Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 22a

or if the Jordan¹  takes from one and gives to another, then what has been taken is taken, and what has been given is given.²  Now, this is obviously right as regards [things taken] by a robber or by the Jordan, because [the owner] sees them [when they are taken]³  and he gives up hope, but as regards a thief — does the owner see him [steal] so that [we could say that] he has given up hope?⁴  — Rab papa explained it as referring to armed bandits.⁵  But then it is the same as 'robbers'?⁶  — There are two kinds of robbers.

Come and hear: If a river has carried off someone's beams, timber, or stones, and has deposited them in a neighbour's field, they belong to the neighbour because the owner has given up hope.⁷  So the reason [why they belong to the neighbour] is that the owner has given up hope, but ordinarily they would not [belong to the neighbour]?⁸  Here we deal with a case where [the owner] is able to retrieve them.⁹  But if so, I must refer you to the last part [of the quoted teaching]: 'If the owner was running after them, [the neighbour] must return them': Now if it is a case where [the owner] is able to retrieve them, why state that he is running after them? [They should belong to him] even if he does not run after them! — We deal here with a case where the owner is able to retrieve [the property] with difficulty: If he runs after it [we conclude] that he has not given up the hope [of recovery]; if he does not run after it [we conclude] that he has given up the hope [of recovery].

Come and hear: In what circumstances has it been said that if one sets apart the heave-offering¹⁰  without the knowledge [of the owner] the offering is valid? If one goes down into a neighbour's field, collects [the produce] and sets apart the heave-offering, without permission, if [the owner objects to the action and] considers it robbery, the offering is not valid, but if not, it is valid. And how can one tell whether [the owner] considers it as robbery or not? If the owner, on arriving and finding the person [in the field], says to him: You should have gone and taken the better kind [of the produce for the heave-offering], the offering is valid if there is a better kind to be found [in the field], but if not, it is not valid. If the owner collected [more of the produce] and added it [to the offering] it is valid in any case.¹¹  Thus [we see that] if there is a better kind [in the field] the offering is valid. But [is this so?] surely at the time when the offering was set apart [the owner] did not know it?¹²  — Raba explained it according to Abaye: [The owner] made him [who set apart the offering] his agent.¹³  This is conclusive indeed. For if you were to assume that he did not make him his agent, how could the offering be valid? Did not the Divine Law¹⁴  [instead of] 'Ye', say, 'ye also',¹⁴  to include 'your agent', [as much as to say:] As you [set apart your offerings] with your own knowledge so must your agent [set apart your offerings] with your knowledge?¹⁵  Therefore we must deal here with a case where [the owner] made him his agent and said to him, 'Go and set apart the heave-offering,' but did not say to him, 'Set it apart from this kind,' and usually an owner sets apart the heave-offering from the medium kind, but that other person went and set it apart from a better kind, whereupon the owner arrived and, finding him [in the field], said to him, 'You should have gone and taken it from a [still] better kind.'[In such a case the law is that] if a better kind can be found [in the field] the offering is valid, but if not, it is not valid.

Amemar, Mar zutra. and R. Ashi once entered the orchard of Mari b. Isak [whereupon] his factor brought dates and pomegranates and offered them [to the visitors]: Amemar and R. Ashi ate them, but Mar Zutra did not eat them. Meanwhile Mari b. Isak arrived and he found them. He then said to his factor: Why did you not bring for the Rabbis some of those better kinds [of fruit]? Whereupon Amemar and R. Ashi said to Mar Zutra: Why does the Master not eat now? Has it not been taught: 'If better ones can be found, the offering is valid'?¹⁶  [Mar Zutra] answered them: Thus said Raba: 'You should have gone and taken better ones' has been declared to be a valid observation¹⁷  only in regard to a heave-offering, because it is [the fulfilment of] a divine command, and he really wishes [to offer better ones], but here he may have said it out of courtesy.¹⁸

Come and hear: 'If the dew is still upon them,¹⁹  and the owner is pleased,²⁰  then [the Scriptural term, If water] be put [upon the seed]²¹  applies to it.²²  If it turned dry,²³  then, even if [the owner] is pleased [that the dew came upon it at first,

1. Or any other river which carries away goods and lands them somewhere else.
2. The recipient has a right to keep the goods. Cf. B.K., 114a.
3. He sees them being carried off and he at once abandons them.
4. As the owner does not become aware of his loss when it occurs he cannot be said to have consciously abandoned hope.
5. Who commit open larceny, so that the owner becomes aware of his loss at once and abandons it.
6. Cf. B.K. 57a.
7. An event like the flooding of one's property soon becomes known, and the owner becomes aware of his loss and gives up hope. In the Tosef. Keth. VIII, the version is: 'They belong to the neighbour if the owner has given up hope,' so also R. Han. and Tosaf. a.l. (q.v.).
8. In regard to an ordinary loss, of which the owner is not likely to have become aware at once, it would not be said that it belongs to the finder. This would contradict the view of Raba.
9. So that ordinarily the owner never gives up hope and there is not even 'anticipated abandonment'. Thus there is no contradiction to Raba.
10. Cf. Num. XVIII, 8.
11. V. Kid. 52b.
12. It must therefore be concluded that 'anticipated knowledge' is as good as real knowledge. In the same way 'anticipated abandonment' should be deemed as valid as real abandonment, in contradiction to Abaye.
13. So that he can act for his owner at any time, and his action is always valid.
14. Num. XVIII, 28.
15. The agent must have the owner's mandate to act for him. Cf. infra 71b; Kid. 41b.
16. As the owner's suggestion to offer up better ones is taken as an expression of his consent to the agent's action in the case of the heave-offering, so here also Mari b. Isak's suggestion to his factor should be taken as an expression of his approval of the factor's action in offering the fruit to the Rabbis.
17. Implying an expression of consent on the part of the owner.
18. Lit., 'bashfulness'; and may not really be an expression of consent.
19. I.e., upon produce exposed to be dried, which by receiving moisture from water or other specified liquids (v. Mak. VI, 4) is rendered capable of becoming ritually unclean.
20. It is only when the owner of the produce is pleased with the process of wetting which the produce undergoes that the produce is by this process rendered capable of becoming ritually unclean.
21. Lev. XI, 38.
22. And it becomes capable of being rendered ritually unclean.
23. I.e., if at the time when the owner heard that the dew had come upon the produce it was dry again.

the term If water] be put [upon the seed] does not apply to it.'¹  Is not the reason [for this ruling] that we do not say, 'because it appears that he is pleased now it is as if he had been pleased originally'?²  — There it is different: It is written, 'If one puts',³  [which means] only when he puts [the water on].⁴  But if so, this should apply also to the first case?⁵  That [can be explained] according to R. Papa. For R. papa pointed out a contradiction: It is written, 'If one puts'. and we read, 'If it be put'⁶  — how is it to be explained? 'Being put must be like 'putting': As 'putting' can only be done with the knowledge [of him who puts] so 'being put' must happen with the' knowledge [of the person concerned].⁷

Come and hear: R. Johanan said in the name of R. Ishmael⁸  b. Jehozadak: Whence [do we learn] that an article lost through the flooding of a river may be retained [by the finder]? It is written, And so shalt thou do with his ass; and so shalt thou do with his garment; and so shalt thou do with every lost thing of thy brother's, which he hath lost, and thou hast found.⁹  [which means to say that only] if the object has been lost to him and may be found by any person [has it to be returned to him, and it follows that] a case like this¹⁰  is exempt [from the Biblical law],¹¹  since it is lost to him and cannot be found by any person. Moreover, the object which is forbidden [to be kept by the finder] is like the object which is permitted [to be kept by the finder]: Just as the permitted object¹²  may be kept irrespective of whether it has an identification mark or not, so the forbidden object¹³  may not be kept irrespective of whether it has an identification mark or not.¹⁴  [This is] a complete refutation of Raba. And the law is in accordance with Abaye in [the cases indicated by the initials] Y'AL KGM.¹⁵

R. Aha, the son of Raba, said to R. Ashi: Seeing that Raba has been refuted,¹⁶  how is it that we eat dates that have been shaken down [from the tree] by the wind?¹⁷  — [R. Ashi] answered him: [The owner] gives them up straight away because there are vermin and creeping creatures that eat them.¹⁸  [But what if they belong to] orphans who [are minors and] cannot legally renounce [their possessions]? — [R. Ashi] answered him: We do not assume that every piece of ground is the property of orphans.¹⁹  But what if it is known [to be the property of orphans]? Or if the tree is surrounded by a fence?²⁰  — [R. Ashi] answered him: Then they are forbidden.²¹

SMALL SHEAVES IN A PUBLIC THOROUGHFARE BELONG TO THE FINDER. Rabbah said: Even when they have an identification mark. Consequently [it must be assumed that] Rabbah is of the opinion that an identification mark which is liable to be trodden on²²  is not [deemed to be] an identification mark.²³  Raba said [on the other hand]: [The Mishnah] refers only to things which have no identification mark, but things which have an identification mark have to be announced.²⁴  Consequently [it must be assumed that] Raba is of the opinion that an identification mark that is liable to be trodden on is [deemed to be] an identification mark. Some teach this as an independent controversy.²⁵  In regard to an identification mark which is liable to be trodden on, Rabbah says that it is not [deemed to be] an identification mark, but Raba says that it is [deemed to be] an identification mark.

We have learnt: Small sheaves [which are found] in a public thoroughfare belong to the finder, [but if found] on private grounds²⁶  they have to be taken up and announced.²⁷  How is this to be understood? If [the sheaves] have no identification mark — what is there to be announced [if they are found] on private grounds? It must therefore be that they have an identification mark, and still it is stated that [if found] in a public thoroughfare they belong to the finder. Consequently [it must be assumed that] an identification mark which is liable to be trodden on is not [deemed to be] an identification mark, which is a refutation of Raba! — Raba may answer you: In reality they have no identification mark; and as to your question, 'What is there to be announced [if they were found] on private grounds?', [the answer is:] The place [where they were found] is announced.²⁸  But Rabbah says that the place is no identification mark. For it has been stated: [In regard to] the place — Rabbah says, it is not considered an identification mark, but Raba says, it is an identification mark.

Come and hear: Small sheaves [which are found] in a public thoroughfare belong to the finder, but [if found] on private grounds they have to be taken up and announced. Big sheaves, however, whether [they are found] in a public thoroughfare or [are found] on private grounds, have to be taken up and announced. How does Rabbah explain it,²⁹  and how does Raba explain it?³⁰  — Rabbah explains it according to his view: By the identification mark.³¹  Raba explains it according to his view: By the place.³²  Rabbah explains it according to his view — by the identification mark — [and the reason why] small sheaves [found] in a public thoroughfare belong to the finder [is] that

1. And the produce is not deemed capable of being rendered ritually unclean (Tosef. Mak. III).
2. The feeling of pleasure is not deemed to have a retrospective effect. In the same way we ought to say that 'anticipated abandonment' has no retrospective effect, which would contradict the view of Raba.
3. Lev. ibid.
4. The spelling is [H] without a [H] after the [H], which may be read [H] 'he puts'. It is only the vowels that turn it into the passive [H] 'it is put'.
5. Where the owner becomes aware of the dew having come upon the produce while moisture is still there.
6. V. p. 138. n. 12.
7. And if the knowledge that dew descended upon the produce comes after the event, the produce is rendered capable of becoming ritually unclean if the owner is pleased with the event, provided the produce is still moist.
8. Other versions have Simeon instead of Ishmael. Cf. infra 27a, where the version is 'Simeon b. Yohai'.
9. Deut. XXII, 3.
10. When the flooded river has carried off a person's goods.
11. Regarding the restoration of lost property.
12. Such as an article which has been carried off by a stream and cannot be retrieved by everybody.
13. I.e., the object which has been lost in the ordinary way and may be found by anybody.
14. If there is reason to believe that the owner was not aware of his loss at the time when it was lost, though on becoming aware he would abandon hope of its return.
15. Cf. Sanh. (Sonc. ed.) p. 159, n. 3.
16. And 'anticipated abandonment' is not deemed effective.
17. Seeing that at the time when the dates are shaken down the owner is unaware of his loss and does not consciously give it up.
18. The owner knows that some of the dates fall off the tree, and he gives them up in advance because vermin usually get at them and eat them.
19. As the majority of the fields or gardens do not belong to orphans we do not reckon with the possibility of orphan ownership.
20. Guarding it against ravage by vermin and creeping creatures.
21. In such cases the finder is not allowed to keep the fruit.
22. When the lost article is small and lies in a place where there is traffic, it is likely to be trodden on, so that the identification mark may disappear.
23. The owner does not depend on the mark in such a case, and he gives up the article as soon as it is lost.
24. And if the owner identifies them by the mark, he receives them back.
25. I.e., not in connection with our Mishnah.
26. As in a sown field which few people frequent.
27. [Read with MS.M.: 'they have to be announced', this passage being, as the term [H] indicates, a composite of our Mishnah and the next Mishnah, 25a.]
28. The owner then identifies the lost goods by indicating the place where he lost them.
29. In what respect do big sheaves differ from small sheaves as regards being trodden on?
30. In what respect do small sheaves differ from big sheaves as regards the absence of an identification mark?
31. Which is retained in big sheaves but is lost in small sheaves.
32. Big sheaves remain in the same place, but not small sheaves.