Bava Kamma Chapter 9, Mishnah 12. We are continuing with the laws of stealing from a convert - one who steals money from a convert who has no heirs, and swears falsely that he owes him nothing. In the previous Mishnah we learned that the money goes to the kohanim: Hashem receives it, as it were, and transfers it to the kohanim. The question that arises is - to which kohanim?
The men of the watch:
The kohanim were divided into twenty-four groups, and each group is called a 'mishmar'. One mishmar would serve each week, in a cycle of twenty-four weeks.
The money is given to the mishmar serving that week. It can be handed to any kohen from that mishmar, and the kohanim divide it equally among themselves.
The bringing of the asham is also done by the men of the watch, who are the ones serving in the Beis Hamikdash at that time.
Our Mishnah discusses several cases that arise from these laws.
"Nasan es hakesef l'anshei mishmar v'meis" - he gave the money to the men of the watch and died:
The robber brought the money - one hundred and twenty-five, for example - to the men of the watch, and passed away before he managed to bring his asham. Seemingly, his heirs could claim: The money was given as a sort of 'fee' enabling the bringing of the asham and the achievement of atonement. Since the deceased did not bring his asham, and this asham will no longer be offered, it is fitting that the money be returned to them.
To this the Mishnah says: "Ein hayorshin yecholin l'hotzi miyadam" - the heirs cannot claim the money back from the kohanim. The reason for this is that it is not a mere payment: the very returning of the principal along with the fifth is part of the atonement. Even though the deceased did not bring his asham, he had already achieved partial atonement by returning the money to Hashem, who transferred it to the kohanim. And as mentioned above, if he did teshuvah before his death, his death serves as an atonement for him in place of the asham, and if not - it does not.
The source for this law is the verse: "Ish asher yiten l'kohen lo yihyeh" - whatever is given to a kohen belongs to him, and there is no taking it back.
No dependency between the money and the korban:
One might mistakenly think that the money given to the kohanim is a sort of compensation for offering the asham, and therefore it must be given to the same group of kohanim that offers it. This is not the case. The core of the law is that a person brings the money to Hashem, and Hashem instructs to give it to the kohanim of the mishmar, whoever they may be. If it happens that the asham is brought only in the following week, the men of the watch of that week will offer it: the kohanim of one mishmar receive the money, and the kohanim of another mishmar offer the asham, and there is nothing wrong with this.
The twenty-four watches are listed by name in the Book of Divrei Hayamim. The first of them is Yehoyariv, and the second is Yedayah, and therefore the Mishnah uses these names instead of 'first group' and 'second group'. The essential point is the order of things: Yehoyariv is first and Yedayah follows, whereas in the halachah itself, it is mandatory that the return of the money precedes the offering of the asham. One who does it out of order - offering the korban before giving the money - does not fulfill his obligation.
"Nasan hakesef l'Yehoyariv v'asham l'Yedayah - yatza" - he gave the money to the first mishmar, and afterwards, in the following week, he brought the ram for the asham to the second mishmar. There is no connection between the two matters, and it is valid.
"Asham l'Yehoyariv v'chesef l'Yedayah" - he first brought the ram to the first mishmar, and only afterwards gave the money to the second mishmar. Here, things do not work out well: "Im kayam ha'asham - yakrivuhu bnei Yedayah" - meaning, if the members of Yehoyariv were wise enough not to offer the asham as long as the money was not given, the members of Yedayah now offer it, after having received the money. And ideally, the mishmar of Yehoyariv should not have accepted the animal at all. "V'im lav - yachazor v'yavi asham acher" - if the animal is already gone, whether it was mistakenly offered or died in the meantime, the robber must bring a second ram, since the ram cannot serve as an asham prior to the giving of the money.
Returning the Stolen Item Before the Asham:
"Hevi gezilo ad shelo hevi ashamo - yatza" - One who brings the stolen item or its value before he brings the asham offering has fulfilled his obligation. However, "Hevi ashamo ad shelo hevi gezilo - lo yatza": One who sacrifices the ram before returning the stolen item does not fulfill his obligation and does not achieve atonement, and he must bring an additional asham offering after he returns the money.
"Ein hachomesh me'akev":
Three obligations are imposed upon this person:
Returning the stolen item - an obligation imposed on every robber.
Adding a chomesh, twenty-five percent, because he swore falsely.
Bringing an asham offering, for atonement for the oath.
What is the law if he gave the principal but not the chomesh - he handed over to the kohanim the one hundred that he stole, they sacrificed his asham for him, while the twenty-five of the chomesh had not yet been given? Does this prevent fulfillment, and must he bring another animal? Regarding this, the Mishnah states: "Ein hachomesh me'akev". The addition of the chomesh does not prevent atonement, and the obligation of the asham has been fulfilled properly. This does not mean that he is exempt from paying the chomesh - he is still obligated in it - but rather, this does not require him to bring a new asham offering.
A Final Note on the Words of the Bartenura:
The Bartenura, who copies the words of Rashi here, writes regarding "Ein hachomesh me'akev": "If he did not give it yet, and ultimately gave it" - and this seemingly implies that the matter depends on him ultimately giving the chomesh. However, the commentators are puzzled by this: a person is not required to eventually give the chomesh in order to fulfill the obligation of the asham, and the obligation of the asham is fulfilled regardless. Therefore, they explain the law as follows: indeed, an obligation is imposed upon him to give the remaining twenty-five percent, even though he returned the principal and brought his asham - but the chomesh does not prevent the fulfillment of the asham under any circumstances.
In summary: In this Mishnah, we learned that money given to the members of the mishmar cannot be reclaimed by the heirs, as it is stated, "And whatever a man gives to the kohen, it shall be his"; that there is no dependency between the mishmar receiving the money and the mishmar offering the asham; that the return of the stolen item must precede the offering of the asham; and that the chomesh does not prevent atonement, even though the obligation to give it remains in place.
With this we conclude the ninth chapter of Tractate Bava Kamma. The tenth and final chapter also continues to deal with the laws of robbery.