Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 8a

as it would [still] be suitable for children. But what of the case of Raba, who said that [even] if the garment was embroidered with gold it should be divided?¹  Could they here also divide [the garment] in halves? They would surely render it useless! — This presents no difficulty [either], as it would still be suitable for royal children.²  But [there is] the clause in our Mishnah: IF TWO RIDE ON AN ANIMAL [etc.]. Would you say that here also they divide [the animal] in halves? They would surely render it useless! Although it may be granted that in the case of a clean animal [its carcase] may be [cut up and] used for food — what if it is an unclean animal? They would surely render it useless [by slaying it and cutting it up]? It must therefore be said that it is the value [of the animal] that is divided. So here also: it is the value [of the bill that is divided].

Rami b. Hama said: This [decision of our Mishnah] enables [us] to conclude that when one picks up a found object for his neighbour, the neighbour acquires it.³  For if you were to say that the neighbour does not acquire it, this [garment] ought to be regarded as if one half of it were [still] lying on the ground, and [also] as if the other [half] were [still] lying on the ground, so that neither the one [claimant] nor the other should acquire it.⁴  It must therefore follow that when one picks up a found object for his neighbour, the neighbour acquires it.⁵  Said Raba: I could still maintain that when one picks up a found object for his neighbour, the neighbour does not acquire it.⁶  But here [in our Mishnah] the reason [why he does acquire it] is that we say, 'Since he takes possession for himself he may also take possession for his neighbour.'⁷  You may learn it from [the law] that if one said to a messenger, Go and steal something for me', and he [went and] stole it, he is free,⁸  but if partners stole [for each other]⁹  they are guilty. For what reason? Is it not because we say, 'Since he takes possession for himself, he may also take possession for his neighbour'? This proves it!

Said Raba: Now that it has been proved that we base our decisions on the Since argument.¹⁰  [it must be assumed that] when a deaf-mute¹¹  and a normal person have picked up a found object, the normal person acquires it by reason of the fact that the deaf-mute has acquired it. [But it is at once objected:] We may grant that the deaf-mute acquires it because a rational person has lifted it up for him,¹²  but how does the normal person acquire it? — I must therefore say: The deaf-mute acquires it; the normal person does not acquire it.¹³  And how does the Since [argument] come in here?¹⁴  — Since two other deaf-mute persons would acquire [a found object by lifting it up], this [deaf-mute] also acquires it.¹⁵  But how is this? Even if you say that when one lifts up a found object for his neighbour the neighbour acquires it, this is [true] only when one lifts it up on behalf of his neighbour. But [in this case] that [normal person] lifted it up on his own behalf; now, if he himself does not acquire it,¹⁶  how can he enable others to acquire it? — But say: Seeing that the normal person does not acquire it, the deaf-mute does not acquire it [either]. And if you will argue: In what way does this case differ from that of the two other deaf-mute persons [previously referred to, I will answer you:] There our Rabbis made this provision¹⁷  in order that [the deaf-mutes] may not have to quarrel [with persons who may be ready to snatch the object from them], but here [the deaf-mute] will say [to himself]: 'The normal person does not acquire it, how should I acquire it?'¹⁸

R. Aha, the son of R. Adda, said to R. Ashi: Whence does Rami b. Hama derive his conclusion?¹⁹  If we say [that he derives it] from the first clause [of our Mishnah]. TWO HOLD A GARMENT etc., [the objection would arise that] there one pleads [to the effect]. 'It is all mine, and I lifted up the whole of it,' and the other pleads [to the same effect], 'It is all mine and I lifted up the whole of it!'²⁰  — Therefore [we must say that he derives it] from the clause which reads: ONE OF THEM SAYS IT IS ALL MINE,' AND THE OTHER SAYS, 'IT IS ALL MINE': what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires It — 21 But did we not come to the conclusion that the first clause deals with a case of finding, and that the subsequent clause deals with a case of buying and selling? — We must therefore say that [he derives it] from the second part [of the Mishnah]: IF ONE SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS 'HALF OF IT IS MINE': what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires it. And how do you know that this clause deals with a case of finding? Maybe it deals with a case of buying and selling? And if you will say: If it deals with a case of buying and selling what need is there [for the case] to be stated? [I will answer:] There is a need. For I might have formed the opinion that the one who says, HALF OF IT IS MINE should be considered as the restorer of a lost object,²²  and should be free [from taking an oath]. We are thus informed that [he has to swear, as] he may be employing a ruse, in that he might think: If I say 'It is all mine,' I shall have to swear; I will say thus,²³  so that I shall be like a restorer of a lost object, and I shall be free [from taking an oath]. Therefore [we must say that he derives it] from this clause: IF TWO RIDE ON AN ANIMAL etc.: what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires it. But perhaps [this clause] is to let us know that a rider also acquires [found property]?²⁴  Therefore [we must say that he derives it] from the last clause: IF BOTH ADMIT [EACH OTHER'S CLAIMS], OR IF THEY HAVE WITNESSES [TO ESTABLISH THEIR CLAIMS], THEY RECEIVE THEIR SHARES WITHOUT AN OATH. To which case does it refer? If it refers to [a case of] buying and selling — is it necessary to state it?²⁵  It must therefore refer to [a case of] finding.²⁶  and this proves that if one lifts up a found object for his neighbour, the neighbour acquires it. And Raba?²⁷  — He will explain [the decision in the last clause of our Mishnah] by the principle [adopted by him]: Since he takes possession of it for himself, he may take possession of it also for his neighbour.²⁸

IF TWO RIDE [etc.]. R. Joseph said: Rab Judah told me,

1. Supra 7a.
2. Although a gold-embroidered garment when reduced in size by division could not be worn by ordinary children, it would still retain its value, as it could be worn by children of the aristocracy, to whom the wearing of a gold-embroidered garment would be nothing unusual.
3. The decision that if two people have picked up an ownerless object they are entitled to keep it, each one taking half of its value and enabling his partner to claim the other half, must rest on the assumption that one may acquire an object for someone else by lifting up, i.e., by the same means as one acquires it for himself.
4. From the point of view of each claimant the other person's half would have to be regarded as if it were still lying on the ground. But such an acquisition does not constitute legal possession because the law demands that we must acquire possession of the whole article in order to obtain title thereto. Consequently if a third person came and snatched the garment, neither of the two could dispute his right to claim at least half. V. infra p. 39 for further elucidation of the argument.
5. And it is assumed that in our Mishnah each person, when picking up the garment, intended that the other person should have half of it, and in this way the two acquired the garment.
6. V. infra 10a.
7. Although one cannot acquire a found object entirely for his neighbour, one can acquire part of it for a neighbour if one acquires part of it for himself.
8. From the penalty of making double restitution, as the responsibility for the wrong done rests upon the one that does it, not upon the instigator.
9. V. B. K. 78b.
10. Heb. Miggo, [H]; v. Glos. 'Since he acquires it for himself he may also acquire it for his neighbour' is the argument used in the previous paragraph.
11. A deaf-mute is not a responsible person, and, like a minor and an imbecile, he cannot acquire property, but 'for practical reasons' the Rabbis laid it down that to deprive them of anything they possess is robbery (cf. Git. 59b). Applying the Miggo argument to the deaf-mute, Raba holds that 'Since he acquires it (according to rabbinic ruling) for himself, he also acquires it for his neighbour'.
12. The end which the normal person has picked up for himself and for the deaf-mute has been rightly acquired, so far as the deaf-mute is concerned, for the latter benefits by the right of the rational person to acquire the garment and by his own right, conceded to him by the Rabbis, to claim his own possessions 'for practical reasons'. But the normal person suffers from the disability of the deaf-mute, in so far as the right conceded to the deaf-mute to own property extends only to his own person, and does not include the right to acquire property for someone else. Therefore the end which the deaf-mute has picked up, when considered in relation to the normal person, must be regarded as if it had not been picked up at all. Thus the question arises: How does the normal person acquire the garment?
13. The Miggo argument employed by Raba would therefore apply to the deaf-mute himself.
14. It would be impossible to argue that since the normal person acquires it for himself he also acquires it for the deaf-mute, as the normal person does not acquire it at all.
15. The Miggo argument would thus be derived from another case, not hitherto considered.
16. For the reason explained in note 2.
17. The claim of the two deaf-mutes is granted only because of a provision of the Rabbis 'for practical reasons' but is not based on law.
18. It would not be proper to make a concession to the deaf-mute which could exceed the right of a normal person.
19. From which clause of our Mishnah does Rami b. Hama derive the conclusion that if one lifts up a found object for his neighbour, the neighbour acquires it.
20. [A paraphrase of 'I FOUND IT'.] Each of the two claimants maintains that he lifted up the whole garment for himself and thus acquired it all, so that none of them can be said to have lifted up part of the garment for his neighbour and acquired it for him. The two claimants share the garment between them, not because one acquired it for the other, but because they both hold the garment and no third person can claim any part of it.
21. The additional plea, which seems to be a mere repetition of what is conveyed by the first plea of 'I FOUND IT', is really intended to indicate that in a case where both claimants lifted up the garment with the intention of acquiring it for each other, they do acquire it, and this is why the garment is divided between them. The two clauses therefore differ from each other in that, in the second clause, it is assumed that both claimants really picked up the garment, and thus one acquired it for the other, while in the final clause the garment is divided between the two claimants because we do not know who tells the truth, and the oath is given for the reason stated in a previous discussion (2b-3a).
22. As he could have pleaded 'It is all mine' and he would have been entitled to half the garment.
23. I.e. 'Half of it is mine'.
24. That one may take possession of an animal by riding on it.
25. If the two claimants admit having bought the garment simultaneously, it stands to reason that they should be awarded equal shares without having to swear.
26. And it is necessary to state the law, in order to let us know that both have acquired the garment, and no one has a right to snatch it away from them, on the principle that 'if one lifts up a found object for his neighbour, the neighbour acquires it.'
27. Since he does not admit the above-mentioned principle, how does he explain the last clause of our Mishnah?
28. Although Raba denies that one may acquire an ownerless object for a neighbour by lifting it up for him, he admits that when one lifts up an object for himself and his neighbour, the neighbour also acquires it, as explained above, and the last clause of our Mishnah is needed in order to establish this law.

'I heard two [laws] from Mar Samuel: If one rides [on an animal] and another leads [it], one of them acquires [the animal], and the other does not acquire it,¹  but I do not know [to] which of the two [either decision was meant to apply].' But how is this to be understood?²  If it refers to [two cases, in one of which there was] a man riding [on an animal] by himself and [in the other] there was a man leading [an animal] by himself³  — is there anyone who would say that he who leads an animal by himself does not acquire it?⁴  If, therefore, it is to be said that one does not acquire [the animal], it can only be said of the one that rides on it!⁵  — Thus [it must be assumed that] the doubt [expressed] by Rab Judah concerns a case where one rides on an animal, and simultaneously someone else leads it.⁶  The question then is: Is the rider to be given prefer — ence because he holds it,⁷  or is perhaps the leader to be given preference because it moves through his action?⁸  R. Joseph [then] said: Rab Judah said to me, Let us look [into the matter] ourselves.⁹  For we learnt: He who leads [a team composed of an ox an and ass]¹⁰  receives forty lashes,¹¹  and [likewise] he who sits in the waggon [drawn by such a team] receives forty lashes. R. Meir declares him who sits in the waggon free.¹²  And since Samuel reverses [the Mishnah] and reads: 'And the Sages declare him who sits in the waggon free'¹³  it follows that [according to Samuel] he who rides [on an animal] by himself does not acquire it, and this would apply with even greater force to one who rides on an animal while someone else leads it!

Said Abaye to R. Joseph: Have you not told us many times [the argument headed by the words]: 'Let us look [into the matter],' and yet you never told us it in the name of Rab Judah?¹⁴  [R. Joseph] answered him: Truly, [it is Rab Judah's argument]: I even remember saying to him, 'How can you, Sir, derive the decision regarding [the case of] One who rides [on an animal] from [the case of] one who sits [in the waggon], seeing that he who sits [in the waggon] does not hold the reins, while he who rides [on the animal] does hold the reins?' And he answered me: 'Both Rab and Samuel agree that one does not acquire [an animal] by holding the reins.'¹⁵

Some give another version:¹⁶  Abaye said to R. Joseph: How do you, Sir, derive the law regarding one who rides [on an animal] from that concerning one who sits [in a waggon pulled by an animal], [seeing that] he who sits [in the waggon] does not hold the reins, [while] he who rides does hold the reins? — [R. Joseph] answered him: Thus Idi learned: One does not acquire [an animal] by holding its reins. It has also been reported: R. Helbo said in the name of R. Huna: One [who buys an animal] may acquire it by taking over the reins from the neighbour [who sells it], but one who finds [an animal] and [one who seizes an animal which was] the property of a proselyte [who died without heirs]¹⁷  does not acquire it [in this way]. What is the derivation of the term 'Mosirah' [used for reins]? — Raba said: Idi explained it to me: [It is derived from 'masar', to hand over, and it indicates] the handing over of the reins by one person to another. [Such action] rightly [enables a person who buys an animal] from his neighbour to acquire it, as the neighbour transfers to him in this way [the possession of the animal]. But in the case of a found [animal] and [in that of an animal that was] the property of a proselyte [who died without heirs] — who transferred it to him that he should have a right to acquire it?

An objection was raised: IF TWO RIDE ON AN ANIMAL etc. — whose opinion is that? If I should say that it is R. Meir's,¹⁸  [the question presents itself:] If the 'sitter' acquires it, need I be told that the 'rider' acquires it? It must therefore be [said that it is the opinion of the majority of] the Rabbis¹⁹  — which would prove that the 'rider' acquires it?²⁰  — Here we deal with one who drives [the animal] with his feet.²¹  But if so, then it is the same as 'leading'.²²  There are two ways of 'leading':²³  you might say that the 'rider' has a preference, because he drives it and holds it [at the same time], therefore we are informed [that leading is the same as riding].

Come and hear: If two persons were pulling a camel or leading an ass, or if one was pulling and one was leading,

1. Rab Judah remembered that Mar Samuel had stated the two cases, and had given his decision regarding each case, but he did not remember what Samuel's decision was in each case.
2. The question is at once asked how such a doubt could have arisen in R. Joseph's mind.
3. If Samuel gave his decisions regarding two separate cases, in one of which a man claimed to have acquired an animal by riding on it, and in the other a man claimed to have acquired an animal by leading (or pulling) it, and in each case another person came along and pulled the animal away in order to acquire it for himself, the expression of doubt by Rab Judah as to which of the two cases either decision was meant to apply to, would accordingly have implied that he was not certain whether leading (or pulling) an animal is a legitimate way of acquiring it.
4. Rab Judah could not have been in doubt on this point, as all are agreed that leading (or pulling) an animal is the legitimate way of acquiring it. Cf. Kid. 22b.
5. Riding on an animal may just mean sitting on it without making it move, in which case it may not be a legitimate way of taking possession of it. Cf. Kid. ibid.
6. And both claim the animal.
7. And although pulling is the recognised way of taking possession of an animal, this may only be so when there is no one riding on it.
8. And causing the animal to move is the correct method of acquiring it.
9. Rab Judah thought that it would be possible to reconstruct Samuel's decision from the view expressed by Samuel in the following passage.
10. And thus transgresses the Biblical prohibition of Deut. XXII, 9-11.
11. Really 39 lashes — the penalty inflicted upon one who deliberately transgresses a Biblical prohibition. Cf. Deut. XXV, 3, and Mak. 13 and 22.
12. As he is not guilty of any action in regard to the driving of the animals, v. Kil. VIII, 3.
13. As the decision of the majority of the Sages must be accepted, Samuel ascribes the decision which he favours, viz., that sitting in the waggon is of no consequence, to the anonymous Sages, not to R. Meir. Riding an animal (without moving it) would be the same as sitting in the waggon attached to the animal (without driving it).
14. R. Joseph spoke as if he himself had advanced the argument that removed the doubt regarding Samuel's decision.
15. I.e., in the case of a found animal. It is only by pulling the animal and causing it to move (even if it only moves one fore-leg and one hind-leg) that the finder can take possession of the animal. It is different with a bought animal. Cf. Kid., 22b and 25b.
16. Of the argument advanced by R. Joseph, of Abaye's reply, and of R. Joseph's rejoinder. According to this version R. Joseph did not speak in the name of Rab Judah when he said, 'Let us look into the matter,' etc., but gave his own view, which Abaye challenged.
17. The property of a proselyte who dies without jewish issue is regarded in Jewish law as ownerless, which anyone may acquire.
18. Who is of the opinion that even a person that sits in a waggon drawn by an ox and an ass has committed an offence, and who would thus regard 'sitting' as a legitimate way of acquiring an animal. The Mishnah would thus express the view of our Tanna only, and, as a minority decision, it would not be accepted.
19. Who attach no importance to 'sitting' but who nevertheless attach importance to 'riding', and they let us know in the Mishnah that 'riding' is a legitimate way of acquiring an animal.
20. Then how could Rab Judah derive a decision regarding the validity of 'riding' from the decision regarding 'sitting'?
21. He spurs it on with his feet and makes it move, so that apart from 'riding' there is the recognised method of acquiring an animal by making it move.
22. Then why does the Mishnah say: 'or one rides, and the other leads it'? As this distinction would have no significance, why not say 'or if both lead it'?
23. Although 'riding' is a form of 'leading' it was necessary to say 'or one rides, and the other leads it' and thus to indicate that the two actions are equally good, as otherwise one might regard 'riding' as more important and award the animal to him who claims to have acquired it by riding on it.