Mendy and Archie, no? Not so bad. No יידישע jokes and no and no arguments. Otherwise okay. I think this is the best one, the bathroom at all. Oh yeah. The ice machine to be sure nice and neat.