We ask the witnesses whether [the debt] is paid or not.1
Come and hear: A note of cancellation which bears the signatures of witnesses is valid?2 - The witnesses referred to are witnesses to the endorsement [of the note by the Court].3 This is also conclusive, for the final clause teaches: 'But if it does not bear the signatures of witnesses it is invalid.' Now, what is the meaning of [the words], 'It does not bear the signatures of witnesses'? If I should say that [it means that] there are no signatures of witnesses on it at all - is it necessary to say that is invalid? Therefore we must assume that they are witnesses to the endorsement [of the note by the Court].
The main text [states]: 'A note of cancellation which bears the signatures of witnesses must be corroborated by the signatories.'4 But if it does not bear the signatures of witnesses5 and is produced by a third person,6 or if it is found below the signatures of the notes [of indebtedness],7 it is valid.' If it is produced by a third person [it is valid] because the lender trusted the third person;8 if it is found below the signatures of the notes [of indebtedness it is] also [valid], because if [the debt] had not been paid he [the lender] would not have invalidated the note.
MISHNAH. SOME FINDS BELONG TO THE FINDER; OTHERS MUST BE ANNOUNCED.9 THE FOLLOWING ARTICLES BELONG TO THE FINDER: IF ONE FINDS SCATTERED FRUIT, SCATTERED MONEY,10 SMALL SHEAVES IN A PUBLIC THOROUGHFARE,11 ROUND CAKES OF PRESSED FIGS, A BAKER'S LOAVES,12 STRINGS OF FISHES, PIECES OF MEAT, FLEECES OF WOOL WHICH HAVE BEEN BROUGHT FROM THE COUNTRY,13 BUNDLES OF FLAX AND STRIPES OF PURPLE,14 COLOURED WOOL; ALL THESE BELONG TO THE FINDER.15 THIS IS THE VIEW OF R. MEIR.16 R. JUDAH SAYS: WHATSOEVER HAS IN IT SOMETHING UNUSUAL MUST BE ANNOUNCED,17 AS, FOR INSTANCE, IF ONE FINDS A ROUND [OF FIGS] CONTAINING A POTSHERD, OR A LOAF CONTAINING MONEY. R. SIMEON B. ELEAZAR SAYS: NEW MERCHANDISE18 NEED NOT BE ANNOUNCED.
GEMARA. IF ONE FINDS SCATTERED FRUIT, etc. What quantity [of fruit in a given space] is meant? R. Isaac said: A kab19 within four cubits. But what kind of a case is meant? If [the fruit appears to have been] dropped accidentally, then even if there is more than a kab [it should] also [belong to the finder].20 And if it appears to have been [deliberately] put down, then even if there is a smaller quantity it should not [belong to the finder]?21 - R. 'Ukba b. Hama answered: We deal here with [the remains of] what has been gathered on the threshing floor:22 [To collect] a kab [scattered over a space] of four cubits is troublesome, and, as people do not trouble to come back and collect it, [the owner also] abandons it, but if it is [spread over] a smaller space [the owner] does come back and collect it, and he does not abandon it. R. Jeremiah enquired: How is it [if one finds] half a kab [scattered over the space] of two cubits? Is the reason why a kab within four cubits [belongs to the finder] that it is troublesome [to collect], and therefore half a kab within two cubits, which is not troublesome to collect, is not abandoned [and should not belong to the finder], or is the reason [in the case of a kab within four cubits] that it is not worth the trouble of collecting [when spread over such a space], and therefore half a kab within two cubits, which is still less worth the trouble of collecting, is abandoned [and should belong to the finder]? [Again,] how is it [if one finds] two kabs [scattered over the space] of eight cubits? Is the reason why a kab within four cubits [belongs to the finder] that it is troublesome to collect, and therefore two kabs within eight cubits, which are still more troublesome to collect, are even more readily abandoned [and should certainly belong to the finder], or is the reason [in the case of a kab within four cubits] that it is not worth the trouble [of collecting], and therefore two kabs within eight cubits, which are worth the trouble [of collecting] are not abandoned [and should not belong to the finder]? [Again,] how is it [if one finds] a kab of poppy-seed [scattered over a space] of four cubits? Is the reason why a kab [of fruit] within four cubits [belongs to the finder] that it is not worth the trouble [of collecting], and therefore poppy-seed, which is worth the trouble [of collecting] is not abandoned [and should not belong to the finder], or is the reason [in the case of a kab within four cubits] that it is troublesome [to collect], and therefore poppy-seed, which is even more troublesome [to collect], is abandoned [and should belong to the finder]? [Again], how is it [if one finds] a kab of dates within four cubits, or a kab of pomegranates within four cubits? Is the reason why a kab [of ordinary fruit] within four cubits [belongs to the finder] that it is not worth the trouble of collecting, and therefore a kab of dates within four cubits, or a kab of pomegranates within four cubits, which also is not worth the trouble [of collecting] is abandoned [and should belong to the finder], or is the reason [in the case of a kab within four cubits] that it is troublesome to collect, and therefore a kab of dates within four cubits or a kab of pomegranates within four cubits, which are not troublesome [to collect], are not abandoned [and should not belong to the finder]? - The questions remain unanswered.
It has been stated:
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(1) Thus there is no contradiction to the previous teaching. It is only if the witnesses testify that they saw the debt being paid that the lender is not believed, and the note is valid. Otherwise we believe the lender, and the note is invalid.
(2) Even if it is in the possession of the lender.
(3) They are not witnesses who signed the receipt, but witnesses who testify that it was endorsed by the Court, and as the Court would not endorse the receipt unless the debt has been paid, the receipt is valid even if produced by the lender.
(4) And it is valid, even if produced by the lender, as the witnesses testify that it has been endorsed by the Court.
(5) I.e., witnesses to the endorsement.
(6) Neither the lender nor the borrower produces it, but a third person, with whom the notes were deposited, and his statement is accepted.
(7) The cancellation is written on the note of indebtedness below the signatures.
(8) As the lender writes the notes of cancellation he must have handed the note to the third person and placed his trust in him. The third person is therefore believed.
(9) So that the owner may claim them.
(10) Which cannot be identified by the loser and are thus given up by him as beyond recovery. The fact of the loser resigning himself to his loss (יאוש) renders the article public property and gives the finder the right to acquire it.
(11) Where the traffic soon destroys any distinguishing mark by which the sheaves might be identified.
(12) Which are uniform in appearance and cannot be identified.
(13) In a raw state, and bear no mark by which they could be identified.
(14) Long strips of wool dyed purple, a common article in the days of the Mishnah.
(15) The person who finds these articles need not announce them because they bear no marks by which the loser could identify them, and he has a right to keep them because the owner has given up the hope of recovering them.
(16) [Var. lec. omit, 'This is . . . R. Meir;' v. also infra p. 143. n. 1.]
(17) v. infra 23a.
(18) V. infra 23b.
(19) A measure. V. Glos.
(20) As the loser would have no means of identifying them.
(21) As the owner evidently intended to come back for them and has not really lost them.
(22) After the harvest.Anticipated abandonment [of the hope of recovering a lost article]1 is, Abaye maintains,no abandonment,2 but Raba maintains, it is an abandonment.3 [If the lost article is] a thing which has an identification mark, all agree that [the anticipation of its abandonment by the owner] is no abandonment, and even if in the end4 we hear him [express regret at his loss in a way that makes it clear] that he has abandoned it, it is not [deemed to be an] abandonment, for when [the finder] took possession5 of it he had no right to it6 because [it is assumed that] when [the loser] becomes aware that he lost it he will not give up the hope [of recovering it] but says [to himself], 'I can recognise it by an identification mark; I shall indicate the identification mark and shall take it back.' [If the lost article is found] in the intertidal space of the seashore or on ground that is flooded by a river, then, even if it has an identification mark, the Divine Law permits [the finder to acquire it], as we shall explain further on.7 They differ only where the article has no identification mark. Abaye says: It is no abandonment because [the loser] did not know that he lost it;8 Raba says: It is an abandonment, because when he becomes aware that he lost it he gives up the hope [of recovering it] as he says [to himself], 'I cannot recognise it by an identification mark,' it is therefore as if he had given up hope from the moment [he lost it].9
(Mnemonic: PMGSH MMKGTY KKS'Z.)10 Come and hear: SCATTERED FRUIT11 - [is not this a case where the loser] did not know that he lost it? - R. 'Ukba b. Hama has already explained that we deal here with [the remains of] what has been gathered on the threshing floor, so that [the owner] is aware of his loss.
Come and hear: SCATTERED MONEY, [etc.] BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost it? - There also it is even as R. Isaac said: A man usually feels for his purse at frequent intervals.12 So here, too, [we say,] 'A man usually feels for his purse at frequent intervals' [and soon discovers his loss].
Come and hear: ROUND CAKES OF PRESSED FIGS, A BAKER'S LOAVES, [etc.] BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost it? - There also he becomes aware of his loss, because [the lost articles] are heavy.
Come and hear: STRIPES OF PURPLE [etc.] - THEY BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost them? - There also [he becomes aware of his loss] because the articles are valuable, and he frequently feels for them, even as R. Isaac said.
Come and hear: If one finds money in a Synagogue or in a house of study, or in any other place where many people congregate, it belongs to him, because the owner has given up the hope of recovering it. [Is not this a case where the loser] did not know that he lost it? - R. Isaac answered: people usually feel for their purse at frequent intervals.
Come and hear: From what time are people allowed to appropriate the gleanings [of a reaped field]?13 After the 'gropers' have gone through it.14 Whereupon we asked: What is meant by the 'gropers'? and R. Johanan answered: Old people who walk leaning on a stick,15 while Resh Lakish answered: The last in the succession of gleaners.16 Now why should this be so? Granted that the local poor give up hope [of finding any gleanings].17 there are poor people in other places who do not give up hope?18 - I will say: Seeing that there are local poor, those [in other places] give up hope straight away, as they say. 'The poor of that place have already gleaned it.'19
Come and hear: Cut figs [found] on the road, even if [found] beside a field [covered with] cut figs.20 and also figs found under a fig-tree that overhangs the road, may be appropriated [by the finder] without him being guilty of robbery, and they are free from tithing,21 but olives and carob-beans are forbidden.22 Now, the first part [of the Mishnah] implies no contradiction to Abaye23 because [cut figs], being valuable, are under constant observation;24 [whole] figs also are known to drop.25 But the last part [of the Mishnah]. which teaches that olives and carob-beans are forbidden, implies a contradiction to Raba!26 - R. Abbahu answered: Olives are different [from other fruit] because one can recognise them by their appearance, and although olives drop [to the ground] the place of each one is known.27 But if so, the same should apply to [whole figs in] the first part [of the Mishnah]?28 - R. papa answered: Figs become filthy when they [drop to the ground].29
Come and hear: If a thief takes from one and gives to another, or if a robber takes from one and gives to another,
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(1) Lit., 'unconscious abandonment.' I.e., if an article is found before the loser has become aware of his loss, and the circumstances are such that the loser would have abandoned the hope of recovering the article had he known that he lost it.
(2) And the finder has no right to keep the article.
(3) And the article belongs to the finder.
(4) After the article came into the hands of the finder.
(5) Before the owner has been heard to despair of it.
(6) As the article can be identified the finder cannot legally acquire it.
(7) Infra 22b.
(8) He could not therefore consciously have given up the hope of recovering it.
(9) The 'abandonment' is deemed to have a retrospective effect, and this entitles the finder to acquire the article.
(10) Mnemonic consisting of Hebrew initials of the teachings that follow.
(11) Quotation from our Mishnah.
(12) B.K. 118b. So that he is bound to miss the money very shortly after he has lost it.
(13) Which belong to the poor. V. Lev. XIX, 9.
(14) Pe'ah VIII, 1.
(15) Who walk slowly and examine the ground carefully while looking for the gleanings, and are not likely to miss a single ear of corn.
(16) So that no other poor can hope to find any more gleanings.
(17) As the local poor see the aged and feeble, or the successive groups, glean in the field, they come to the conclusion that there would be nothing more left to glean, and they 'give up hope'.
(18) The poor who live at a distance cannot be said to give up hope consciously as they do not see the local gleaners. It must therefore be assumed that the reason why people who are not poor are allowed to appropriate the gleanings which have escaped the attention of the local poor is that the distant poor will give up hope when they will have learned how thoroughly the field has been gleaned by the local poor. This would prove that 'anticipated abandonment' is valid - in contradiction to the view of Abaye.
(19) Thus the 'abandonment' is not 'anticipated' but real at the time when the people come and appropriate what is left of the gleanings, and there is contradiction to the view of Abaye.
(20) I.e., beside a field on which cut figs have been spread out to dry, and it is obvious that the figs on the adjoining road belong to the same owner.
(21) They are treated as ownerless goods which need not be tithed, for although the owner may not have known of the loss, he will abandon hope when he gets to know.
(22) Ma'as. III, 4.
(23) Who says that 'anticipated abandonment' is not valid.
(24) And the owner discovers his loss as soon as it occurs and abandons it.
(25) [And the owners in the absence of an identification mark give up the hope of recovering them (Tosaf.).]
(26) The owners are not deemed to have given up the hope of recovering them, as olives and carob-beans do not usually drop, and the owner is not aware of his loss. And although the owner is bound to discover his loss later, and will then 'give up hope,' it is only 'anticipated abandonment' at the time when the lost goods are found and appropriated. Thus 'anticipated abandonment' is not valid - in contradiction to the view of Raba.
(27) I.e., it is known to whom they belong. The owner therefore feels sure that he will recover them, and there is not even 'anticipated abandonment'. There is thus no contradiction to Raba.
(28) As olives can also be identified by their colour and shape.
(29) This is why the owner abandons them at once and they become public property. According to another version the translation would be, 'Figs change colour when they drop, (and cannot therefore be identified).'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,
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(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
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(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 יתן without a ו after the י, which may be read יתן 'he puts'. It is only the vowels that turn it into the passive יתן '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 תנן 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.they are trodden on,1 while on private grounds [the finder] has to take them up and announce them because there they are not trodden on. Big sheaves, however, whether [they are found] in a public thoroughfare or on private grounds, [the finder] has to take up and announce because, being raised, one does not tread on them. Raba, again, explains it according to his view - by the place - [and the reason why] small sheaves [found] in a public thoroughfare belong to the finder [is] that they are pushed along,2 while on private grounds [the finder] has to announce them because they are not pushed along.3 Big sheaves, however, whether [they are found] in a public thoroughfare or on private grounds, [the finder] has to take up and announce because being many they are not pushed along.
Come and hear: A BAKER'S LOAVES, [etc.] BELONG TO THE FINDER - but 'home-made loaves have to be announced,'4 now what is the reason in the case of home-made loaves, obviously that they have an identification mark and one can tell that the bread belongs to this person or that person, and, no matter whether [they are found] in a public thoroughfare or on private grounds, [the finder] has to take them up and announce them. It therefore follows that an identification mark which is likely to be trodden on is a valid mark, - which is a refutation of Rabbah! - Rabbah will answer you: There5 the reason is that one may not pass by eatables.6 - But there are heathens?7 Heathens [do not pass by eatables because they] are afraid of witchcraft.8 But are there not cattle and dogs? - [The Mishnah speaks] of places where cattle and dogs are not frequent.
Are we to maintain that this [difference of opinion between Rabbah and Raba is the same] as [the following difference between] the Tannaim [of our Mishnah]: R. JUDAH SAYS: WHATSOEVER HAS IN IT SOMETHING UNUSUAL MUST BE ANNOUNCED, AS, FOR INSTANCE, IF ONE FINDS A ROUND [OF FIGS] CONTAINING A POTSHERD, OR A LOAF CONTAINING MONEY. This implies that the first Tanna [of the Mishnah] holds that these articles belong to the finder [in spite of their unusual feature].9 Now the prevalent opinion was then that all would agree that an identification mark which might have come of itself10 was a valid mark,11 and that one might pass by eatables.12 It must therefore be assumed that [the Tannaim] differ regarding an identification mark which is likely to be trodden on: One holds that it is not a valid mark, and the other holds that it is a valid mark!13 - R. Zebid replied in the name of Raba: If you assume that the first Tanna [of the Mishnah] is of the opinion that an identification mark which is likely to be trodden on is not a valid mark, and that one may pass by eatables, why should one have to announce [the finding of] home-made loaves? Therefore R. Zebid said in the name of Raba that all are of the opinion that an identification mark which is likely to be trodden on is a valid mark,14 and that one may pass by eatables. but here [in our Mishnah the Tannaim] differ regarding an identification mark which may have, come of itself,15 the first Tanna being of the opinion that a distinguishing mark which may have come of itself is not a valid mark, and R. Judah being of the opinion that it is a valid mark. Rabbah [on the other hand] will tell you that all agree that an identification mark which is likely to be trodden on is not a valid mark, and that one may not pass by eatables,16 but that [the Tannaim] differ here regarding a mark which may have come of itself,17 the first Tanna being of the opinion that it is not a valid mark, and R. Judah being of the opinion that it is a valid mark.
Some have another version:18 The prevalent opinion was then that all would agree that an identification mark which might have come of itself was a valid mark, while an identification mark which was likely to be trodden on was not a valid mark. It must therefore be assumed that [the Tannaim] differ as to whether one may walk on eatables or not, one holding that it is permitted, and the other holding it is not permitted?19 - R. Zebid then replied in the name of Raba: If you assume that the first Tanna holds that an identification mark which is likely to be trodden on is not a valid mark, and that one may pass by eatables, why should one have to announce [the finding of] home-made loaves? Therefore R. Zebid said in the name of Raba that all are of the opinion that an identification mark which is likely to be trodden on is a valid mark, and that one may pass by eatables, but here [in our Mishnah the Tannaim] differ regarding an identification mark which may have come of itself, the first Tanna being of the opinion that an identification mark which may have come of itself is not a valid mark, and R. Judah being of the opinion that it is a valid mark. Rabbah [on the other hand] will tell you that all agree that an identification mark which is likely to be trodden on is not a valid mark, and that one may not pass by eatables, but that [the Tannaim] differ here regarding a mark which may have come of itself, the first Tanna being of the opinion that an identification mark which may have come of itself is not a valid mark, and R. Judah being of the opinion that it is a valid mark.
R. Zebid said in the name of Raba: The general principle in regard to a loss is: If [the loser] has said, 'Woe! I have sustained a monetary loss,' he has given it up.20
R. Zebid also said in the name of Raba: The law is: Small sheaves, [if found] in a public thoroughfare, belong to the finder; [if found] on private grounds they belong to the finder when [discovered in the position of things] dropped [accidentally], but [if found in the position of things] laid down [deliberately, the finder] has to take them up and announce them. Both [rulings] apply only to a [case where the lost] article has no identification mark, but in a [case where the lost] article has an identification mark it has to be announced irrespective of whether [it has been found in the position of things] dropped [accidentally] or whether [it has been found in the position of things] laid down [deliberately].
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(1) So that the identification mark disappears.
(2) They are moved about by the traffic and do not remain in the place where they were dropped.
(3) As there is very little traffic in private premises they remain in the same place.
(4) V. Mishnah, infra 25a.
(5) In the case of the loaves referred to in the Mishnah.
(6) Therefore loaves of bread will not be trodden on but will be picked up as soon as they are noticed. Cf. 'Er. 64b.
(7) Who are not likely to observe the rule laid down by the Rabbis.
(8) They are afraid to tread on eatables in case the eatables are bewitched.
(9) The first Tanna (R. Meir in our version of the Mishnah) says distinctly that rounds of figs belong to the finder, and he makes no distinction between those that contain something unusual and those that do not.
(10) As a potsherd in a round of figs - which may have got into the round accidentally or may have been put in deliberately.
(11) As it is assumed that it was done deliberately, for the purpose of identification.
(12) Therefore the first Tanna maintains that the mark is of no consequence, as if trodden on it will disappear.
(13) The first Tanna will say that as it is liable to be trodden on and to disappear it is not a valid mark, and R. Judah will say that as long as the mark is there it is valid.
(14) This accounts for the need of announcing home-made loaves.
(15) Such as money found in home-made loaves.
(16) Which explains the ruling of R. Judah in our Mishnah.
(17) V. p. 143. n. 7.
(18) According to which the difference of opinion between the Rabbis refers to the question whether one may pass by eatables or not.
(19) R. Meir would hold that it is permitted and therefore the mark is not valid, while R. Judah would hold the contrary view.
(20) And the finder is entitled to keep it.AND STRINGS OF FISHES. Why [do they belong to the finder]? Should not the knot serve as an identification mark?1 - [The Mishnah speaks] of a fisherman's knot which is tied so universally.2 But should not the number of [fishes on the string] serve as a distinguishing mark? - [The Mishnah speaks] of a fixed number [of fishes].3 R. Shesheth was asked: Is the number4 a distinguishing mark or not? - R. Shesheth answered: You have learned it: If one finds a vessel of silver or copper or tin5 of lead or any other kind of metal,6 one shall not return it unless [the loser] indicates a mark, or unless he states accurately its weight. And seeing that weight is an identification mark measurement and number are also [to be deemed] identification marks.
AND PIECES OF MEAT, etc. Why [do they belong to the finder]? Should not the weight serve as a distinguishing mark? - [The Mishnah speaks] of a fixed weight.7 But should not the piece itself, whether it be of the neck8 or of the loin, serve as an identification mark? Has it not been taught: 'If one finds pieces of fish, or a fish which has been bitten into,9 one has to announce [the find]; barrels of wine, oil, corn, dried figs, or olives belong to the finder'? - Here we deal with a case where there is an identification mark in the cut.10 Thus Rabbah son of R. Huna used to cut [pieces of meat] in the shape of a triangle.11 There is also a proof for this:12 For he mentions [cut pieces as if they were] like the fish which has been bitten into.13 This is conclusive.
The Master said [as quoted above]: 'Barrels of wine, oil, corn, dried figs, or olives belong to the finder.' But have we not learnt: Jars of wine and jars of oil have to be announced?14 - R. Zera answered in the name of Rab: Our Mishnah deals with sealed [barrels].15 'It must thus be assumed that the Baraitha deals with open [barrels] - but open barrels constitute a deliberate loss!16 - R. Hosaia answered: [It deals with] barrels which have been stopped up.17 Abaye says: You may even say that both [the Mishnah and the Baraitha] deal with sealed [barrels], yet there is no contradiction: Here18 [the law refers to the time] before the opening of the cellars;19 there [it refers to the time] after the opening of the cellars.20 Thus R. Jacob b. Abba found a barrel of wine after the opening of the cellars, and when he appeared before Abaye the latter said to him: Go and take it for yourself.21
R. Bibi asked of R. Nahman: Is the place [where an article is found] an identification mark or not? - [R. Nahman] answered him: You have learned it: If one finds barrels of wine, or of oil, or of corn, or of dried figs, or of olives, they belong to him. Now if you were to assume that the place [where an article is found] is an identification mark [the finder] ought to announce the place!22 - R. Zebid answered: Here we deal with [barrels found] on the river-bank.23 R. Mari said: For what reason did the Rabbis maintain that the river-bank does not constitute an identification mark? Because we say to him:24 As it happened to you, so it may have happened to your neighbour.25 Some have another version: R. Mari said: For what reason did the Rabbis maintain26 that the place constitutes no identification mark? Because we say to him: As it happened to you in this place, so it may have happened to your neighbour in this [same] place.
Once a man found some pitch in a winepress. So he appeared before Rab, and the latter said to him: Go and take if for yourself. When [Rab] saw that he hesitated [to do so] he said to him: Go and share it with my son Hiyya. Shall we then say that Rab is of the opinion that the place [where an article is found] does not constitute an identification mark? - R. Abba answered: It was appropriated because it27 was deemed to have been abandoned by the owners, as it was seen that weeds had grown upon it.28
R. SIMEON B. ELEAZAR SAYS, etc. What is meant by 'anfuria'?29 Rab Judah said in the name of Samuel: New vessels which one's eye has not yet sufficiently noted.30 - In what circumstances? If there is on them an identification mark - what does it matter if the eye has not yet sufficiently noted them? If there is no identification mark on them-what does it matter if the eye has sufficiently noted them?31 - Admittedly there is no identification mark on them. But the point [as explained by Rab Judah] is important in regard to the question whether the [lost vessels] should be returned to [a claimant who is] a learned man32 [and who recognises the vessels] by sight:33 If [it is a case where] the eye has sufficiently noted [the lost vessels] he is sure to know them, and we give them back to him. But [in a case] where the eye has not sufficiently noted them he cannot be sure to know them, and we do not give them back to him. For Rab Judah said in the name of Samuel: In the following three matters learned men do conceal the truth: In matters of a tractate,34 bed,35
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(1) Cf. supra 20b; infra 25b.
(2) The kind of knot which fishermen use everywhere and which therefore cannot be regarded as an identification mark.
(3) The number of fishes which fishermen usually hang on the same string, so that there is nothing distinctive about it.
(4) Var. loc., weight instead of number. [This apparently is the correct reading, as is shown by what follows, unless we omit 'measurement' in the last sentence of this paragraph. There is however also a reading: 'Is the measurement, number and weight etc.?' v. D.S.]
(5) **
(6) [So MS.M., cur. edd.: 'vessels'.]
(7) The usual weight of pieces of meat cut by butchers for sale. Cf. p. 145. nn. 3-4.
(8) [Or, 'rib'.]
(9) This forms an identification mark.
(10) The pieces of fish referred to in the quoted Baraitha are distinguishable by reason of the peculiar shape into which they are cut.
(11) Which made them distinguishable so that they remained Kasher even when they were lost sight of.
(12) The context bears out the correctness of the assumption that the shape of the pieces was peculiar and served as an identification mark.
(13) Which is obviously recognisable because of the identification mark.
(14) Infra 25a.
(15) Barrels which had been opened for the purpose of taking a sample of the wine, and were sealed again by the vendor with his own (distinctive) seal before delivery.
(16) Barrels of wine which have been left open become unfit for use (cf. Ter. VIII, 4), and the person who leaves it open knows that he is incurring a loss.
(17) But not sealed - so that there is no identification mark, while the wine is fit to be used.
(18) In the Mishnah.
(19) Before the time when the sale and delivery of the barrels of wine begins, and when the barrels are still generally unsealed. If one vendor then sealed a barrel and sold it the seal constitutes an identification mark.
(20) When the sealing of the barrels has become general, and the seal no more constitutes an identification mark.
(21) He had a right to keep the found barrel as it was not deemed to have an identification mark.
(22) So that the loser could claim the articles by indicating the place where he lost them.
(23) The quay where barrels are unloaded from the boats. Such a place cannot be regarded as an identification mark, and the indication of the place would not entitle one to reclaim the lost barrel.
(24) To the loser.
(25) Other people may have left barrels of wine there by mistake.
(26) [Read preferably with some texts, 'What is the reason of the one who maintains, etc.?']
(27) Lit., 'they considered the fact that it, etc.'
(28) Which showed that the pitch had been there for a long time and had been given up by the owner.
(29) אנפוריא merchandise. [It is connected in dictionaries with the Gr. **]
(30) As they have not been sufficiently long in use, and they cannot be properly recognised when seen again.
(31) If there is nothing particular about them to distinguish them from other vessels the fact that they have been long in use, and that their shape etc. has been fully noted, should make no difference.
(32) Who is not likely to claim goods to which he is not entitled.
(33) Cf. supra 19a.
(34) If he asked whether he is familiar with a certain tractate of the Talmud he will modestly say 'no' - even though in fact he is familiar with it.
(35) This is explained in various ways. According to Rashi it refers to a question which may be put to a scholar regarding the performance of his conjugal duties, and to which he may decline to give a correct answer because of a sense of delicacy.hospitality.1 What is the point [in this observation]? - Mar Zutra said: [It is important in regard to the question] of returning a lost article, [recognised] by sight: If we know that [the claimant] conceals the truth in those three matters only we give it back to him, but if he does not speak the truth also in other matters we do not give it back to him. Mar Zutra the pious once had a silver vessel stolen from him2 in a hospice. When he saw a disciple wash his hands and dry them on someone else's garment he said, 'This is the person [who stole the vessel], as he has no consideration for the property of his neighbour.' [The disciple] was then bound, and he confessed.
It has been taught: 'R. Simeon b. Eleazar admits that new vessels which the eye has sufficiently noted have to be announced. And the following new vessels which the eye has not sufficiently noted have not to be announced: such as - poles of needles,3 knitting needles, and bundles of axes. All these objects mentioned above are permitted4 only if they are found singly, but if found in twos one must announce them.' What are badde ['poles']? Rods. And why are they called badde ['poles']? Because an object on which things hang is called 'bad'5 - as is stated there:6 One leaf on one branch ['bad']. 'R. Simeon b. Eleazar also said: If one rescues anything from a lion, a bear, a leopard, a panther, or from the tide of the sea, or from the flood of a river, or if one finds anything on the high road, or in a broad square, or in any place where crowds are frequent, it belongs to the finder - because the owner has given it up.7
The question was asked: Did R. Simeon b. Eleazar say this [with regard to things found in places] where the majority of the people are heathens,8 but not where the majority are Israelites, or [did he say this] also [with regard to things found in places] where the majority are Israelites? And if you come to the conclusion that [he said this] also where the majority are Israelites do the Rabbis differ from him or not? And if you come to the conclusion that they differ from him - they would certainly differ where the majority are Israelites - do they differ where the majority are heathens, or not?9 And if you come to the conclusion that they differ even where the majority are heathens, is the law in accordance with his view or not? And if you come to the conclusion that the law is in accordance with his view, does this apply only to the case where the majority are heathens, or also to the case where the majority are Israelites? - Come and hear: If one finds money in a Synagogue or a house of study, or in any other place where crowds are frequent, it belongs to the finder, because the owner has given it up.10 Now, who is the authority that lays it down that we go according to the majority11 if not R. Simeon b. Eleazar? You must therefore conclude that [he applies this principle] also to a case where the majority are Israelites!12 - Here we deal with [a case where the money found was] scattered.13 But if [the money was] scattered, why refer to places where crowds are frequent? It would apply also to places where crowds are not frequent!14 - Admittedly, therefore, [the reference is to money found] in bundles,15 but we deal here with Synagogues16 of heathens. But how can this be applied to 'houses of study'?17 - [The reference is to] our houses of study in which heathens stay.18 Now that you have arrived at this conclusion [the reference to] 'Synagogues' [can] also [be explained as meaning] our Synagogues in which heathens stay.
Come and hear: If one finds therein19 a lost object, then if the majority are Israelites it has to be announced, but if the majority are heathens it has not to be announced.20 Now who is the authority that lays it down that we go according to the majority if not R. Simeon b. Eleazar? You must therefore conclude that R. Simeon b. Eleazar says this only where the majority are heathens, but not where the majority are Israelites! - [No.] This is the view of the Rabbis. But then you could conclude therefrom that the Rabbis accept R. Simeon b. Eleazar's view in the case where the majority are heathens! - Admittedly, therefore, this21 represents the view of R. Simeon b. Eleazar, and his ruling applies also to a case where the majority are Israelites, but here21 we deal [with a case where the money was] concealed.22 But if it was concealed, what has [the finder] to do with it? Have we not learnt: 'if one finds a vessel in a dungheap, if covered up he may not touch it; but if uncovered he must take it and announce it'?23 - As R. papa explained:24 [The reference is] to a dungheap which is not regularly cleared away, and which [the owner] unexpectedly decided to clear away - so here also [the reference is] to a dungheap which is not regularly cleared away, and which [the owner] unexpectedly decided to clear away.25
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(1) Regarding which a scholar may refuse to give correct information in order not to embarrass his host by inducing others to come and seek the latter's hospitality.
(2) [MS.M. omits 'from him'. The cup belonged accordingly to the hospice. (V. Rashi.) This version is supported by the fact that Mar Zutra acted in the case in a judicial capacity, and it is unlikely that he would act thus in a case affecting his own interests. V. Chajes. Z.H. Notes a.l.]
(3) Poles into which needles are stuck (Rashi). Some authorities leave out the word 'poles' and read 'needles' alone. Others regard the word 'poles' as separate from the word 'needles' (not as a construct but as an absolute plural form) and translate 'poles, needles,' etc.
(4) To be kept by the finder.
(5) בד the singular of בדי (poles).
(6) [So according to many texts; cur. edd., 'as we learnt' is evidently a copyist's error, as the passage cited (Suk. 44b) is not Mishnaic but Amoraic.]
(7) A.Z. 43a.
(8) [Heathens do not return lost articles (v. infra p. 152, n. 3), and consequently do not come within the provision of the law relating to the announcement of finds. Moreover, according to Tosaf., even if it were certain that the article belonged to an Israelite, there would be no need to return it because the owner, presuming that a heathen found it, would despair of recovering it. v. B.K. (Sonc. ed.) p. 666.]
(9) [In view of the principle that we do not follow the majority in money matters.]
(10) Cf. supra 21b.
(11) I.e., that in the question whether a found article is to be returned depends on considerations relating to the majority of the people that frequent the place where the article is found.
(12) As the majority of those congregating in a Synagogue are Israelites.
(13) In such a case the Rabbis also hold that the money belongs to the finder, as stated in the Mishnah, supra 21a.
(14) Scattered money has no identification mark and is given up by the owner as soon as it is lost, even if crowds do not frequent the place where it has been dropped.
(15) Which present an identification mark and are only given up when lost in a place which is frequented by crowds.
(16) כנסיות, lit., 'houses of assembly', or 'meeting places,' not Jewish houses of prayer. It is in this sense that the term is used here.
(17) Even if the term 'Synagogues' could be interpreted as meaning secular meeting places used by Gentiles, how could the term בית המדרש applied only to Colleges where Jewish law is studied and expounded, mean anything but Jewish Colleges frequented by Jews?
(18) Jewish Colleges situated outside the Jewish quarters and guarded by Gentile watchmen placed there for the purpose.
(19) In a city inhabited by Jews and heathens.
(20) Mak. II, 8.
(21) This cited Mishnah.
(22) In which case it was not lost at all, and if the majority were Israelites the finder would have to announce it.
(23) As the article may have been thrown on the dungheap accidentally (Mishnah, infra 25b).
(24) Ibid.
(25) In which case the finder must take the article away and announce it. (Cf. infra 25b.) Had the owner of the dungheap been in the habit of clearing it away regularly the person who placed the article there could not have claimed it, as the 'loss' would have been a deliberate one.And if you wish I will say: Admittedly this is the view of the Rabbis,1 but is it stated. 'They belong to the finder'? - It [merely] says 'He has not to announce them' [meaning that] he lets it lie,2 and when an Israelite comes and indicates an identification mark in it he receives it.
Come and hear: R. Assi said: If one finds a barrel of wine in a town where the majority are heathens he is permitted [to keep it] as a find but he is forbidden to derive any benefit from it.3 If an Israelite comes and indicates an identification mark in it the finder is permitted to drink it.4 Now this is obviously in accordance with the view of R. Simeon b. Eleazar.5 It therefore follows that R. Simeon b. Eleazar only Says this where the majority are heathens, but not where the majority are Israelites! - [No.] In reality, I will tell you. R. Simeon b. Eleazar says this also where the majority are Israelites, but R. Assi agrees with him in the one case6 but differs from him in the other case.7 But if [the finder] is forbidden to derive any benefit [from the barrel of wine], what purpose does the law serve [by permitting him to keep it]? - R. Ashi answered: In regard to the vessel.8
A certain man once found four zuz which had been tied up in a cloth and thrown into the river Biran. When he appeared before Rab Judah the latter said to him, 'Go and announce it.' But is not this [like retrieving an object from] the tide of the sea? - The river Biran is different. As it contains obstacles9 the owner does not give up hope.10 But does not the majority11 consist of heathens? Hence it must be concluded that the halachah is not in accordance with R. Simeon b. Eleazar even where the majority are heathens! - [The position in regard to] the river Biran is different. For Israelites dam it up12 and Israelites dredge it: As Israelites dam it up it may be assumed that an Israelite dropped [the coins], and as Israelites dredge it, [the loser] did not give them up.13
Rab Judah once followed Mar Samuel into a street of wholemeal vendors,14 and he asked him: What if one found here a purse?15 - [Mar Samuel] answered: It would belong to the finder. What if an Israelite came and indicated an identification mark? - [Mar Samuel] answered: He would have to return it. Both?16 - [Mar Samuel] answered: [He should go] beyond the requirements of the law.17 Thus the father of Samuel found some asses in a desert, and he returned them to their owner after a year of twelve months: [he went] beyond the requirements of the law.
Raba once followed R. Nahman into a street of skinners18 - some say into a street of scholars - and he asked him: What if one found here a purse? - [R. Nahman] answered: It would belong to the finder. What if an Israelite came and indicated its identification mark? - [R. Nahman] answered: It would [still] belong to the finder. But that one keeps protesting! - It is as if one protested against his house collapsing or against his ship sinking in the sea.
Once a vulture seized a piece of meat in the market and dropped it among the palm-trees belonging to Bar Marion. When the latter appeared before Abaye he19 said to him: Go and take it for yourself. Now, the majority [in that case] consisted of Israelites. Hence it must be concluded that the halachah is in accordance with R. Simeon b. Eleazar even where the majority are Israelites! - [The position in regard to] a vulture is different - for it is like the tide of the sea.20 But did not Rab say that meat which has disappeared from sight is forbidden?21 - He22 stood by and watched it.23
R. Hanina once found a slaughtered kid between Tiberias and Sepphoris, and he was permitted [to appropriate] it. R. Ammi said: He was permitted [to appropriate] it as a find, according to R. Simeon b. Eleazar, and as regards the method of slaughter24 - [it was deemed proper.] according to R. Hanania, the son of R. Jose the Galilean. For it has been taught25 'If one lost his kids or chickens and subsequently found them slaughtered - R. Judah forbids them, and R. Hanania the son of R. Jose the Galilean, permits them [to be eaten]. Rabbi said: The words of R. Judah seem right in a case where [the lost kids or chickens] were found on a dungheap while the words of R. Hanania, the son of R. Jose the Galilean seem right when they were found in a house.26 Now, seeing that they were permitted in regard to the method of slaughter, the majority must have consisted of Israelites.27 Hence it must be concluded that the halachah is according to R. Simeon b. Eleazar even where the majority are Israelites! - Raba replied: [That was a case where] the majority [of the inhabitants were] heathens, and the majority of the slaughterers [were] Israelites.28
R. Ammi once found some slaughtered pigeons between Tiberias and Sepphoris. When he appeared before R. Assi - some say, before R. Johanan; others again say, in the house of study - he was told: 'Go and take them for yourself.'
R. Isaac the blacksmith once found some balls of string which were used for making nets. When he appeared before R. Johanan - some say. in the house of study - he was told: 'Go and take them for yourself.'
*MISHNAH. THE FOLLOWING OBJECTS HAVE TO BE PROCLAIMED: IF ONE FINDS FRUIT IN A VESSEL,29 OR A VESSEL BY ITSELF, MONEY IN A PURSE,30 OR A PURSE BY ITSELF; HEAPS OF FRUIT,31 HEAPS OF COINS,
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(1) And it is not a case where the money was concealed. It is wrong, however, to conclude from this that the Rabbis agree with R. Simeon b. Eleazar where the majority are heathens, as their decision does not mean that the article belongs to the finder.
(2) [I.e., he retains it in his possession till an Israelite comes. V. Strashun a.l.] The fact that the majority are heathens does not, according to the Rabbis, entitle the finder to appropriate the article, v. supra. p. 151, n. 9.
(3) As the wine may have been used in connection with idol-worship and thus become ײן נסך i.e., forbidden not only to be drunk by Jews but also to be utilised in any way that might yield profit or pleasure.
(4) As the owner proves to be a Jew the prohibition relating to wine used in connection with idol-worship does not arise, and as the majority of the inhabitants of the place are heathens who do not return lost articles, the owner must be assumed to have abandoned the hope of recovering the lost goods.
(5) Who maintains that in such a case the majority must be considered in deciding whether the finder is entitled to appropriate the article or not.
(6) Where the majority are heathens.
(7) Where the majority are Israelites.
(8) He may use the vessel in which the wine is contained, although he is forbidden to use the wine.
(9) Various kinds of network intended to catch the fish.
(10) As the network is likely to hold up the article floating in the river the owner hopes that the article will ultimately be recovered.
(11) Of the inhabitants of the territory through which the river Biran flows.
(12) By placing the network therein for the purpose of catching fish.
(13) He depended on the Israelites recovering the article during dredging operations and returning it to him.
(14) Where crowds congregate.
(15) Would he be entitled to keep it?
(16) Do not the two views contradict each other?
(17) I.e., in saying 'he would have to return it' R. Simeon b. Eleazar did not give a legal decision but indicated what he would regard as the proper action to take on the ground of morality. The term used (לפנים משורת הדין) means literally 'within the line of justice,' i.e. performing a good action even if one is not compelled to do so legally. Cf. B.K. (Sonc. ed.) p. 584, n. 2.
(18) Persons who deal in skins, leather and leather goods.
(19) Abaye.
(20) The owner is sure to have given up the hope of recovering the loss.
(21) As it may have been exchanged for, or replaced by, meat taken from an unclean animal or be otherwise unfit to be eaten by Jews.
(22) Bar Marion.
(23) From the time the vulture seized it until it dropped it.
(24) I.e., as regards the assumption that the kid had been slaughtered in accordance with the Jewish ritual and was therefore 'Kasher', or fit to be eaten by Jews.
(25) V. Hul. 12a.
(26) Which would show that they were unfit to be eaten.
(27) As otherwise it could not be assumed that the Jewish method of slaughter had been used.
(28) It could therefore be assumed that the Jewish method of slaughter was used, although the majority of the inhabitants were heathens. * The translation from here to the end of the tractate is by Rabbi Dr. H. Freedman.
(29) Which usually has some identification mark by which the owner may recognise it.
(30) Which also has an identification mark.
(31) Heaps of fruit or money also have identification marks, as explained in the Gemara below.THREE COINS ON THE TOP OF EACH OTHER,1 BUNDLES OF SHEAVES IN PRIVATE PREMISES, HOME-MADE LOAVES, FLEECES OF WOOL FROM THE CRAFTSMAN'S WORKSHOP, JARS OF WINE OR JARS OF OIL, THEY HAVE TO BE PROCLAIMED.
GEMARA. Obviously it is only when fruit is found in a vessel, or money in a purse. [that they have to be proclaimed]; but if the fruit is in front of the vessel, or the money in front of the purse, they belong to the finder. Our Mishnah thus teaches the same as our Rabbis taught [in another place]: If one finds fruit [lying] in front of a vessel, or money in front of a purse, they belong to the finder. If [the fruit is] partly in the vessel and partly on the ground, or if [the money is] partly in the purse and partly on the ground, they have to be proclaimed.
But the following contradicts it: If a man found an object lacking an identification mark at the side of an object possessing it, he is bound to proclaim [them];2 if the identifier of the mark came and took his own,3 the other [sc. the finder] is entitled to the object without a mark! - Said R. Zebid: There is no difficulty. The former [Baraitha] refers to a cask and flax; the latter, to a basket and fruit.4 R. papa said: Both refer to a basket and fruit, yet there is no difficulty. The latter [Baraitha] holds good if something was still left therein; the former, if nothing was left therein.5 Alternately, both [Baraithas] mean that nothing is left therein, yet there is no difficulty. In the latter, its [sc. the basket's] mouth is turned towards the fruit; in the former, it is not. Another alternative: in both its mouth faces the fruit, yet there is no difficulty. The former [Baraitha] treats of baskets with rims; the latter, of the baskets without.6
HEAPS OF FRUIT; HEAPS OF COINS. This proves that number is an identification mark!7 - [No.] Read: A heap of fruit.8 Then it proves that place is a means of identification! [No.] Read: HEAPS OF FRUIT.9
THREE COINS ON TOP OF EACH OTHER. R. Isaac said: provided that they lie pyramid-wise.10 It has been taught likewise: If a man finds scattered coins, they belong to him. If they are arranged pyramid-wise he is bound to proclaim them. Now is not this self-contradictory? [First] you state, 'If a man finds scattered coins they belong to him,' thus implying, but if they overlap,11 he must proclaim them.12 Then consider the latter clause: 'If they are arranged pyramid-wise, He is bound to proclaim them,' implying, however, that if they merely overlap, they are his? - All [coins] not arranged conically the Tanna designates scattered.
R. Hanina said: This was taught only of [coins of] three kings;13 but if of one king, he need not proclaim them. How so? If they lie pyramid-wise, then even [if they are] of one king [the proclamation should be made]; if they do not lie pyramid-wise, even if they are of three kings there should be no need [to proclaim them]? - But if stated, it14 was thus stated: 'This was taught only of [coins of] one king, yet similar to those of three.'15 How so? When they lie pyramidically, the broadest at the bottom, the medium-sized upon it, and the smallest on top of the middle one; in which case we assume that they were placed thus. If, however, they are of one king, all being of equal size, then even if they are lying upon each other they belong to him [the finder]: we assume that they fell thus together by mere chance. R. Johanan [however] maintained: Even if of the same king,16 he must proclaim them.17
Now, what does he proclaim - the number?18 Then why particularly three - even if two it should be the same? - Said Rabina: He announces 'coins'.19
R. Jeremiah propounded: What if they were disposed in a circle,20 in a row, triangularly.21 or ladderwise?22 - Solve at least one [problem]. For R. Nahman said in Rabbah b. Abbuha's name: Wherever a chip can be inserted23 whereby they [the coins] may be lifted simultaneously, a proclamation must be made.24
R. Ashi propounded:
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(1) V. Gemara below.
(2) E.g.. a purse and money; if the purse is identified, the money too belongs to its owner. This contradicts the Baraitha just quoted.
(3) But disclaimed ownership of the other object.
(4) The cask is identifiable, but not the flax; similarly the basket and the fruit. Now, had the flax fallen out of the cask, some would have remained therein; hence it is assumed that they were lying together by chance, and so the flax belongs to the finder. Fruit, however, can easily roll out of its basket entirely, and therefore both are assumed to belong to the same person.
(5) R. Papa would appear to reject R. Zebid's distinction. Rashi, however, observes that fruit baskets generally had an inside rim, which would prevent ail the fruit from rolling out. In that case, R. Papa and R. Zebid may agree, R. Papa referring to baskets with rims, R. Zebid to rimless ones. In point of fact, whereas Maimonides accepts R. Papa's explanation but rejects R. Zebid's, shewing that he holds them contradictory. Asheri and the Tur accept both.
(6) V. n. 3.
(7) Since fruit and.coins cannot be identified, the only possible distinguishing feature is the number of heaps.
(8) I.e., though the Mishnah employs the plural, that is only in a general way; yet the same holds good even of a single heap. In that case, of course, there is no number, the place where it was found being the mark of identification.
(9) I.e., though it has just been stated that the plural may be generic, on the other hand it may be particularly used, in which case number is the distinguishing feature. Hence the Mishnah merely proves that either number or place is an identification mark, but not both, and it cannot be shewn which.
(10) Conically, a large coin at the bottom, a smaller one above it, and so on. These must have been placed so, and the owner will be able to identify them by the manner of their disposal. - The reason of such disposal might have been that the owner found himself bearing the money on the Sabbath, or on Friday just before the commencement of the Sabbath; v. Shab. 153b.
(11) Lying partly on each other and partly on the ground. - Rashi. Jast: but if they lie irregularly, some of them piled, others scattered.
(12) Because they would not have fallen, but must have been placed thus.
(13) Each coin being of a different reign.
(14) The statement of R. Hanina.
(15) I.e., of different sizes.
(16) I.e., of equal size.
(17) Since they are arranged exactly on top of each other.
(18) That three coins were found, and the owner identifies them by their arrangement.
(19) Without stating a number; two being the smallest possible number of 'coins', it cannot be accepted as a mark of identification; hence the find is not proclaimed for less than three. The translation and explanation follows Asheri, who regards the question as bearing directly on the Mishnah and not on the views of R. Hanina and R. Johanan, as Rashi appears to regard it.
(20) Lit., 'like a bracelet'.
(21) Lit., 'as a tripod.'
(22) The greater part of the middle coin lying on the bottom one, and the greater part of the top coin lying on the middle one.
(23) [Adopting reading of some texts; cur. edd.: 'between them'.]
(24) For they must have been placed so. Hence a proclamation is necessary if they lay ladderwise.What if they are arranged as the stones of a Merculis way-mark?1 - Come and hear: For it has been taught: If one finds scattered coins, they belong to him; [but if they lay] as the stones of a Merculis way-mark, he must proclaim them. And thus are the stones of a Mercules way-mark arranged: one at each side, and a third on top of both.2
Our Rabbis taught: If one finds a sela' in a market place, and then his neighbour accosts him and says. 'It is mine; it is new, a Nero coin or of such and such an emperor' - he is ignored.3 Moreover, even if his name is written upon it, his claim is still rejected,4 because an identification mark is of no avail in respect to a coin, for one can say, He may have expended it and someone else lost it.5
MISHNAH. IF A MAN FINDS FLEDGLINGS TIED TOGETHER BEHIND A FENCE OR WALL, OR IN THE PATHWAYS THROUGH FIELDS, HE MUST NOT TOUCH THEM.6 IF A MAN FINDS A VESSEL IN A DUNGHEAP: IF COVERED UP, HE MUST NOT TOUCH IT;7 IF UNCOVERED. HE MUST TAKE AND PROCLAIM IT.
GEMARA. What is the reason?8 - Because we say, A person hid them here, and if he [the finder] takes them, their owner has no means of identifying them. Therefore he must leave them until their owner comes and takes them. But why? let the knot be a means of identification!9 - Said R. Abba b. Zabda in Rab's name: They were tied by their wings, everyone tying them thus. Then let the place [where they were found] be an identification mark. - Said R. 'Ukba b. Hama: It refers to such that can hop. But if they hop, they may have come from elsewhere, and should be permitted!10 - One may surmise that they came from elsewhere, but one can also surmise that a person hid them there: hence it is a case of doubtful placing, and R. Abba b. Zabda said in Rab's name: Whenever it is doubtful if an article was left [in a certain spot], one must not take it in the first instance; but if he took, he need not return it.
IF A MAN FINDS A VESSEL ON A DUNG HEAP: IF COVERED UP, HE MUST NOT TOUCH IT; IF EXPOSED, HE MUST TAKE AND PROCLAIM IT. But the following contradicts it: If one finds an article hidden in a dungheap, he must take and proclaim it, because it is the nature of a dungheap to be cleared away!11 - Said R. Zebid: There is no difficulty. The one refers to casks and cups; the other to knives and forks: in the case of casks and cups, he must not touch them;12 in the case of knives and forks, he must take and proclaim them.13 R. papa said: Both refer to casks and cups, yet there is no difficulty. The one refers to a dungheap that is regularly cleared away; the other, to one that is not cleared away regularly.14 'A dungheap which is regularly cleared away'! - But then it is a voluntary loss?15 - But it refers to a dungheap which was not regularly cleared away, but he [its owner] decided to clear it out.16 Now, as for R. papa, it is well; on that account17 it is stated, 'because it is the nature of a dunghill to be cleared away.'18 But according to R. Zebid, what is meant by, 'because it is the nature of a dunghill to be cleared away'? - [This:] Because it is the nature of a dunghill that small articles should be cleared therein.19
MISHNAH. IF HE FINDS [AN ARTICLE] AMIDST DEBRIS OR IN AN OLD WALL,20 THEY BELONG TO HIM. IF HE FINDS AUGHT IN A NEW WALL: IF IN THE OUTER HALF [THEREOF], IT IS HIS; IN THE INNER HALF, IT BELONGS TO THE OWNER OF THE HOUSE.21 BUT IF IT [THE HOUSE] USED TO BE RENTED TO OTHERS, EVEN IF HE FINDS [ARTICLES] IN THE HOUSE ITSELF, THEY BELONG TO HIM.
GEMARA. A Tanna taught: Because he [the finder] can say to him,22 They belonged to Amorites.23 Do then only Amorites hide objects. and not Israelites?24 - This holds good only
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(1) I.e., a way-mark dedicated to Merculis or Mercurius, a Roman divinity identified with the Greek Hermes. The Gemara states below how these were disposed. Our text actually reads 'Kulis', and Tosaf. conjectures that this was the true name of the deity, but the Hamburg MS. reads 'Merculis'.
(2) [The Baraitha has in mind the trilithon or dolmen erected in front of the image.]
(3) Lit., 'he has said nothing'.
(4) V. last note.
(5) Lit., 'it fell from another person.'
(6) These places are semi-guarded, and therefore the birds may have been placed there, as explained in the Gemara.
(7) Because the covering shews that it was placed there.
(8) For the first ruling in the case of the fledglings.
(9) The owner can say where they were tied together.
(10) Since the owner has no means of identifying them.
(11) And if he does not take it, a heathen or an unscrupulous Jew may do so when the heap is cleared and keep it for himself. - Now, 'hidden' means that it is covered up, yet it is stated that he must take and proclaim it.
(12) These are too large to have been thrown there inadvertently.
(13) Because they may have been thrown there by accident.
(14) In the former case the finder must take and proclaim them; in the latter, he must not touch them.
(15) Why then proclaim them?
(16) V. supra p. 151.
(17) Sc. the distinction he draws.
(18) I.e., at any time.
(19) Hence a knife or fork (v. p. 159 n. 8) must be taken and proclaimed.
(20) These had cavities in which the objects could be placed.
(21) The reference is to a wall fronting a public thorough. fare. If the find is in the 'outer half,' i.e., the part facing the street, it must have been placed there by a passer-by, who has forgotten it; therefore it belongs to the finder. If in the 'inner half,' i.e., the part facing the house it encloses, the owner of the house must have placed it there.
(22) The owner of the ruins or the old wall.
(23) I.e., to one of the races that formerly inhabited Palestine.
(24) Surely if the article is in the inner half of the cavity, nearer the house, it should belong to the owner of the house.if it [the find] is exceedingly rusty.1
IN A NEW WALL: IF IN THE OUTER HALF [THEREOF], IT IS HIS; IN THE INNER HALF, IT BELONGS TO THE OWNER OF THE HOUSE. R. Ashi said: A knife follows its handle, and a purse its straps.2 Then when our Mishnah states, IF IN THE OUTER HALF [THEREOF], IT IS HIS; IN THE INNER HALF, IT BELONGS TO THE OWNER OF THE HOUSE: let us see whether the handle or the straps point outwards or inwards? - The Mishnah refers to tow-cotton and bar metal.3
A Tanna taught: If the wall [cavity] was filled therewith, they divide.4 But is that not obvious? - It is necessary [to state this] only when it [the cavity or the wall] slopes to one side: I might have thought that it [the article found there] had slid down.5 Therefore we are taught [otherwise].
BUT IF IT [THE HOUSE] USED TO BE RENTED TO OTHERS, EVEN IF ONE FINDS [ARTICLES] IN THE HOUSE ITSELF, THEY BELONG TO HIM. Why so: let it be assigned to the last [tenant]?6 Did we not learn: Money found in front of cattle dealers at all times is [accounted as] tithe; on the Temple Mount, it is hullin; in [the rest of] Jerusalem, at any other part of the year, it is hullin; at the Festival season, it is tithe.7 And R. Shemaia b. Ze'ira observed thereon: What is the reason? Because the streets of Jerusalem8 were swept daily. This proves that we assume: the earlier [losses] have gone, and these [coins] are different ones. So here too, the earlier [deposits] have gone, and these belong to the last [tenant]?9 - Said Resh Lakish on the authority of Bar Kappara: It means e.g., that he [the owner of the house] had let it as a temporary lodging to three people [simultaneously].10 Then you may infer that the halachah agrees with R. Simeon b. Eleazar even in respect to a multitude of Israelites!11 - But, said R. Manassia b. Jacob, it means e.g., that he had let it as a temporary lodging to three gentiles. R. Nahman said in Rabbah b. Abbahu's name: It may even refer to three Jews.12 What then is the reason? It is because the man who lost it despairs thereof, arguing thus: 'Let us see, no other person but these was with me. Now, I have many times mentioned it in their presence so that they should return it to me, but they did not do so. Will they now return it!13 Had they intended to return it, they would have returned it to me,14 hence the reason of their not returning it to me is that they intend stealing it.'15 Now, R. Nahman follows his general reasoning. For R. Nahman said: If a person sees a sela'
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(1) Shewing that it was left there long ago. [An anticipation of modern archaeological research, v. Krauss, S., Hasoker, I, p. 131.]
(2) If a knife is found in a wall cavity, if the handle points inwards, it belongs to the owner of the house; outwards, it is assumed to have been placed there by a passer-by; similarly with a purse and its straps or laces.
(3) I.e., to articles where this criterion is inapplicable.
(4) Half belongs to the house owner and half to the finder.
(5) But was originally at the upper portion of the cavity, and the ownership should be determined accordingly.
(6) I.e., let the last tenant be assumed the owner (Tosaf.).
(7) Shek. VII, 2. If money is found in Jerusalem, the question arises, what is its status - is it ordinary secular coins (hullin) or tithe money? This was because the second-tithe (v. infra p. 517. n. 5) had to be eaten in Jerusalem or its monetary equivalent expended there, which money likewise was governed by the law of second tithe. Now, most of the flesh eaten in Jerusalem was bought with second tithe money, and generally took the form of peace offerings; when one could not stay long enough in Jerusalem to expend all the tithe money there, he would distribute it amongst the poor, or give it to his friends in Jerusalem. Consequently. if money is found in front of cattle dealers, whatever the time of the year, it is assumed to be of the second tithe. On the other hand, if found on the Temple Mount, we assume it to be hullin, even at Festival time, when most of the money handled is tithe, because the greater part of the year is not Festival, and then ordinary hullin is in circulation, and this money might have been lost before the Festival. But if found in the other streets of Jerusalem, a distinction is drawn, as stated in the text.
(8) But not the Temple Mount.
(9) Because before a tenant leaves his house he makes a thorough search to see that he leaves nothing behind.
(10) In addition to the tenant (so it appears to be understood by Tosaf. a.l. s.v. לשלשה and אפילו). Therefore whichever tenant lost it would have abandoned it in despair of its being returned, in accordance with the view stated by R. Simeon b. Eleazar supra 24a: three constitute a multitude.
(11) V. supra 24a.
(12) And still it does not follow that the halachah rests with R. Simeon b. Eleazar.
(13) After a lapse of some time. Surely not!
(14) And not assumed that it was lost by a former tenant.
(15) Thus in these special circumstances the loser may despair of the return thereof. But normally we do not follow the ruling of R. Simeon in the case of the majority of Israelites.fall from one of two people [who are together], he must return it. What is the reason? He who dropped it does not despair thereof, for he argues: 'Let us see, no other person but this one was with me; then I will seize him and say to him, You did take it.' But in the case of three1 he need not return it. What is the reason? - Because he who dropped it certainly abandons it, arguing to himself, 'Let us see: there were two with me; if I accuse the one he will deny it, and if I accuse the other, he will deny it.'
Raba said: As for your ruling that in the case of three he need not return it, that holds good only if it [the coin lost] lacks the value of a perutah2 for each [of the three]; but if it contains the equivalent of a perutah for each person, he is bound to return it. What is the reason? They may be partners, and therefore do not abandon it.3 Others state. Raba said: Even if it is worth only two perutahs, he must return it. What is the reason? They may have been partners, and one renounced his portion in the owner's favour.4
Raba also said: If a man sees a sela' fall, if he takes it before abandonment, intending to appropriate it,5 he transgresses all [the following injunctions]: Thou shalt not rob;6 thou shalt restore them;7 and, thou mayest not hide thyself.8 And even if he returns it after abandonment, he merely makes him [the loser] a gift, whilst the offence he has committed stands.9 If he picks it up before abandonment, intending to return it, but after abandonment decides to appropriate it, he violates [the injunction,] thou shalt restore them.10 If he waits until the owner despairs thereof and then takes it, he transgresses only, thou mayest not hide thyself.11
Raba also said: If a man sees his neighbour drop a zuz in sand, and then finds and takes it, he is not bound to return it. Why? He from whom it fell abandons it, and even if he is seen to bring a sieve and sift [the sand], he may merely be reasoning. 'Just as I dropped something, so may another have lost an article, and I will find it.'12
MISHNAH. IF A MAN FINDS [AN ARTICLE] IN A SHOP, IT BELONGS TO HIM:13 BETWEEN THE COUNTER AND THE SHOPKEEPER ['S SEAT], TO THE SHOPKEEPER.14 [IF HE FINDS IT] IN FRONT OF A MONEY-CHANGER, IT BELONGS TO HIM [THE FINDER]; BETWEEN THE STOOL15 AND THE MONEY-CHANGER, TO THE MONEY-CHANGER. IF ONE BUYS PRODUCE FROM HIS NEIGHBOUR, OR IF HIS NEighbour SENDS HIM PRODUCE, AND HE FINDS MONEY THEREIN, IT IS HIS. BUT IF THEY [THE COINS] ARE TIED UP, HE MUST TAKE AND PROCLAIM THEM.16
GEMARA. R. Eleazar said: Even if they [the articles found] are lying on the [money-changer's] table [they belong to the finder]. We learnt: [IF HE FINDS IT] IN FRONT OF A MONEY-CHANGER, IT BELONGS TO HIM. [This implies,] but if it was on the table, it belongs to the money-changer.17 Then consider the second clause: BETWEEN THE STOOL AND THE MONEY-CHANGER, TO THE MONEY-CHANGER; [implying,] but if on the table, it is his [the finder's], But [in truth] no inference can be drawn from this.18 And whence does R. Eleazar know this? - Said Raba: Our Mishnah presented to him a difficulty. Why teach particularly, BETWEEN THE STOOL AND THE MONEY-CHANGER. IT BELONGS TO THE MONEY-CHANGER? Let it state. 'on the table,' or, 'If one finds [an article] in a money-changer's shop.' just as the first clause teaches, IF ONE FINDS [AN ARTICLE] IN A SHOP, IT BELONGS TO HIM. Hence it must follow that even if it lay on the table, it is his.19
IF ONE BUYS PRODUCE FROM HIs NEIGHBOUR etc. Resh Lakish said on R. Jannai's authority: This refers only
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(1) If it was dropped by one of three persons.
(2) Cf. Mishnah, infra 55a.
(3) When one discovers the coin gone, he thinks that his partner may have taken it as a practical joke. The stranger therefore picks it up before abandonment, and so must return it.
(4) Hence the two perutahs belong to two, i.e., a perutah for each, so that the article comes within the ambit of theft, if taken before abandonment.
(5) For it is regarded as theft if he picks it up then with the intention of keeping it.
(6) Lev. XIX, 13.
(7) Deut. XXII, 1.
(8) Ibid. 3-sc. from taking up and returning a lost article.
(9) Lit., 'he has committed it.'
(10) Because 'thou shalt not rob' is applicable only when the action itself is committed with that intention. [Nor is the injunction. 'thou mayest not hide thyself' applicable where the desire to appropriate it came to him after abandonment; v. Rashi and Tosaf.]
(11) Since he takes it after abandonment, he is not guilty of robbery, nor must he return it. But by waiting until then, he 'hid himself,' i.e., refrained from taking the find at the proper time.
(12) But he has no hopes of finding his own, which he has already abandoned. Therefore the finder need not return it.
(13) This refers to an article which cannot be identified. Since any customer might have dropped it, the shopkeeper has no particular claim to it; whilst the loser must have abandoned it, since it bears no mark of identification. Asheri, however, maintains that it refers even to an article which can be identified, because the loser argues to himself, 'In all probability the shopkeeper would have been the first to find it, and since I have complained of my loss in his presence and he has not responded, he evidently intends to keep it.' Therefore the loser abandons it, and so the finder may keep it. (V. supra 26a for a similar argument.)
(14) Customers having no access to that spot, the shopkeeper must have dropped it there.
(15) [The chest attached to the table in front of the money-changer, wherein the money was placed; v. Krauss, TA, II. 411.]
(16) The manner of tying, or the number of coins, can prove ownership.
(17) 'IN FRONT' denotes on the ground.
(18) It neither refutes nor supports R. Eleazar.
(19) I.e., these difficulties force him to translate 'IN FRONT OF A MONEY-CHANGER as meaning even on his table, though generally the phrase connotes on the ground.to one who purchases from a merchant;1 but if one buys from a private individual, he is bound to return [the coins].2 And a tanna recited likewise before R. Nahman: This refers only to one who purchases from a merchant: but if from a private individual, he is bound to return [the coins]. Thereupon R. Nahman observed to him: 'Did then the private individual thresh [the grain] himself?'3 'Shall I then delete it?' he enquired. - 'No,' he replied; 'interpret the teaching of one who threshed [the grain] by his heathen slaves and bondswomen.4
MISHNAH. NOW, THE GARMENT TOO WAS INCLUDED IN ALL THESE: WHY THEN WAS IT SINGLED OUT?5 THAT AN ANALOGY MIGHT BE DRAWN THEREWITH, TEACHING: JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED, IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED.6
GEMARA. What is meant by IN ALL THESE? - Said Raba: In the general phrase, [and in like manner shalt thou do] with every lost article of thy brother.7
Raba said: Why should the Divine Law have enumerated ox, ass, sheep and garment?8 They are all necessary. For had the Divine Law mentioned 'garment' alone, I would have thought: That is only if the object itself can be attested, or the object itself bears marks of identification. But in the case of an ass, if its saddle is attested or its saddle bears marks of identification,9 I might think that it is not returned to him. Therefore the Divine Law wrote 'ass,' to shew that even the ass [too is returned] in virtue of the identification of its saddle. For what purpose did the Divine Law mention 'ox' and 'sheep'?' - 'Ox', that even the shearing of its tail, and 'sheep', that even its shearings [must be returned].10 Then the Divine Law should have mentioned 'ox', to shew that even the shearing of its tail [must be returned], from which the shearings of a sheep would follow a fortiori? - But, said Raba, 'ass,' mentioned in connection with a pit,11 on R. Judah's view, and 'sheep' in connection with a lost article, on all views, are [unanswerable] difficulties.12 But why not assume that it comes [to teach] that the dung [too must be returned]? - [The ownership of] dung is renounced.13 But perhaps its purpose is to teach the law of identification marks? For it is a problem to us whether identification marks are Biblically valid [as a means of proving ownership] or only by Rabbinical law; therefore Scripture wrote 'sheep' to shew that it must be returned even on the strength of identification marks, thus proving that these are Biblically valid. - I will tell you: since the Tanna refers to identification marks in connection with 'garment', for he teaches, JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED, IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, it follows that the purpose of 'sheep' is not to teach the validity of identification marks.14
Our Rabbis taught: [And so shalt thou do with all lost things of thy brother's] which shall be lost to him:15 - this excludes a lost article worth less than a perutah. R. Judah said: And thou hast found it16 - this excludes a lost article worth less than a perutah.17 Wherein do they differ? - Said Abaye: They differ as to the texts from which the law is derived: one Master deduces it from, 'which shall be lost to him;' the other, from, 'and thou hast found it.'18 Now, he who derives it from, 'which shall be lost to him,' how does he employ, 'and thou hast found it?' - He requires it for Rabbanai's dictum. For Rabbanai said: And thou hast found it implies even if it has come into his possession.19 Now, he who deduces it from, 'and thou hast found it,' how does he utilize, 'which shall be lost to him?' - He needs it for R. Johanan's dictum. For R. Johanan said on the authority of R. Simeon b. Yohai:20 Whence do we know that a lost article swept away by a river is permitted [to the finder]? From the verse, 'And so shalt thou do with all the lost things of thy brother which shall be lost to him and thou hast found it': [this implies.] that which is lost to him but is available21 to others in general, thus excluding that which is lost to him and is not available to others. And the other, whence does he infer Rabbanai's dictum? - He derives it from, and thou hast found it.22 And the other, whence does he know R. Johanan's dictum? - From, [which shall be lost] to him.23 And the other?24 - In his opinion, to him has no particular significance.
Raba said: They differ in respect of [a loss worth] a perutah, which [subsequently] depreciated.25 On the view that it is derived from, 'which shall be lost to him,' there is [the loss of a perutah]; but according to him who deduces it from, 'and thou hast found it,' there is not [a find of a perutah]. Now, he who emphasizes, 'which shall be lost' - surely, 'and thou hast found it,' must also be applicable, which is not [the case here]! - But they differ in respect of [an article now worth] a perutah, having appreciated.26 On the view that it is deduced from, 'and thou hast found it,' there is [the find of a perutah]; whereas according to him who deduces it from, 'which shall be lost,' there is not [the loss of a perutah]. Now, he who emphasizes, 'and thou host found it' - surely, 'which shall be lost,' must also be applicable, which is not [the case here]! - But they differ in respect of [an article worth] a perutah, which fell and then rose in value again.27 On the view that it is derived from, 'which shall be lost.' there is [the loss of a perutah]; but according to the opinion that it is inferred from, 'and thou host found it,' it must have had the standard of a 'find' from the time of being lost until found.
The scholars propounded: Are identification marks [legally valid] by Biblical or merely by Rabbinical law? What is the practical difference? -
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(1) Who himself buys from many people, so that the original ownership cannot be traced.
(2) 'Private individual' means one who grows his own produce.
(3) The money might have been lost by one of his workmen.
(4) These have no rights of ownership, and even if they lost the money, it still belongs to their master.
(5) Lit., 'did it go forth.'
(6) Lit., 'it has claimants'. The last phrase excludes articles which the owner has abandoned. - The whole Mishnah is explained in the Gemara.
(7) Deut. XXII, 3. - The 'singling out' of a garment is in the same verse: and in like manner shalt thou do with his garment.
(8) Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them: thou shalt in any case return them unto thy brother . . . . In like manner shalt thou do with his ass, and so shalt thou do with his garment. - Ibid. 1, 3.
(9) But not the ass itself.
(10) If the finder had occasion to shear these animals while in his Possession.
(11) Ex. XXI, 33: And if a man shall open a pit . . . and on ox or an ass fall therein.
(12) V. B.K. 54a. The Rabbis maintain that the maker of the pit is not responsible if a man or utensils fall therein, interpreting, 'ox,' but not man, 'ass,' but not utensils. R. Judah, however, maintains that he is responsible for utensils: hence the difficulty, why mention 'ass?'
(13) Hence it need not be returned.
(14) Though it is stated below that the Tanna may have mentioned identification marks in connection with 'garment' casually, yet that is sufficient to prove that in his opinion the purpose of 'sheep' is certainly not to prove their validity.
(15) Literal rendering of Deut. XXII, 3. (E.V.: which he hath lost.)
(16) Ibid.
(17) That which is not worth a perutah is neither a loss nor a find.
(18) But there is no difference in actual law.
(19) Lit., 'hand.' V: supra. p. 2.
(20) [Var. lec., 'b. Jehozadak,' v. supra p. 139. n. 4.]
(21) Lit., 'found.'
(22) [ומצאתה in the perfect following the imperfect אשר תאבד is taken to denote the pluperfect.]
(23) Whereas his own deduction that the law applies only to a loss worth a perutah, is from 'lost.'
(24) What does he derive from, 'to (from) him'?
(25) I.e., when lost it was worth a perutah, but not when found.
(26) When lost, it was not worth a perutah, but its value had increased to a perutah by the time it was found.
(27) When lost, it was worth a perutah; then its value fell, but when found it was again worth a perutah.In respect of returning a woman's divorce on the strength of identification marks:1 should you say that they are Biblically [valid], we return it; but if only by Rabbinical law the Rabbis enacted this measure for civil matters only, not for ritual prohibitions?2 - Come and hear: NOW, THE GARMENT TOO WAS INCLUDED IN ALL THESE. WHY THEN WAS IT SINGLED OUT? THAT AN ANALOGY MIGHT BE DRAWN THEREWITH, TEACHING: JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED. IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED!3 - The Tanna really desires [to teach] that there must be a claimant; identification marks are mentioned only incidentally.4
Come and hear: [Therefore Scripture wrote 'ass,' to shew that even] the ass [too is returned] in virtue of the identification marks of its saddle!5 - Read: in virtue of the witnesses [attesting to the ownership] of its saddle.6
Come and hear: And it [sc. the article found] shall be with thee until thy brother seek after it [and thou shalt return it to him]:7 now, would it then have occurred to thee that he should return it to him before he sought after it!8 But [it means this:] examine him [the claimant], whether he be a fraud or not.9 Surely that is by means of identification marks!10 - No: by means of witnesses. Come and hear: Testimony11 may be given12 only on proof [afforded by] the face with the nose, even if the body and the garment bear identification marks.13 This proves that identification marks are not Biblically valid! - I will tell you: In respect to the body, [the proposed identification marks were] that it was short or long;14 whilst those of his garments [are rejected] because we fear borrowing.15 But if we fear borrowing, why is an ass returned because of the identification of the saddle? - I will tell you: people do not borrow a saddle, because it chafes the ass ['s back].16 Alternatively, the garments [were identified] through being white or red.17 Then what of that which was taught: If he found it tied up in a purse, money bag, or to a ring, or if he found it amongst his [household] utensils, even a long time afterwards, it is valid.18 Now should you think, we fear borrowing: if he found it tied up in his purse [etc.], why is it valid? Let us fear borrowing! - I will tell you: A purse, wallet, and signet ring are not lent: a purse and a money bag, because people are superstitious about it;19 a signet ring, because one can commit forgery therewith.20
Shall we say that this is disputed by Tannaim? [For it was taught:] Testimony may not be given12 on the strength of a mole; but Eleazar b. Mahabai said: Testimony may be so given.21 Surely then they differ in this: The first Tanna holds that identification marks are [only] Rabbinically valid,22 whilst Eleazar b. Mahabai holds that they are Biblically valid? - Said Raba: All may agree that they are Biblically valid: they differ here as to whether a mole is to be found on one's affinity.23 One Master maintains that a mole is [generally] found on a person's affinity;24 whilst the other holds that it is not. Alternatively, all agree that it is not; they differ here as to whether identification marks25 are liable to change after death. One Master maintains: Identification marks are liable to change after death;26 the other, that they are not. Alternatively, all agree that a mole is not liable to change after death, and identification marks are valid only by Rabbinical law; they differ here as to whether a mole is a perfect mark of identification. One Master maintains that a mole is a perfect mark of identification,27 whilst the other holds that it is not.28
Raba said: If you should resolve that identification marks are not Biblically valid, why do we return a lost article in reliance on these marks?29 Because one who finds a lost article is pleased that it should be returned on the strength of identification marks, so that should he lose anything, it will likewise be returned to him through marks of identification. Said R. Safra to Raba: Can then one confer a benefit upon himself with money that does not belong to him! But [the reason is this:] the loser himself is pleased to offer identification marks and take it back.30 He knows full well that he has no witnesses; therefore he argues to himself, 'Everyone does not know its perfect identification marks,31 but I can state its perfect identification marks and take it back.' But what of that which we learnt: R. Simeon b. Gamaliel said: If it was one man who had borrowed from three, he [the finder] must return [them] to the debtor; if three had borrowed from one, he must return them to the creditor.32 Is then the debtor pleased that it [the promissory note] is returned to the creditor? - In that instance, he replied to him, it is a matter of logic. If it was one man who had borrowed from three, he must return [them] to the debtor, because they are to be found [together] in the debtor's possession, but not in the creditor's:33 hence the debtor must have dropped it. If three had borrowed from one, it must be returned to the creditor, because they are to be found in the creditor's possession, but not in the debtor's.
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(1) If a messenger was sent with a divorce but lost it before delivery. Subsequently a divorce was found, and the messenger identified it by means of certain marks therein.
(2) It is a general principle that the Rabbis could freely enact measures affecting civil matters, since they had the power to abrogate individual rights of property under certain conditions. But they could not nullify ritual prohibitions. Hence, if identification marks are Scripturally valid, the divorce is returned to the messenger, who proceeds to divorce the woman therewith. But if they have no Scriptural force, the Rabbis could not institute a measure to free her from her marriage bonds which was not sanctioned by the Bible.
(3) Thus it is explicitly stated that the validity of identification marks is deduced from Scripture, hence Biblical.
(4) I.e., it may be that 'garment' teaches only that ownership must be claimed. Since, however, it is a fact that it can be claimed on the strength of identification marks, the Tanna mentions these too, even if their validity is only Rabbinical.
(5) Cf. p. 170, n. 6.
(6) Even if only the ownership of the saddle is attested, the ass too is returned: that is deduced from the verse.
(7) Ibid. 2.
(8) Surely not! Then why state it?
(9) Translating: until thy brother's examination - i.e., until thou hast examined thy brother - in respect thereof. - Darash, besides meaning 'to seek', also connotes 'to make judicial investigation'; cf. Deut. XIII, 15: Then shalt thou (judicially) enquire (we-darashta).
(10) Thus proving that they are Biblically valid.
(11) To free a widow for marriage.
(12) As to the identity of a corpse.
(13) Yeb. 120a.
(14) These are naturally rejected, since many people are short or long. But it may well be that others are accepted.
(15) Granted that the ownership of the garments is established, that does not prove the identity of the corpse, as they might have been borrowed.
(16) A saddle must fit its particular ass.
(17) Cf. n. 4, [MS.M. omits this passage, and rightly so, seeing that it assumes that we do not fear borrowing, which would make the question that follows closely on irrelevant; v. n. 10.]
(18) Git. 27b. If a messenger loses a bill of divorce, and then finds one in the places mentioned, it is valid, and we do not fear that it might be a different document written for another husband and wife with identical names. A bill of divorce had to be written specifically for the woman it was intended to free.
(19) Believing it unlucky to lend them(Jast.).
(20) [MS.M. adds here the passage it omits above, v. n. 7.]
(21) Yeb. 120a.
(22) Therefore they cannot establish identity to break the marriage bond. Cf. p. 169, n. 1.
(23) I.e., a person born at the same hour and under the same planetary influence.
(24) And therefore it cannot establish identity.
(25) In Yeb, 120a, where this discussion is repeated, the text reads 'mole'.
(26) Therefore they cannot establish identity.
(27) Which leaves no doubt whatsoever. Even if identification marks in general are only Rabbinically valid, that is when they are not absolutely perfect; but if they are, they certainly have Biblical force.
(28) Thus so far the problem remains unsolved.
(29) I.e., why did the Rabbis give them validity for this purpose?
(30) [The text is difficult and hardly intelligible as it stands. Read with some versions: 'The loser himself is pleased that it should be returned (to any claimant) on the strength of identification marks.']
(31) Even if others have seen and can generally describe it, they cannot give a minute and detailed description. [R. Safra employs the term 'perfect identification marks' (סימנין מובהקים) in a loose sense, as any identification mark in general is valid for the recovery of a lost article; cf. also infra p. 177. n. 4. V. R. Nissim, Hiddushim, a.l.]
(32) V. supra 20a, Mishnah.
(33) Since there are three separate creditors.But what of that which we learnt: If one finds a roll of notes or a bundle of notes he must surrender [them]:1 here too, [is then the reason] because the debtor is pleased that they should be returned to the creditor! - But, said Raba, identification marks are Biblically valid, because it is written, And it shall be with thee until thy brother seek after it. Now, would it then have occurred to you that he should return it to him before he sought it! But [it means this:] examine him [the claimant], whether he be a fraud or not.2 Surely that is by means of identification marks! That proves it.
Raba said: Should you resolve that identification marks are Biblically valid . . . ('Should you resolve!' - but he has proved that they are Biblically valid! - That is because it can be explained as was answered [above].)3 If two sets of identification marks [are offered by two conflicting claimants], it [the lost article] must be left [in custody].4 [If one states] identification marks and [another produces] witnesses, it [the lost article] must be surrendered to him who has witnesses.5 [If one states] identification marks, and [another also states] identification marks and [produces] one witness - one witness is as non-existent, and so it must be left. [If one produces] witnesses of weaving,6 and [another] witnesses of dropping,7 it must be given to the latter, because we argue, He [the first] may have sold, and another lost it. [If one states] its length, and [another] its breadth,8 it must be given to [him who states its] length; because it is possible to conjecture the breadth when its owner is standing and wearing it, whereas the length cannot be [well] conjectured.9 [If one states] its length and breadth, and another its gums,10 it must be surrendered to the former. If the length, breadth, and weight [are stated by different claimants], it must be given to [him who states] its weight.
If he [the husband] states the identification marks of a bill of divorce, and she does likewise,11 it must be given to her.12 Wherewith [is it identified]? Shall we say, by its length and breadth? perhaps she saw it whilst he was holding it!13 - But it had a perforation at the side of a certain letter. If he identifies the ribbon [with which the divorce was tied], and she does likewise, it must be given to her. Wherewith [is it identified]? Shall we say, by [its colour], white or red? perhaps she saw it whilst he was holding it! - Hence, by its length. If he states, [it was found] in a valise, and she states likewise, it must be surrendered to him. Why? She knows full well that he places whatever he has [of his documents] in a valise.14
MISHNAH. NOW, UNTIL WHEN IS HE [THE FINDER] OBLIGED TO PROCLAIM IT? UNTIL HIS NEIGHBOURS MAY KNOW THEREOF: THIS IS R. MEIR'S VIEW. R. JUDAH MAINTAINED: [UNTIL] THREE FESTIVALS [HAVE PASSED], AND AN ADDITIONAL SEVEN DAYS AFTER THE LAST FESTIVAL, GIVING THREE DAYS FOR GOING HOME, THREE DAYS FOR RETURNING, AND ONE DAY FOR ANNOUNCING.15
GEMARA. A Tanna taught: The neighbours of the loss [are referred to in the Mishnah]. What is the meaning of 'the neighbours of the loss?' Shall we say, the neighbours of the loser? But if they know him [who lost it], let them go and return it to him! - But [it means] the neighbours of the vicinity wherein the lost article was found.16
R. JUDAH MAINTAINED etc. But the following contradicts this: On the third day of Marcheshvan17 we [commence to] pray for rain.18 R. Gamaliel said: On the seventh, which is fifteen days after the Festival,19 so that the last [of the pilgrims] in Eretz Yisrael20 can reach the river Euphrates!21 - Said R. Joseph: There is no difficulty. The latter refers to the days of the First Temple, the former [sc. our Mishnah] to the Second. During the First Temple, when the Israelites were extremely numerous, as it is written of them, Judah and Israel were many, as the sand which is by the sea in multitude,22 such a long period was required.23 But during the Second Temple, when the Israelites were not very numerous, as it is written of them, The whole congregation together was forty and two thousand three hundred and threescore,24 such a long time was unnecessary. Thereupon Abaye protested to him: But is it not written, So the priests and the Levites, and the porters, and the singers, and some of the people and the Nethinims, and all Israel, dwelt in their cities?25 and that being so, the logic is the reverse. During the first Temple, when the Israelites were very numerous, the people united [for travelling purposes], and caravan companies were to be found travelling day and night, so long a period was unnecessary, and three days were sufficient. But during the second Temple, when the Israelites were not very numerous, the people did not join together [for travelling], and caravan companies were not available for proceeding day and night, this long period was necessary! - Raba said: There is no difference between the first Temple and the Second: the Rabbis did not put one to unreasonable trouble in respect of a lost article.
Rabina said: This [sc. our Mishnah] proves that when the proclamation was made, [the loss of] a garment was announced.26 For should you think, a lost article was proclaimed [unspecified], another day should have been added to enable one to examine his belongings! Hence it follows that [the loss of] a garment was proclaimed. This proves it. Raba said: You may even say that a mere loss was proclaimed: the Rabbis did not put one to unreasonable trouble in respect of a lost article.
Our Rabbis taught: At the first Festival [of proclamation] it was announced: 'This is the first Festival;' at the second Festival it was announced: 'This is the second Festival;' but at the third a simple announcement was made.27 Why so; let him announce: 'It is the third Festival'? - So that it should not be mistaken for the second.28 But the second, too,
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(1) To the creditor, if he states identification marks; v. supra 20a.
(2) V. supra p. 169 for notes.
(3) Supra p. 169.
(4) It cannot be returned to either. Cf. supra 20a: 'It must lie until Elijah comes.'
(5) Even if identification marks are Biblically valid, yet witnesses stand higher.
(6) That he wove it.
(7) That he dropped it.
(8) This refers to a garment, these measurements being offered as marks of identification.
(9) [The breadth of the cloth out of which a toga was made was worn lengthwise, and the length breadthwise.]
(10) [גמא, the sum total of its length and breadth. The term Gam has been identified with the Greek Gnomon, the carpenter's square, and is derived from the Hebrew gimel, which has the shape of an axe, or carpenter's square. V. B.B. (Sonc. ed.) p. 251, n. 4.]
(11) Each claims ownership, the husband maintaining that he lost it before delivering it to his wife, so that she is still married to him, and now he has changed his mind and no longer wishes to divorce her, whilst the wife insists that she lost it after receiving it, so that she is divorced.
(12) Because the husband's knowledge is no proof of ownership, since he certainly saw it before delivering it to her; but if she had not received it, she would not know its identification marks.
(13) And before delivering it he changed his mind.
(14) Though this does not prove his ownership either, it must nevertheless be surrendered to him, since she cannot be declared free after a valid doubt has arisen.
(15) The three Festivals referred to are Passover, Weeks, and Tabernacles, when Jerusalem was visited by all Israel. This was the practice whilst the Temple stood and some time after; but v. Gemara on this.
(16) And R. Meir's reason is that it is probably theirs.
(17) The eighth month of the year, generally corresponding to mid-October-mid-November.
(18) V. P.B. p. 47.
(19) 'The Festival' without any further designation, always means Tabernacles, which lasted from the 15th to the 22nd of Tishri inclusive, Tishri being the seventh month of the year.
(20) [MS.M.: 'The last of the Israelites (who had come from Babylon)].
(21) Before the rains commence, This shews that a far longer period than three days is necessary to enable every Jew to reach his house.
(22) I Kings IV, 20.
(23) [Owing to the communities being widely scattered.]
(24) Ezra II, 64.
(25) Neh. VII. 73. [So that they thus lived scattered 'in their (former) cities' despite their paucity in numbers.]
(26) I.e., the actual article lost, the claimant having to submit identification marks.
(27) Without stating that it was the third time of proclamation. But the first and second had to be specified, so that the loser should know that he still had a third, and not be compelled to hurry back home.
(28) Through faulty hearing.one might mistake for the first! - In any case, the third is still to come.1
Our Rabbis taught: In former times, whoever found a lost article used to proclaim it during the three Festivals and an additional seven days after the last Festival, three days for going home, another three for returning, and one for announcing.2 After the destruction of the Temple - may it be speedily rebuilt in our own days!3 - it was enacted that the proclamation should be made in the synagogues and schoolhouses. But when the oppressors increased, it was enacted that one's neighbours and acquaintances should be informed, and that sufficed. What is meant by 'when the oppressors increased'? - They insisted that lost property belonged to the king.4
R. Ammi found a purse of denarii. Now, a certain man saw him displaying fear, whereupon he reassured him, 'Go, take it for thyself: we are not persians who rule that lost property belongs to the king.'
Our Rabbis taught: There was a Stone of Claims5 in Jerusalem: whoever lost an article repaired thither, and whoever found an article did likewise. The latter stood and proclaimed, and the former submitted his identification marks and received it back. And in reference to this we learnt: Go forth and see whether the Stone of Claims is covered.6
MISHNAH. IF HE [THE CLAIMANT] STATES THE ARTICLE LOST, BUT NOT ITS IDENTIFICATION MARKS, IT MUST NOT BE SURRENDERED TO HIM. BUT IF HE IS A CHEAT,7 EVEN IF HE STATES ITS MARKS OF IDENTIFICATION, IT MUST NOT BE GIVEN UP TO HIM, BECAUSE IT IS WRITTEN [AND IT SHALL BE WITH THEE] UNTIL THE SEEKING OF THY BROTHER AFTER IT,8 MEANING, UNTIL THOU HAST EXAMINED THY BROTHER WHETHER HE BE A CHEAT OR NOT.9
GEMARA. It has been stated: Rab Judah said: He proclaims. '[I have found] a lost article.' R. Nahman said: He proclaims, '[I have found] a garment'. 'Rab Judah said: He proclaims a lost article,' for should you say that he proclaims a garment, we are afraid of cheats. 'R. Nahman said: He proclaims. a garment'; for 'we do not fear cheats, as otherwise the matter is endless'.10
We learnt: IF HE STATES THE ARTICLE LOST, BUT NOT ITS IDENTIFICATION MARKS, IT MUST NOT BE SURRENDERED TO HIM. Now, if you say that he proclaims a loss, it is well; we are thus informed that though he states that it was a garment, yet since he does not submit its identification marks, it is not returned to him. But if you say that he proclaims a garment, then if one [the finder] states that it was a garment, and the other [the claimant] states likewise, a garment, is it necessary to teach that it is not returned to him unless he declares its marks of identification? - Said R. Safra: After all, he proclaims a garment. [The Mishnah means that] he [the finder] stated [that he had found] a garment, whilst the other [the claimant] submitted identification marks. What then is meant by 'HE DID NOT STATE ITS IDENTIFICATION MARKS'? - He did not state its perfect identification marks.11
BUT IF HE IS A CHEAT, IF HE STATES ITS IDENTIFICATION MARKS, IT MUST NOT BE GIVEN UP TO HIM. Our Rabbis taught: At first, whoever lost an article used to state its marks of identification and take it. When deceivers increased in number, it was enacted that he should be told, 'Go forth and bring witnesses that thou art not a deceiver; then take it'. Even as it once happened that R. papa's father lost an ass, which others found. When he came before Rabbah son of R. Huna, he directed him, 'Go and bring witnesses that you are not a fraud, and take it.' So he went and brought witnesses. Said he to them, 'Do you know him to be a deceiver?' - 'Yes', they replied. 'I, a deceiver!' he exclaimed to them. 'We meant that you are not a fraud,' they answered him. 'It stands to reason that one does not bring [witnesses] to his disadvantage.' said Rabbah son of R. Huna.12
MISHNAH. EVERYTHING [SC. AN ANIMAL] WHICH WORKS FOR ITS KEEP13 MUST [BE KEPT BY THE FINDER AND] EARN ITS KEEP. BUT AN ANIMAL WHICH DOES NOT WORK FOR ITS KEEP MUST BE SOLD, FOR IT IS SAID, AND THOU SHALT RETURN IT UNTO HIM,14 [WHICH MEANS], CONSIDER HOW TO RETURN IT UNTO HIM.15 WHAT HAPPENS WITH THE MONEY? R. TARFON SAID: HE MAY USE IT; THEREFORE IF IT IS LOST, HE BEARS RESPONSIBILITY FOR IT.16 R. AKIBA MAINTAINED: HE MUST NOT USE IT; THEREFORE IF IT IS LOST, HE BEARS NO RESPONSIBILITY.
GEMARA. For ever!17 - Said R. Nahman in Samuel's name: Until twelve months [have elapsed]. It has been taught likewise: As for all animals which earn their keep. e.g., a cow or an ass, he [the finder] must take care of them for twelve months; after that he turns them into money, which he lays by. He must take care of calves and foals three months, sell them and lay the money by. He must look after geese and cocks for thirty days, sell them and put the money by. R. Nahman b. Isaac observed: A fowl ranks as large cattle.18 It has been taught likewise: As for a fowl and large cattle.19 he must take care of them twelve months, then sell them and put the money by. For calves and foals the period is20 thirty days, after which he sells them and lays the money by. Geese and cocks, and all which demand more attention than their profit is worth, he must take care of for three days, after which he sells them and lays the money by. Now this ruling on calves and foals contradicts the former one, and likewise the rulings on geese and cocks are contradictory? - The rulings on calves and foals are not contradictory: the former refers to grazing animals; the latter to those that require feeding stuffs.21 The rulings on geese and cocks are likewise not contradictory: the former refers to large ones, the latter to small.22
BUT AN ANIMAL WHICH DOES NOT WORK FOR ITS KEEP. Our Rabbis taught: And thou shalt return it unto him: deliberate how to return it unto him, so that a calf may not be given as food to other calves, a foal to other foals, a goose to other geese, or a cock to other cocks.23
WHAT HAPPENS WITH THE MONEY? R. TARFON SAID: HE MAY USE IT etc. Now. this dispute is
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(1) Even if a mistake is made, no harm is done.
(2) V. Mishnah.
(3) This phrase has become liturgical.
(4) That was Persian law, which the Jews felt justified in secretly resisting.
(5) [Var. lec., 'Stone of the erring (losses).' On the attempt to localize the stone, v. J. N. Sepp. ZDPV, II, 49.]
(6) So Rashi. Lit., 'is dissolving.' The story is related in Ta'an. 19a of a certain Honi who prayed for rain so successfully that he was asked to reverse his prayer, more than enough having fallen. To which he answered, 'Go forth and see whether the Claimants' Stone is already covered with water, in which case I will pray for the rain to cease.'
(7) I.e., where the claimant is known to be one in general, but v. Gemara on this.
(8) Deut. XXII, 2.
(9) V. p. 169, n. 6.
(10) Even if no particular article is announced, a fraud may claim a certain article at a venture.
(11) I.e., he gave general marks which would cover many garments. [The term 'perfect' is used by R. Safra in a loose sense, cf. supra p. 171. n. 9.]
(12) Therefore the witnesses can withdraw their testimony, though normally this is forbidden. But in this case it is evident that they thought that he had asked, 'Do ye know that he is not a deceiver?' which was the usual form of the question.
(13) Lit., 'does and eats.'
(14) Ibid.
(15) But if the finder keeps it and then charges the loser with its keep, it may exceed its actual worth, and so the return will be a loss.
(16) The advantage that he enjoys in that he may use it makes him a paid bailee.
(17) Surely the finder need not keep the animal indefinitely, even if it does earn its keep!
(18) And must be kept a twelvemonth.
(19) I.e., cows and oxen.
(20) Lit., 'he must take care of them.'
(21) In spring and summer, when the animals graze on natural pasture, they are to be kept three months; but in winter, when feeding stuffs must be bought for them, thirty days are sufficient.
(22) Small ones need more attention, and therefore they are kept only three days. - The translation follows Maim. and R. Han., and is also adopted by the Codes; v. H.M. 267, 24. Rashi reverses it.
(23) I.e., if a number of these is found, it should not be necessary to sell one to provide food for the others, but as soon as they cease to earn their keep they must all be sold.[apparently] only if he [the finder] did use it. But if not, [all would agree] that if it is lost he is free [from responsibility]. Shall we say that this refutes R. Joseph? For it has been stated. A bailee of lost property: Rabbah ruled, he ranks as an unpaid bailee; R. Joseph maintained. as a paid bailee!1 - R. Joseph can answer you. As for theft and loss, all agree that he is responsible. They differ only in respect to [unavoidable] accidents, for which a borrower [alone is responsible]. R. Tarfon holds: The Rabbis permitted him [the finder] to use it, therefore he is a borrower in respect thereto. Whilst R. Akiba holds that the Rabbis did not permit him to use it, therefore he is not a borrower in respect thereto. If so, why does R. Akiba say 'THEREFORE'? For if you agree that they differ concerning theft and loss, it is well; hence it is taught. R. AKIBA MAINTAINED, HE MUST NOT USE IT; THEREFORE IF IT IS LOST HE BEARS NO RESPONSIBILITY. For I might think he is a paid bailee, in accordance with R. Joseph's view, and responsible for theft and loss; hence we are informed, 'THEREFORE' [etc.] i.e., since you say that he may not use it, he is not a paid bailee, nor is he responsible for theft and loss. But if you say that all agree that he is responsible for theft and loss, whilst they differ only in respect of [unpreventable] accidents, for which a borrower [alone is responsible], what is the meaning of R. Akiba's 'THEREFORE'? Surely he [the Tanna] should have stated thus: R. AKIBA MAINTAINED, HE MUST NOT USE IT [and no more]; then I would have known myself that since he may not use it, he is not a borrower, hence not responsible. What then is the need of R. Akiba's 'THEREFORE'?2 - On account of R. Tarfon's 'THEREFORE'.3 And what is the purpose of R. Tarfon's 'THEREFORE'? - He means this: Since the Rabbis permitted him to use it, it is as though he had done so,4 and he is [therefore] held responsible for it. But it is taught, [IF] IT IS LOST!5
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(1) And since a paid bailee is liable for loss, our Mishnah appears to refute R. Joseph.
(2) The question is a straightforward one, though put with a good deal of unnecessary circumlocution. [Rabbinovicz, D.S. a.l. suggests this to be an interpolation of Jehudai Gaon.]
(3) I.e., for the sake of balancing the Mishnah.
(4) Even if he does not use it.
(5) How then can it refer to unpreventable accidents?- It is in accordance with Rabbah; for Rabbah said [elsewhere]: They were stolen by armed robbers: whilst 'lost' means that his ship foundered at sea.1
Rab. Judah said in Samuel's name: The halachah is as R. Tarfon. Rehabah had in his charge an orphan's money. He went before R. Joseph and enquired. 'May I use it?' He replied, 'Thus did Rab Judah say in Samuel's name, The halachah is as R. Tarfon. Thereupon Abaye protested, But was it not stated thereon: R. Helbo said in R. Huna's name: This refers only to the purchase price of a lost article, since he took trouble therein,2 but not to money which was itself lost property:3 and these4 are likewise as lost money? - Go then,' said he to him;5 'they do not permit me to give you a favourable ruling.'
MISHNAH. IF ONE FINDS SCROLLS, HE MUST READ THEM EVERY THIRTY DAYS;6 IF HE CANNOT READ, HE MUST ROLL THEM.7 BUT HE MUST NOT STUDY [A SUBJECT] THEREIN FOR THE FIRST TIME.8 NOR MAY ANOTHER PERSON READ WITH HIM.9 IF ONE FINDS A CLOTH, HE MUST GIVE IT A SHAKING EVERY THIRTY DAYS, AND SPREAD IT OUT FOR ITS OWN BENEFIT [TO BE AIRED], BUT NOT FOR HIS HONOUR.10 SILVER AND COPPER VESSELS MAY BE USED FOR THEIR OWN BENEFIT, BUT NOT [SO MUCH AS] TO WEAR THEM OUT. GOLD AND GLASSWARE MAY NOT BE TOUCHED UNTIL ELIJAH COMES.11 IF ONE FINDS A SACK OR A BASKET, OR ANY OBJECT WHICH IT IS UNDIGNIFIED FOR HIM TO TAKE,12 HE NEED NOT TAKE IT.
GEMARA. Samuel said: If one finds phylacteries in a sack, he must immediately turn them into money [i.e., sell them] and lay the money by. Rabina objected: IF ONE FIND SCROLLS, HE MUST READ THEM EVERY THIRTY DAYS; IF HE CANNOT READ, HE MUST ROLL THEM. Thus, he may only roll, but not sell them and lay the money by! - Said Abaye: phylacteries are obtainable at Bar Habu;13 whereas scrolls are rare.14
Our Rabbis taught: If one borrows a Scroll of the Torah from his neighbour, he may not lend it to another. He may open and read it, providing, however, that he does not study [a subject] therein for the first time; nor may another person read it together with him. Likewise, if one deposits a Scroll of the Torah with his neighbour, he [the latter] must roll it once every twelve months, and may open and read it; but if he opens it in his own interest, it is forbidden. Symmachus said: In the case of a new one, every thirty days; in the case of an old one, every twelve months. R. Eliezer b. Jacob said: In both cases, every twelve months.
The Master said: 'If one borrows a Scroll of the Torah from his neighbour, he may not lend it to another.' Why particularly a Scroll of the Torah: surely the same applies to any article? For R. Simeon b. Lakish said: Here Rabbi has taught that a borrower may not lend [the article he borrowed], nor may a hirer re-hire [to another person]!15 - It is necessary to state it in reference to a Scroll of the Torah. I might have said, One is pleased that a precept be fulfilled by means of his property: therefore we are informed [otherwise].16
'He may open and read it.' But that is obvious! Why else then did he borrow it from him? - He desires to state the second clause: providing, however, that he does not study [a subject] therein for the first time.'
'Likewise, if one deposits a Scroll of the Torah with his neighbour, he [the latter] must roll it once every twelve months, and may open and read it.' What business has he with it?17 Moreover, 'if he opens it in his own interests, It is forbidden; 'but have you not said, 'He may open and read it'! - It means this: If when rolling it he opens and reads it, that is permitted; but if he opens it in his own interests, it is forbidden.
'Symmachus said: In the case of a new one, every thirty days; in the case of an old one, every twelve months. R. Eliezer b. Jacob said: In both cases, every twelve months.' But R. Eliezer b. Jacob is identical with the first Tanna! - But say thus: R. Eliezer b. Jacob said: In both cases, every thirty days.
BUT HE MUST NOT STUDY [A SUBJECT] THEREIN FOR THE FIRST TIME, NOR MAY ANOTHER PERSON READ WITH HIM. But the following contradicts it. He may not read a section therein and revise it, nor read a section therein and translate it.18 He may also not have more than three columns open [simultaneously], nor may three read out of the same volume. Hence two may read! - Said Abaye: There is no difficulty: here the reference is to one subject; there, to two.19
IF ONE FINDS A CLOTH, HE MUST GIVE IT A SHAKING EVERY THIRTY DAYS: Are we to say that a shaking benefits it? But R. Johanan said, He who has a skilled weaver in his house20 has to shake his garment every day!21 - I will tell you: [shaking] every day is injurious, once in thirty days is beneficial thereto. Alternatively, there is no difficulty: this [our Mishnah] refers to [shaking] by one person; the other [R. Johanan's dictum], by two persons.22 Another alternative: this [the Mishnah] refers to [a shaking, i.e., beating] by hand; the other, with a stick.23 Or again, one refers to wool, the other to flax.24
R. Johanan said: A cupful of witchcraft, but not a cupful of tepid water.25 Yet that applies only to a metal utensil, but there is no objection to an earthenware one. And even of a metal utensil, this holds good only if it [the water] is unboiled; but if it is boiled, it does not matter. Moreover, that is only if he throws no spice wood therein; but if he does, there is no objection.
R. Johanan said: If one is left a fortune26 by his parents, and wishes to lose it, let him wear linen garments, use glassware, and engage workers and not be with them. 'Let him wear linen garments' - this refers to Roman linen;27 'use glassware' - Viz., white glass;28 'and engage workers and not be with them' - refer this
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(1) These are unpreventable. v. infra 43a.
(2) Before selling it he had to look after it for a certain time; therefore he is now privileged to use the money.
(3) If one finds money, so disposed that he is bound to announce it (v. supra 24b) he may not use it whilst waiting for the owner to claim it, since it needs neither care nor attention.
(4) Sc. the orphan's coins.
(5) R. Joseph to the disciple.
(6) If left unused longer, they become mouldy and moth eaten.
(7) To give them an airing.
(8) The long poring over the scroll and its consequent handling injured it.
(9) Since each unconsciously pulls the scroll to himself, the scroll is injured.
(10) To use as a tablecloth or bedspread.
(11) I.e., the finder must not use them at all, since they do not deteriorate.
(12) Lit., 'which it is not his way to take.'
(13) Pr. n. a writer of phylacteries and mezuzoth, also mentioned in Ber. 53b. and Meg. 18b. - I.e., they are easily bought, and so their owner loses nothing when the finder sells them.
(14) Lit., 'not found.'
(15) 'Here' refers to a Mishnah in Git. (29a) from which Resh Lakish deduced this.
(16) But the same certainly applies even with greater force to other articles.
(17) It was assumed that he may open and read it for his own purpose, since it was already taught once that he rolls it every twelve months for its own benefit; but how may one use a bailment in his own interests?
(18) Into the vernacular, which, in the case of Palestinian Jewry, was probably Aramaic; v. J.E. VI, 308.
(19) Rashi: two people may not read the same subject, because each pulls the Scroll to himself; but they may read two different subjects (in different columns), as each concentrates on his own; Maim. reverses it.
(20) Regularly engaged in weaving.
(21) Because of the fluff caused by the weaver. This shews that one shakes his garment only when he must.
(22) In which case each pulls it and strains the material.
(23) That is harmful.
(24) Rashi: a beating harms woollen garments, as it stretches them, but not linen garments. - But the order of the Gemara would seem to reverse it, 'the one . . . the other' referring to the Mishnah and R. Johanan respectively, and Maim. and others do in fact reverse it. Possibly linen garments or cloths were more delicately made in those days, or were otherwise weaker than woolens.
(25) One had better drink the former than the latter.
(26) Lit., 'much money.'
(27) [I.e., manufactured, not grown, in Rome; v. Krauss, op. cit. I, 537.]
(28) Which was rare and costly. [On the difficulty of the process for producing colourless glass among the ancients, v. Krauss, op. cit. II, 286.]to [workers with] oxen, who can cause much loss.1
AND SPREAD IT OUT FOR ITS OWN BENEFIT, BUT NOT FOR HIS HONOUR. The scholars propounded: What if it is for their mutual benefit?2 - Come and hear: HE MAY SPREAD IT FOR ITS OWN BENEFIT; this proves, only for its own benefit, but not for their mutual benefit! - Then consider the second clause: BUT NOT FOR HIS HONOUR; thus, it is forbidden only for his own honour, but permitted for their mutual benefit! Hence no inference can be drawn from this.
Come and hear: He may not spread it [a lost article] upon a couch or a frame for his needs, but may do so in its own interests. If he was visited by guests, he may not spread it over a bed or a frame, whether in his interests or in its own!3 - There it is different, because he may thereby destroy it,4 either through an [evil] eye or through thieves.
Come and hear: If he took it [the heifer] into the team5 and it [accidentally] did some threshing, it is fit;6 [but if it was] in order that it should suck and thresh, it is unfit.7 But here it is for their mutual benefit, and yet it is taught that it is unfit! - There it is different, because Scripture wrote, which hath not beets wrought with - under any condition. If so, the same should apply to the first clause too?8 This [then] can only be compared to what we learnt: If a bird rested upon it [the red heifer] - it remains fit;9 but if it copulated with a male, it becomes unfit.10 Why so? - In accordance with R. Papa's dictum. For R. papa said: Had Scripture written 'ubad,11 and we read it 'ubad, I would have said [that the law holds good] even if it were of itself;12 whilst if it were written 'abad,13 and we read it 'abad, I would have said, [it becomes unfit] only if he himself wrought with it. Since, however, it is written 'abad [active], whilst read 'ubad [passive],14 we require that 'it was wrought with' shall be similar to 'he wrought with it';15 just as 'he wrought [with it]' must mean that he approved of it, so also 'it was wrought with' refers only to what he approved.16
SILVER AND COPPER VESSELS MAY BE USED, etc. Our Rabbis taught: If one finds wooden utensils he may use them - to prevent them from rotting; copper vessels - he may use them with hot [matter], but not over the fire, because that wears them out; silver vessels, with cold [matter], but not with hot, because that tarnishes them; trowels and spades, on soft [matter], but not on hard, for that injures them; gold and glassware, [however], he may not touch until Elijah comes. Just as they [the Sages] ruled in respect of lost property, so also with reference to a bailment. What business has one with a bailment?17 - Said R. Adda b. Hama in R. Shesheth's name: This treats of a bailment the owner of which has gone overseas.
IF ONE FINDS A SACK OR A BASKET, OR ANY OBJECT WHICH IT IS NOT DIGNIFIED FOR HIM TO TAKE, HE NEED NOT TAKE IT. How do we know this? - For our Rabbis taught: And thou shalt hide thyself:18 sometimes thou mayest hide thyself, and sometimes not. E.g., if one was a priest, whilst it [the lost animal] was in a cemetery; or an old man, and it was inconsistent with his dignity [to lead the animal home]; or if his own [work] was more valuable than his neighbour's19 - therefore it is said, and thou shalt hide thyself.20 In respect of which [of these instances] is the verse required? Shall we say, in respect of a priest when it [the lost animal] is in a cemetery? - but that is obvious: one is a positive, whereas the other is a negative and a positive injunction, and a positive injunction cannot set aside a negative together with a positive injunction?21 Moreover, a ritual prohibition cannot be abrogated on account of money!22 If, again, [it is required] where 'his own [work] was more valuable than his neighbour's' - that may be inferred from Rab Judah's dictum in Rab's name, for Rab Judah said in the name of Rab: Save that
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(1) Either by failing to plough up the land properly, so that the subsequent crop is a poor one (Tosaf.), or through carelessly driving the ox carts over the crops when engaged in reaping or vintaging, and so causing damage both to oxen and plants (Rashi).
(2) Lit., 'for its purpose and for his purpose?'
(3) Pes. 26b. Thus proving that he may not use it for their mutual benefit.
(4) Lit., 'burn it.'
(5) Of three or four cows used for threshing; his purpose was that it should suck.
(6) To be used to make atonement for a murder by an unknown person. V. Deut. XXI, 1-9. The heifer had to be one 'which hath not been wrought with, and which hath not drawn in the yoke' (v. 3). Though this heifer had done some threshing, it remains fit, because it had been taken into the team to feed, not to thresh.
(7) Pes. 26b.
(8) Though not intending that it should thresh, it nevertheless ought to become disqualified.
(9) And is not disqualified on the score that it has been put to some use.
(10) Parah II, 4.
(11) עובד passive. 'was wrought with.'
(12) I.e., even if it 'was wrought with' entirely without its owners volition.
(13) עבד active, 'with which he (the owner) had not wrought.'
(14) [==M.T. עבד The form is thus taken as passive Kal not Pu'al, v. Ges. K. ¤ 52e.]
(15) I.e., though it may have been put to work without the knowledge of its master, it shall nevertheless be only such work as its master would have approved.
(16) Now, if a bird rests on it, the master does not approve, since he derives no benefit; but he does derive benefit from its copulation. Similarly, if he takes it into the team and it accidentally does some threshing, he does not benefit thereby, as the team itself would have sufficed. Therefore it is not invalidated, unless that was his express purpose.
(17) How can there be a question of using a bailment? Let its owner come and use it to prevent it from rotting or otherwise being injured through disuse!
(18) Deut. XXII, 2. The beginning of the verse reads, Thou shalt not see thy brother's ox or his sheep go astray. In the exegesis that follows, it is assumed that the 'not' may or may not refer to 'and thou shalt hide thyself' according to circumstances.
(19) I.e., the value of the time he would lose in returning it exceeded that of the lost animal.
(20) Sanh. 18b.
(21) It is a positive command to return lost property, viz., thou shalt restore them unto thy brother; whereas a priest is forbidden to defile himself through the dead both by a positive command - They shall be holy unto their God (Lev. XXI, 6) - and a negative one - Speak unto the priests the sons of Aaron and say unto them, There shall none be defiled for the dead among his people (ibid. 1).
(22) The returning of lost property is after all only a monetary matter.there shall be no poor among you:1 [this teaches,] thine takes precedence over all others!2 - Hence [it is needed] in respect of an old man for whom it is undignified [to return the lost article].
Rabbah said: If he [the old man] smote it [the lost animal], he is [henceforth] under an obligation in respect thereof.3 Abaye was sitting before Rabbah when he saw some [lost] goats standing. whereupon he took a clod and threw it at them. Said he [Rabbah] to him, 'You have thereby become bound in respect of them. Arise and return them.'
The scholars propounded: What if it is dignified for one to return [a lost animal] in the field, but not in town? Do we say, a complete return is required, and since it is undignified for him to return it in town, he has no obligation at all; or perhaps, in the field at least he is bound to return it, and since he incurs the obligation in the field, he is likewise obligated in town?4 The question stands.
Raba said: Where one would lead back his own, he must lead back his neighbour's too. And where one would unload and load his own, he must do so for his neighbour's.5
R. Ishmael son of R. Jose was walking on a road when he met a man carrying a load of faggots. The latter put them down, rested, and then said to him, 'Help me to take them up.' 'What is it worth?' he enquired. 'Half a zuz,' was the answer. So he gave him the half zuz and declared it hefker.6 Thereupon he [the carrier] re-acquired it.7 He gave him another half zuz and again declared it hefker. Seeing that he was again about to re-acquire it, he said to him, 'I have declared it hefker for all but you.' But is it then hefker in that case? Have we not learnt: Beth Shammai maintain, hefker for the poor [only] is valid hefker; whilst Beth Hillel rule, It is valid only if declared hefker for the poor and the rich, as the year of release.8 - But R. Ishmael son of R. Jose did in fact render it hefker for all; and he stopped the other [from taking possession again] by mere words. Yet was not R. Ishmael son of R. Jose an elder for whom it was undignified [to help one to take up a load]?9 - He acted beyond the requirements of the law. For R. Joseph learnt: And thou shalt shew them10 - this refers to their house of life;11 the way - that means the practice of loving deeds;12 they must walk - to sick visiting; therein - to burial;13 and the work - to strict law; that they shall do - to [acts] beyond the requirements of the law.14
The Master said: 'they must walk - this refers to sick visiting.' But that is the practice of loving deeds! - That is necessary only in respect of one's affinity.15 For a Master said: A man's affinity takes away a sixtieth of his illness: yet even so, he must visit him 'Therein to burial.' But that [too] is identical with the practice of loving deeds? - That is necessary only in respect of an old man for whom it is undignified.16 'That they shall do - this means [acts] beyond the requirements of the law.' For R. Johanan said: Jerusalem was destroyed only because they gave judgments therein in accordance with Biblical law. Were they then to have judged in accordance with untrained arbitrators?17 - But say thus: because they based their judgments [strictly] upon Biblical law, and did not go beyond the requirements of the law.
MISHNAH. WHAT IS LOST PROPERTY? IF ONE FINDS AN ASS OR A COW FEEDING BY THE WAY, THAT IS NOT CONSIDERED A LOST PROPERTY; [BUT IF HE FINDS] AN ASS WITH ITS TRAPPINGS OVERTURNED, OR A COW RUNNING AMONG THE VINEYARDS, THEY ARE CONSIDERED LOST. IF HE RETURNED IT AND IT RAN AWAY, RETURNED IT AND IT RAN AWAY, EVEN FOUR OR FIVE TIMES, HE IS STILL BOUND TO RESTORE IT, FOR IT IS WRITTEN, THOU SHALT SURELY RESTORE THEM.18 IF HIS LOST TIME IS WORTH S SELA', HE MUST NOT DEMAND, GIVE ME A SELA',' BUT IS PAID AS A LABOURER. IF A BETH DIN IS PRESENT, HE MAY STIPULATE IN THEIR PRESENCE;19 BUT IF THERE IS NO BETH DIN BEFORE WHOM TO STIPULATE, HIS OWN TAKES PRECEDENCE.20
GEMARA. And all these that were mentioned already - are they then not lost property?21 - Said Rab Judah: It means this: What is the general principle of lost property for which one is responsible?22 IF ONE FINDS AN ASS OR A COW FEEDING BY THE WAY, THAT IS NOT CONSIDERED LOST PROPERTY, and he bears no responsibility toward it: [BUT IF HE FINDS] AN ASS WITH ITS TRAPPINGS OVERTURNED, OR A COW RUNNING AMONG THE VINEYARDS, THEY ARE CONSIDERED LOST, and he is bound [to return it]. And for ever?23 - Said Rab Judah in Rab's name: Up to three days.24 How so? If [he sees it] at night, even a single hour [shews that it is lost]; if by day, even if it is there longer, it is still [not proof it is lost]! - This arises only if it was seen either before daybreak or at twilight; now, for three days we assume that it is mere chance that it went forth [at these unusual hours]; but if more, it is certainly lost.
It has been taught likewise: If one finds a garment or a spade
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(1) Deut, XV, 4.
(2) Regarding the verse as an exhortation against bringing oneself to poverty.
(3) To return it. By smiting it to make it go in a certain direction he commences the work of returning it, and therefore must complete it.
(4) On the principle of the preceding dictum.
(5) V. Deut. XXII, 4, which is interpreted as meaning that one must help his neighbour to load or unload his animals. Here too he is exempt if it is inconsistent with his dignity, and Raba observes that the test is whether he would do this for his own.
(6) 'Ownerless.'
(7) And again asked R. Ishmael to help him.
(8) Pe'ah VI, 1; 'Ed. IV. 3. Produce acquired from hefker was exempt from tithes. If, however, it was only partially declared hefker i.e., for the poor alone, Beth Shammai and Beth Hillel dispute whether that is valid. Since in all cases of dispute between these two academies the halachah was according to Beth Hillel, we see that partial hefker is invalid; hence R. Ishmael's declaration was illegal. - The seventh year was called the year of release (shemittah), and its crops were free to all; v. Lev. XXV, 1-7.
(9) Why then pay him off?
(10) Ex. XVIII, 20.
(11) Rashi: i.e., industry and trade, the means of a livelihood. In B.K. 100a Rashi refers it to study, the life of the Jew.
(12) This is the literal translation of the phrase, gemiluth hasadim. It is sometimes translated, 'the practice of charity,' but that is inexact. Every act of kindness is regarded as done out of one's love for his fellow beings. [V. Abrahams, I., C.P.B. p. XIII. The inner meaning of the phrase is, 'making good.' 'requiting' - a making good to man for goodness of God, and it is connected with tenderness and mercy to all men and all classes; cf. J. Pe'ah IV.]
(13) To give burial to the poor who cannot pay for it. Directly arising out of this teaching, the Burial Societies (chevra kaddisha - 'holy society') have always formed an important part of Jewish communal organization.
(14) Lit., 'within the line of judgment;' v. B.K. (Sonc. ed.) p. 584, n. 2.
(15) V. p. 171. n. 1.
(16) Yet even he must take part in burial.
(17) [מגיזתא from גוז, 'to cut,' 'to decide;' so Jast. Cf. however B.K. (Sonc. ed.) p. 671, n. 10.]
(18) Deut. XXII, 1. השב תשיבם; the doubling of the verb - the usual idiom for emphasis - intimates that one is bound to return the same article many times, if necessary.
(19) Any three people constitute a Beth din, and the finder may stipulate before them that if he returns the article he shall be paid for lost time according to what he himself could earn; then he can claim his loss in full.
(20) And he is not bound to return the article at all and involve himself in loss.
(21) The article mentioned in the previous Mishnahs were all examples of lost property; why then state here 'WHAT IS LOST PROPERTY? as though the previous ones were not?
(22) I.e., how may one recognise whether a particular article is lost or intentionally placed there by its owner?
(23) Can one say that no matter how long an animal is seen grazing by the way it was intentionally placed there?
(24) But if there longer, it must be assumed lost.on a road, or a cow running among the vineyards it is lost property. [But if he finds] a garment at the side of a wall, or a spade at the side of a wall, or a cow grazing among the vineyards, it is not considered lost; yet [if he sees it] three consecutive days, it is lost. If one sees water overflowing [its banks] and proceeding [onwards], he must put up a wall1 before it.2
Raba3 said: [And so shalt thou do] with all lost things of thy brother's:4 this is to include the loss of real estate. R. Hananiah observed to Raba:5 It has been taught in support of you: If one sees water overflowing [its banks] and proceeding [onwards], he must put up a wall before it.6 As for that, he replied, it does not support [me]: What are the circumstances here? When there are sheaves [on the field].7 But if it contains sheaves, why state it?8 - It is necessary [to state it only] when it contains sheaves which [still] need the soil. I might think, since they need the soil, they are as the soil itself:9 therefore we are informed [otherwise].
IF ONE FINDS AN ASS OR A COW, etc. This is self-contradictory. You say. IF ONE FINDS AN ASS OR A COW FEEDING BY THE WAY, IT IS NOT CONSIDERED LOST PROPERTY: hence, only when feeding by the way are they not [regarded as] lost; but if running on a road, or feeding among the vineyards, they are considered lost! Then consider the second clause: [BUT IF HE FINDS] AN ASS WITH ITS TRAPPINGS OVERTURNED, OR A COW RUNNING AMONG THE VINEYARDS, THEY ARE CONSIDERED LOST; hence, only if running among the vineyards are they lost; but if running on the road, or feeding among the vineyards. they are not lost! - Said Abaye: His companion telleth it concerning him:10 he [the Tanna] mentions feeding by the way, that it is not a lost animal, and the same applies to [a cow] feeding among the vineyards. He states that if running among the vineyards, it is lost, and the same holds good if it was running on the road. Raba said to him, if 'his companion telleth it of him,' let the lighter aspects be taught, from which the graver ones would follow a fortiori. [Thus:] Let him [the Tanna] teach that if it was running on the road it is considered lost; how much more so if running among the vineyards! And let him teach that when feeding among the vineyards it is not considered lost; how much more so when feeding by the way! - But. said Raba, the two statements on 'running'11 are not contradictory: in the one case its face is towards the field; in the other, towards the town.12 The two statements on 'feeding' are likewise not contradictory: the one treats of the loss of itself;13 the other of the loss of the soil. [Thus:] when he [the Tanna] teaches that if it is FEEDING BY THE WAY. THAT IS NOT CONSIDERED LOST PROPERTY, implying that if it is feeding among the vineyards there is a loss, the reference is to the loss of the soil.14 And when he teaches that if it is running among the vineyards there is a case of loss, implying that if it is feeding among the vineyard there is none, the reference is to the loss of itself;13 for when running among the vineyard it becomes lacerated, but not when feeding among the vineyards.15 Now, if it is feeding among the vineyards, granted that it does not become lacerated, yet it should be necessary [to expel it] on account of the loss of the soil! - This refers to a heathen's16 [vineyard]. Yet should it be necessary [to drive it out] on account of its own loss, lest they [the heathens] kill it? - This refers to a place where a warning is first given,17 and only then is it slain. But perhaps a warning has already been given on its account? - If they gave warning, and care was not taken thereof [to prevent it from trespassing], it certainly ranks as a self-inflicted loss.18
IF HE RETURNED IT AND IT RAN AWAY, RETURNED IT AND IT RAN AWAY, etc. One of the Rabbis said to Raba, Perhaps 'hasheb'19 indicates once; 'teshibem'20 denotes twice? - He replied. 'hasheb' implies even a hundred times. As for 'teshibem', I know only [that he must return them] to his [the owner's] house; how do I know [that he can return them to] his garden or his ruins? Therefore Scripture writes, 'teshibem', implying, in all circumstances. How so? If they [the garden or ruins] are guarded, is it not obvious? Whilst if not, why [can one return them thither]? - In truth, it means that they are guarded, but we are informed this, viz., that the owner's knowledge is not required.21 In accordance with R. Eleazar, who said: All require the owner's knowledge,22 excepting in the case of the return of lost property, since Scripture extended the law to many forms of return.23
[If a bird's nest chance to be before thee in the way in any tree, on the ground, whether they be young ones, or eggs, and the dam sitting upon the young, or upon the eggs, thou shalt not take the dam with the young:] But shaleah teshalah [thou shalt surely let go] the dam etc.:24 let us say that shaleah means once, teshalah twice?25 - He replied, shaleah implies even a hundred times. As for teshalah: I know [this law] only [when the bird is required] for a permissive purpose;26 how do I know it when it is required for the fulfilment of a precept?27 Therefore Scripture writes,'teshalah', implying under all circumstances.
One of the Rabbis said to Raba: [Thou shalt not hate thy brother in thine heart:] hokeah tokiah [thou shalt surely rebuke] thy neighbour.28 Perhaps hokeah means once, tokiah twice? - He replied, hokeah implies even a hundred times. As for tokiah: I know only that the master [must rebuke] the disciple: whence do we know that the disciple [must rebuke] his master? From the phrase. 'hokeah tokiah', implying under all circumstances.
[If thou see the ass of him that hateth thee lying under its burden and wouldst forbear to help him,] thou shalt surely29 help with him.30 [From this] I know it only if the owner is with it; whence do I know [the law] if its owner is not with it? From the verse, 'thou shalt surely help with him' - in all circumstances.
[Thou shalt not see thy brother's ass or his ox fall down by the way, and hide thyself from them:] thou shalt surely help him to lift them up again:31 [From this] I know it only if the owner is with it; whence do I know [this law] if the owner is not with it? From the verse, 'thou shalt surely help him to lift them up again'.
Now, why must both unloading and loading be stated? - Both are necessary. For had Scripture mentioned unloading [only], I would have thought, that is because it entails suffering of dumb animals and financial loss;32 but as for loading, where neither suffering of dumb animals nor financial loss is involved,33 I might have thought that one need not [help], Whilst had we been informed in respect of loading, [I would have thought, that is] because it is remunerated;34 but unloading, which is unremunerated,35 I would have thought one need not [help]. Thus both are required. But on R. Simeon's view that loading too is without remuneration, what can you say? - In R. Simeon's view the verses are not explicit.36
Why need these two be written and also [the return of] the lost [animal]? - They are all needed. For had Scripture written these two [only]. [I would think it was] because they entail the suffering of both the owner and itself [sc. the animal]; but as for a lost [animal], which causes grief to the owner but not to itself, [the law] would not apply.37 And if we were informed this of a lost animal, [I would think it was] because the owner is not with it;38
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(1) I.e., any obstacle to hinder its progress.
(2) That too falls within the category of restoring lost property - i.e., one must take the necessary steps to prevent loss.
(3) [MS.M. 'Rabbah.']
(4) Ibid, 3,
(5) [MS.M.: 'Rabbah,' cf. supra 6b.]
(6) He assumed that its purpose was that the soil should not become waterlogged.
(7) Hence they must be saved, but it is possible, as far as the Baraitha is concerned, that one is not bound to save land.
(8) For it is then obvious.
(9) And therefore, on the hypothesis stated in n. 9, do not need saving.
(10) Job XXXVI, 33; (E.V.: the noise thereof sheweth concerning it), i.e., each clause illumines the other.
(11) I.e., the explicit ruling in the second clause, and the implicit ruling in the first.
(12) If running on the road townwards, it must have been set in that direction, and is therefore not lost. If running forestwards, it is lost.
(13) I.e., of the animal.
(14) I.e., an animal feeding in vineyards causes damage. and therefore must be expelled. - Abedah (אבידה) means both a lost article and a loss.
(15) Thus on Raba's interpretation the Mishnah does not give a definition of what animal is to be regarded as lost, but treats of losses which the onlooker must prevent.
(16) V. supra p. 149. n. 6.
(17) To the owners, that the animal is trespassing.
(18) The owner is himself responsible for his loss.
(19) Inf. of the verb, meaning 'to restore.'
(20) 'Thou shalt restore then.'
(21) When lost property is returned, it is unnecessary to inform the owner.
(22) A thief, robber, or bailee, when returning the article stolen or left in his charge, must inform the owner; otherwise he remains responsible in the case of mishap.
(23) I.e., providing it is returned, it does not matter how.
(24) Deut. XXII, 6, 7: the Heb. lit., 'to let go thou shalt let go'; v. p. 192. n. 5.
(25) But if the dam returns after being sent away twice, one may take both it and the young.
(26) I.e., for food.
(27) E.g., as a leper's sacrifice (v. Lev. XIV. 4): how do I know that even then the dam must not be taken?
(28) Lev. XIX. 17; cf. n. 1.
(29) This is expressed in Hebrew by the inf.
(30) Ex. XXIII, 5; this is an exhortation to help to unload the animal.
(31) Deut. XXII. 4. Cf. n. 1.
(32) As a result of the depreciation of the animal if it is not unloaded.
(33) V. infra p. 20.
(34) Though the passer-by is bound to help in the loading, he must be paid for his services.
(35) V. infra 32a.
(36) It is not clear which refers to unloading and which to loading. Therefore, had there been only one verse, I would have taken it to refer to one or the other, but not to both.
(37) I.e., there is no need to trouble to return it.
(38) Hence, since it is quite helpless, the passer-by is called upon to render assistance by restoring it.but as for these two, seeing that their master is with them, [the law would] not [apply]: thus both are necessary.
He that smote him shall surely be put to death:1 I know only [that he is to be executed] by the mode of death prescribed in his case: whence do I know that if you cannot execute him with the death prescribed for him, you may slay him with any death you are able? From the verse, 'He shall surely be put to death', meaning under all circumstances.
Thou shalt surely smite [the inhabitants of that city with the edge of the sword]:2 I know only [that you may execute them] with the death3 that is prescribed in their case. Whence do I know that if you cannot slay them with the death that is prescribed in their case, you may smite them in any manner you are able? From the verse, 'Thou shalt surely smite', implying under all circumstances.
Thou shalt surely return [the pledge unto him when the sun goeth down]:4 from this I know it [sc. that the pledge must be returned] only if he [the creditor] distrained with the sanction of the court;5 whence do we know if of one who distrained without the sanction of the court? From the verse, Thou shalt surely return it - implying in all cases.
If thou at all6 take to pledge [thy neighbour's raiment, thou shall deliver it to him by that the sun goeth down]:7 from that I know it [sc. that the pledge must be returned] only if he [the creditor] distrained with sanction [of the court]; whence do we know it of one who distrained without sanction [of the court]? Because it is stated, If thou at all take to pledge, implying in all cases. And for what purpose are both of these verses necessary?8 - One refers to day raiment, the other to night clothes.9
Thou shalt surely open [thy hand unto thy brother, to thy poor, etc.].10 I know this only of the poor of thine own city:11 whence do I know it of the poor of another city? - From the expression, 'Thou shalt surely open', implying, in all cases.
Thou shalt surely give [him]:12 I know only that a large sum must be given;13 whence do I know that a small sum too must be given?14 From the expression, Thou shalt surely give - in all circumstances.
Thou shalt furnish him liberally.15 I know only that if the house [of the master] was blessed for his [the slave's] sake,16 a present must be made. Whence do we know it even if the house was not blessed for his sake? Scripture teaches, 'Thou shalt furnish him liberally'17 under all circumstances. But according to R. Eleazar b. 'Azariah, who maintained: If the house was blessed for his sake, a present is made to him, but not otherwise; what is the purpose of 'ta'anik'?18 - The Torah employs19 human phraseology.20
And thou shalt surely lend him [sufficient for his need].21 I know this only of one [a poor man] who has nought and does not wish to maintain himself [at your expense];22 then Scripture saith. Give him by way of a loan. Whence do I know it if he possesses his own but does not desire to maintain himself [at his own cost]? From the verse, 'Thou shalt surely lend him'.23 But according to R. Simeon, who maintained: If he has his own but refuses to maintain himself [therewith], we are under no obligation toward him, why state 'surely?'24 - The Torah employs human phraseology.
IF HIS LOST TIME IS WORTH A SELA', HE MUST NOT DEMAND, GIVE ME A SELA',' BUT IS PAID AS A LABOURER. A Tanna taught: He must pay him as an unemployed labourer. What is meant by 'an unemployed labourer?' - As a labourer unemployed in his particular occupation.25
'IF A BETH DIN IS PRESENT, HE MAY STIPULATE IN THEIR PRESENCE. Issur and R. Safra entered into a business partnership. Then R. Safra went and divided it [the stock] without Issur's knowledge in the presence of two people. When he came before Rabbah son of R. Huna,26 he said to him, 'Go and produce the three people in whose presence you made the division; or else
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(1) Num. XXXV, 21.
(2) With reference to an idolatrous city. Deut. XIII, 16.
(3) Lit., 'smiting'.
(4) Ibid. XXIV, 13.
(5) V. infra 113a.
(6) This also is expressed in the Hebrew by the inf.
(7) Ex. XXII. 25.
(8) Since they both state the same law.
(9) Deut. XXIV, 13 to the former; Ex. XXII, 25 to the latter. Cf. infra 114b.
(10) Deut. XV, 11.
(11) As implied by thy poor.
(12) Ibid. 10. The reference is to money lent before the year of release.
(13) Maharsha: because 'give' connotes something of value
(14) If one cannot lend much.
(15) Ibid. 24; this refers to the parting gifts made to a slave on his attaining his freedom.
(16) Because the verse ends: as the Lord thy God hath blessed thee thou shalt give unto him.
(17) V. supra note 2.
(18) 'Thou shalt furnish', i.e., the repetition of the verb.
(19) Lit., 'speaks with'.
(20) And that repetition is normal.
(21) Ibid. 8: i.e., one must lend a poor man for his requirements.
(22) I.e., he does not want charity; hence Scripture orders that a loan shall be made to him.
(23) Even then one must lend, and claim the return of his money after the borrower's death. This is the explanation in Keth. 67b.
(24) v. p. 195. n. 2.
(25) Lit., 'as a labourer unemployed in that work from which he was disturbed' (by having to return the lost article) and willing to take less for the lighter task of restoring lost property than for his usual more arduous occupation; cf. p. 398. n. 2.
(26) For confirmation of his division, which was in order to dissolve their partnership.two out of the three,1 or else two witnesses that you did divide in the presence of three [others].'2 'How do you know this?' he asked him.3 - He replied. 'Because we learnt. IF A BETH DIN IS PRESENT, HE MAY STIPULATE IN THEIR PRESENCE; BUT IF THERE IS NO BETH DIN BEFORE WHOM TO STIPULATE, HIS OWN TAKES PRECEDENCE.'4 'What comparison is there?' he retorted. 'In that case, Seeing that money is being taken from one and given to another, a Beth din is needed;5 but here I took my own, and mere proof [is required that I shared fairly]; hence two are sufficient. In proof thereof we learnt: A widow may sell [of her deceased husband's estate] without the presence of Beth din!'6 - Said Abaye to him, 'But was it not stated thereon: R. Joseph b. Manyumi said in R. Nahman's name: A widow does not need a Beth din of ordained scholars, but a Beth din of laymen is necessary?'
MISHNAH. IF HE FINDS IT [AN ANIMAL] IN A STABLE, HE HAS NO RESPONSIBILITY TOWARD IT [TO RETURN IT];7 IN THE STREET, HE IS OBLIGED [TO RETURN IT]. BUT IF IT IS IN A CEMETERY, HE MUST NOT DEFILE HIMSELF FOR IT.8 IF HIS FATHER ORDERS HIM TO DEFILE HIMSELF, OR SAYS TO HIM, 'DO NOT RETURN [IT].' HE MUST NOT OBEY HIM. IF ONE UNLOADS AND LOADS, UNLOADS AND LOADS, EVEN FOUR OR FIVE TIMES, HE IS [STILL] BOUND [TO DO IT AGAIN], BECAUSE IT IS WRITTEN, THOU SHALT SURELY HELP [WITH HIM].9 IF HE [THE OWNER OF THE ANIMAL] WENT, SAT DOWN AND SAID [TO THE PASSER-BY], 'SINCE THE OBLIGATION RESTS UPON YOU, IF YOU DESIRE TO UNLOAD, UNLOAD:' HE [THE PASSER-BY] IS EXEMPT, BECAUSE IT IS SAID, 'WITH HIM'; YET IF HE [THE OWNER] WAS OLD OR INFIRM HE IS BOUND [TO DO IT HIMSELF]. THERE IS A BIBLICAL PRECEPT TO UNLOAD, BUT NOT TO LOAD. R. SIMEON SAID: TO LOAD UP TOO. R. JOSE THE GALILEAN SAID: IF IT [THE ANIMAL] BORE MORE THAN HIS PROPER BURDEN, HE [THE PASSER-BY] HAS NO OBLIGATION TOWARDS HIM [ITS OWNER], BECAUSE IT IS WRITTEN, [IF THOU SEE THE ASS OF HIM THAT HATETH THEE LYING] UNDER ITS BURDEN, WHICH MEANS, A BURDEN UNDER WHICH IT CAN STAND.
GEMARA. Raba said: The STABLE referred to is one which neither causes [the animal] to stray nor is it guarded.10 It does not cause it to stray: since it is taught: HE HAS NO RESPONSIBILITY TOWARDS IT [TO RETURN IT]; nor is it guarded, since it is necessary to teach HE HAS NO RESPONSIBILITY TOWARD IT. For should you think that it is guarded: Seeing that if he finds it outside he takes it inside;11 if he finds it inside, is it necessary to state [that he is not bound to return it]? But it must follow that it is unguarded. This proves it.
IF HE FINDS IT IN A STABLE, HE HAS NO RESPONSIBILITY TOWARD IT. R. Isaac said: Provided that it is standing within the tehum.12 Hence it follows that [if he finds it] in the street, even within the tehum, he is still bound [to return it]. Others refer this to the second clause, IN THE STREET, HE IS OBLIGED [TO RETURN IT]. R. Isaac observed: Providing that it is standing within the tehum: hence it follows that [if he finds it] in a stable, even without the tehum, he is still under no obligation.
IF IT IS IN A CEMETERY, HE MUST NOT DEFILE HIMSELF FOR IT. Our Rabbis taught: Whence do we know that if his father said to him, 'Defile yourself', or 'Do not return it', he must disobey him? Because it is written, Ye shall fear every man his mother, and his father, and keep my Sabbaths: I am the Lord your God13 - ye are all bound to honour Me.14
Thus, the reason is that Scripture wrote, ye shall keep my Sabbaths;15 otherwise, however, I would have said that he has to obey him.16 But why so? One is a positive command, and the other is both a positive and a negative command,17 and a positive command cannot supersede [combined] positive and negative commands! - It is necessary. I might think, Since the honour due to parents is equated to that due to the Omnipresent, for it is said, Honour thy father and thy mother;18 whilst elsewhere it is said: Honour the Lord with thy substance;19 therefore he must obey him. Hence we are informed that he must not obey him.
THERE IS A BIBLICAL PRECEPT TO UNLOAD, BUT NOT TO LOAD. What is meant by - 'BUT NOT TO LOAD'? Shall we say, not to load at all: wherein does unloading differ, because it is written, Thou shalt surely help him?20 Yet in respect to loading, too, it is said, thou shalt surely help him to lift them up again!21 But [it means this:] It is a Biblical obligation to unload without remuneration, but not to load without payment, save only for remuneration. R. Simeon said: To load too without payment.
We have [thus] learnt here what our Rabbis taught: Unloading [must be done] without pay; unloading, for pay. R. Simeon said: Both without payment. What is the reason of the Rabbis? - For should you think it is as R. Simeon: let Scripture state loading, and unloading becomes unnecessary; for I would reason: If one is bound to load, though no suffering of dumb animals nor financial loss is involved;22 how much more so unloading, seeing that both suffering of dumb animals and financial loss are involved!23 Then for what purpose is it written? To teach you that unloading must be performed without payment, but loading only for payment. And what is R. Simeon's reason? - Because the verses are not explicit.24 And the Rabbis?25 - Why [say,] The verses are not explicit? Here it is written, [If thou see the ass . . .] lying under his burden;26 whilst there it is said, [Thou shalt not see thy brother's ass or his ox] fall down by the way, which implies, both they and their burdens are cast on the road.27 And R. Simeon?28 - 'Fall down by the way' implies they themselves [the animals], their load being still upon them.
Raba said:
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(1) Who shall testify that the division was made in the presence of three, including themselves.
(2) In each case the three would constitute a Beth din to ensure that the stock was rightly assessed and a fair division made.
(3) That three are necessary.
(4) And a Beth din implies three.
(5) It is so regarded because the Mishnah states that actually he is only entitled to the pay of an unemployed worker, hence, when he stipulates that he is to receive more, and the stipulation is allowed, it is the equivalent of taking money from one and giving it another. - The power of a Beth din to do this is based on the principle, hefker by Beth din is hefker, i.e., Beth din is empowered to abrogate a person's rights in his own property, and declare it ownerless; therefore the court can also take from one and give to another,
(6) For her alimony, and only two witnesses are required to see that she does not sell unreasonably below value.
(7) This is discussed in the Gemara.
(8) If he is a priest.
(9) Ex. XXIII, 5.
(10) I.e., it is in such a position that there is nothing to cause the animal to run away; on the other hand, it is unlocked, and there is nothing to prevent it from going.
(11) I.e., into a stable, and that is sufficient, as stated supra 31a, that he can simply take it into the owner's garden or ruins.
(12) A sabbath day's journey. i.e., 2000 cubits without the town boundary.
(13) Lev, XIX, 3.
(14) I.e., though every man must fear - i.e., reverence and obey his parents - his duty to God overrides his duty to them. The verse is therefore rendered thus: Ye shall fear every man his mother and his father; nevertheless (should they order you to desecrate the Sabbath), ye shall keep my Sabbaths, because I am the Lord your God.
(15) V. preceding note.
(16) His father, when he tells him not to return lost property.
(17) To obey one's parents is a positive command, as has just been quoted. To return lost property is a positive command - thou shalt surely restore it - and a negative injunction - thou mayest not hide thyself (Deut. XXII, 1, 3).
(18) Ex. XX, 12.
(19) Prov. III. 9: the fact that the same language is used of both shews that they are likened to each other.
(20) Ex. XXIII, 5.
(21) Deut. XXII, 4.
(22) V. supra p. 193.
(23) When the animal falls under its burden and help is needed to unload it.
(24) V. p. 194, n. 3.
(25) How do they rebut this argument?
(26) Ex. XXIII. 5: this certainly implies that the burden is still upon it, and help is required for unloading.
(27) And help is required to reload them.
(28) How can he maintain that the verses are not explicit?From the arguments of both we may infer that [relieving] the suffering of an animal is a Biblical law. For even R. Simeon said [this]1 only because the verses are not clearly defined. But if they were, we would infer a minori.2 On what grounds: Surely we infer it on the grounds of the suffering of dumb animals?3 - [No.] Perhaps it is because financial loss is involved, and the argument runs thus: If one is obliged to load, though no financial loss is involved; how much more so to unload, seeing that financial loss is involved. But is there no financial loss involved when loading [is required]: may not the circumstances be that in the meanwhile he loses the market, or that thieves can come and rob him of all he has!4 Now, the proof5 that [relieving] the suffering of an animal is Biblically enjoined is that the second clause states: R. JOSE THE GALILEAN SAID: IF IT [THE ANIMAL] BORE MORE THAN ITS PROPER BURDEN, HE [THE PASSER-BY] HAS NO OBLIGATION TOWARDS HIM [THE OWNER], BECAUSE IT IS WRITTEN, [IF THOU SEE THE ASS OF HIM THAT HATETH THEE LYING] UNDER ITS BURDEN, WHICH MEANS, A BURDEN UNDER WHICH IT CAN STAND: hence it follows that in the view of the first Tanna6 he is obligated towards him [to help him]. Why so? Surely because relieving the suffering of an animal is Biblically enjoined!7 - [No] Perhaps they differ as to [the connotation of] 'under its burden,' R. Jose maintaining that we interpret 'under its burden,' a burden under which it can stand; whilst the Rabbis hold that we do not interpret 'under its burden' [thus.] [Moreover,] it may be proved that relieving the suffering of an animal is no Biblical [injunction], because the first clause states, IF HE [THE OWNER OF THE ANIMAL] WENT, SAT DOWN, AND SAID [TO THE PASSERBY], SINCE THE OBLIGATION RESTS UPON YOU TO UNLOAD, UNLOAD: HE [THE PASSER-BY] IS EXEMPT, BECAUSE IT IS SAID, 'WITH HIM'. Now, should you think that [relieving] the suffering of an animal is a Biblical injunction, what difference does it make8 whether the owner joins him [in relieving the animal] or not? - In truth, [relieving] the suffering of an animal is Biblically enjoined; for do you think that 'EXEMPT' means entirely exempt? Perhaps he is exempt [from doing it] without payment, yet he is bound [to unload] for payment, Scripture ordering thus: When the owner joins him, he must serve him for nought; when the owner abstains, he must serve him for payment;9 yet after all [relieving] the suffering of an animal is Biblically enjoined.
(Mnemonic: Animal, animal, Friend, enemy, habitually lying down.) Shall we say that the following supports him?10 'One must busy himself with an animal belonging to a heathen just as with one belonging to an Israelite'.11 Now, if you say that [relieving] the suffering of an animal is a Biblical injunction, it is well; for that reason he must busy himself therewith as with one belonging to an Israelite. But if you say that [relieving] the suffering of an animal is not Biblically enjoined, why must he busy himself therewith as with an Israelite's animal? - There it is on account of enmity.12 Logic too supports this. For it states: If it is laden with forbidden wine, he has no obligation towards it. Now if you say that [relieving the suffering of an animal is not Biblically enjoined, it is well: therefore he has no obligation toward it. But if you say it is Biblically enjoined, why has he no obligation toward it? - It means this: but he has no obligation to load it with forbidden wine.
Come and hear: In the case of an animal belonging to a heathen bearing a burden belonging to an Israelite, thou mayest forbear.13 But if you say that [relieving] the suffering of an animal is Biblically enjoined, why mayest thou forbear: surely 'thou shalt surely help with him' is applicable! - After all, [relieving] the suffering of an animal is Biblically [enjoined]: the reference there is to loading. If so, consider the second clause: In the case of an animal belonging to an Israelite and a load belonging to a heathen, 'thou shalt surely help.' But if this treats of loading, why [apply] 'thou shalt surely help him'? - On account of the inconvenience of the Israelite.14 If so, the same applies in the first clause? - The first clause treats of a heathen driver, the second of an Israelite driver. How can you make a general assumption?15 - As a rule, one goes after his ass.16 But both 'and thou mayest forbear' and 'thou shalt surely help' refer to unloading! - Well [answer thus:] Who is the authority of this? R. Jose the Galilean, who maintained that [relieving the suffering of an animal is not Biblically [enjoined].17
Come and hear: If a friend requires unloading, and an enemy loading.18 one's [first] obligation is towards his enemy, in order to subdue his evil inclinations.19 Now if you should think that [relieving the suffering of an animal is Biblically [enjoined], [surely] the other is preferable! - Even so, [the motive] 'in order to subdue his evil inclination' is more compelling.20
Come and hear: The enemy spoken of is an Israelite enemy, but not a heathen enemy.21 But if you say that [relieving] the suffering of an animal is Biblically [enjoined], what is the difference whether [the animal belongs to] an Israelite or a heathen enemy? - Do you think that this refers to 'enemy' mentioned in Scripture? It refers to 'enemy' spoken of in the Baraitha.22
Come and hear:
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(1) That unloading needs be explicitly commanded, besides loading.
(2) That one is bound to unload, as above, and the verse would be unnecessary.
(3) If one is bound to load, though no suffering is entailed, etc., as on 32a.
(4) Hence the argument must be based on the suffering of the animal, which proves that such suffering must be averted by Biblical law.
(5) Lit., 'thou mayest know.'
(6) R. Simeon included.
(7) It is now assumed that the first Tanna admits the feasibility of R. Jose's interpretation of 'its burden,' consequently the only possible reason of the first Tanna is that relieving the suffering of an animal is a Biblical law,
(8) Lit., 'what is it to me?'
(9) I.e., he must relieve the animal, but is entitled to demand payment.
(10) Raba.
(11) To relieve it from its burden.
(12) I.e., in order not to arouse the enmity of the heathen.
(13) This refers to Ex. XXIII, 5: If thou seest the ass of him that hateth thee lying under his burden, and wouldst forbear to help him, thou shalt surely help with him, The Talmud disjoins the two phrases 'and wouldst forbear' (one word in Heb. we-hadalta) and 'thou shalt surely help him,' teaching that sometimes the first applies, i.e., one is permitted to withhold his aid, and sometimes the second, viz., 'thou shalt surely help him.'
(14) Who is forced to stay with the animal until it is laden and able to proceed.
(15) On what grounds can one assume that the first clause treats of a heathen driver etc.?
(16) Therefore, seeing that the first clause refers to an ass belonging to a heathen, the driver too is a heathen - probably the owner; and the same holds good of the second clause.
(17) As may be seen from his view in the Mishnah; but Raba's dictum is based on the view of the Rabbis.
(18) I.e., one meets two asses: one, belonging to a friend, is tottering under its burden, and help is needed to unload it; the other, belonging to an enemy, has fallen, and assistance is wanted to reload it.
(19) Tosef. B.M. II.
(20) Lit., 'better'.
(21) Tosef. ibid. It is now assumed that this refers to Ex. XXIII, 5 ('him that hateth thee' == thine enemy).
(22) Quoted above: If a friend requires unloading, and an enemy loading etc.[If thou seest the ass of him that hateth thee lying under its burden etc.:] 'lying' [just now], but not an animal that habitually lies down [under his burden]; 'lying,' but not standing;1 'under its burden', but not if it is unloaded;2 'under its burden' - a burden under which it can stand. Now, if you say that [relieving the suffering of an animal] is Biblically [enjoined], what does it matter whether it was lying [this once only], habitually lay down, or was standing? - The authority of this is R. Jose the Galilean, who maintained that [relieving] the suffering of an animal is [enjoined merely] by Rabbinical law. Reason supports this too. For it is taught: 'under its burden' - a burden under which it can stand. Now, whom do you know to hold this view? R. Jose the Galilean:3 this proves it. But can you assign it to R. Jose the Galilean? Does not the second clause teach: 'under its burden' but not if it is unloaded. What is meant by 'not if it is unloaded?' Shall we say, if it is unloaded, there is no obligation at all?4 But it is written, Thou shalt surely help to lift them up again!5 Hence it is obvious [that it means]. If unloaded, there is no obligation [to help to load it] without payment, but for remuneration. Now, whom do you know to hold this view? The Rabbis!6 - In truth, it is R. Jose the Galilean, yet in the matter of loading he agrees with the Rabbis.7
Our Rabbis taught: If thou see [the ass of him etc.]:8 I might think; even in the distance;9 therefore it is taught. If thou meet [thine enemy's ox or his ass going astray, thou shalt surely bring it back to him again].10 If, 'when thou meet', I might think that meet is literally meant; therefore it is written. 'If thou seest', Now, what 'seeing' is the equivalent of 'meeting?' The Sages estimated this as two fifteenths11 of a mil,12 which is a ris.13 A Tanna taught: And he must accompany it as far as a parsang.14 Rabbah b. Bar Hana observed: Yet he receives payment [for this].
MISHNAH. IF [A MAN'S] OWN LOST ARTICLE AND HIS FATHER'S LOST ARTICLE [NEED ATTENTION], HIS OWN TAKES PRECEDENCE. HIS OWN AND HIS TEACHER'S - HIS OWN TAKES PRECEDENCE; HIS FATHER' S AND HIS TEACHER'S - HIS TEACHER'S TAKES PRECEDENCE, BECAUSE HIS FATHER BROUGHT HIM INTO THIS WORLD, WHEREAS HIS TEACHER. 'WHO INSTRUCTED HIM IN WISDOM, BRINGS HIM TO THE FUTURE WORLD. BUT IF HIS FATHER IS A SAGE,15 HIS FATHER'S TAKES PRECEDENCE. IF HIS FATHER AND HIS TEACHER WERE [EACH] CARRYING A BURDEN, HE MUST [FIRST] ASSIST HIS TEACHER TO LAY IT DOWN,16 AND THEN ASSIST HIS FATHER. IF HIS FATHER AND HIS TEACHER ARE IN CAPTIVITY, HE MUST [FIRST] REDEEM HIS TEACHER AND THEN HIS FATHER. BUT IF HIS FATHER IS A SAGE, HE MUST [FIRST] REDEEM HIS FATHER AND THEN HIS TEACHER.
GEMARA. Whence do we know this? - Rab Judah said in Rab's name: Scripture saith, Save that there shall be no poor among you17 yours takes precedence over all others.18 But Rab Judah also said in Rab's name: He who [strictly] observes this, will eventually be brought to it.19
IF HIS FATHER AND HIS TEACHER WERE [EACH] CARRYING A BURDEN etc. Our Rabbis taught: The teacher referred to is he who instructed him in wisdom, not he who taught him Bible and Mishnah:20 this is R. Meir's view. R. Judah said: He from whom one has derived the greater part of his knowledge.21 R. Jose said: Even if he enlightened his eyes in a single Mishnah only, he is his teacher. Said Raba: E.g., R. Sehora, who told me the meaning of zohama listron.22
Samuel rent his garment for one of the Rabbis who taught him the meaning of 'One was thrust into the duct as far as the arm pit.23 and another [key] opened [the door] directly.'24
'Ulla said: The scholars in Babylon arise before and rend their garment for each other [in mourning]; but with respect to a [colleague's] lost article, when one has his father's [also to attend to,] he returns [a scholar's first] only in the case of his teacher put excellence.25 R. Hisda asked R. Huna: 'What of a disciple whom his teacher needs?'26 'Hisda, Hisda,' he exclaimed; 'I do not need you, but you need me.' Forty years27 they bore resentment against and did not visit each other. R. Hisda kept forty fasts because R. Huna had felt himself humiliated, whilst R. Huna kept forty fasts for having [unjustly] suspected R. Hisda.
It has been stated: R. Isaac b. Joseph said in R. Johanan's name: The halachah is as R. Judah. R. Aha son of R. Huna said in R. Shesheth's name: The halachah is as R. Jose.28 Now, did R. Johanan really say this? But R. Johanan said, The halachah rests with an anonymous Mishnah, and we have learnt, HIS TEACHER, WHO INSTRUCTED HIM IN WISDOM!29 - What is meant by WISDOM? The greater part of one's knowledge.
Our Rabbis taught: They who occupy themselves with the Bible [alone] are but of indifferent merit;30 with Mishnah, are indeed meritorious, and are rewarded for it; with Gemara31 - there can be nothing more meritorious; yet run always to the Mishnah more than to the Gemara. Now, this is self-contradictory. You say, 'with Gemara - there can be nothing more meritorious;' and then you say, 'Yet run always to the Mishnah more than to the Gemara!' - Said R. Johanan:
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(1) I.e., one is obliged to help to unload an animal that has fallen under its load, but not one that still stands under it.
(2) One is not obliged to help in loading it up again. The Gemara objects further in that this is explicitly ordered in Deut. XXII, 4.
(3) In the Mishnah supra 32a.
(4) Lit., 'it is not unloaded at all'.
(5) Deut. XXII. 4: this is interpreted as referring to reloading.
(6) Mishnah supra 32a. as interpreted in the Gemara.
(7) That it must be remunerated.
(8) Ex. XXIII, 5.
(9) And one is bound to go there to help.
(10) Ibid. 4.
(11) Lit., 'one in seven and a half.'
(12) A mil == 1000 cubits.
(13) A Persian measure.
(14) The passer-by, having helped to raise up the animal and replace its burden, must accompany it for a parasang, in case it falls again.
(15) [MS.M. adds: 'equal (in wisdom) to his teacher.']
(16) Lit., 'put down his teacher's.'
(17) Deut. XV. 4.
(18) V. p. 187. n. 1.
(19) He who always takes the greatest care to safeguard his own first, so as not to become impoverished, will eventually be brought to poverty.
(20) 'Wisdom' means the intelligent understanding of the Mishnah, the grounds of its statements, which are frequently made without giving the reasons, and ability to reconcile opposing Mishnahs (Rashi).
(21) Whether Bible, Mishnah or Gemara.
(22) **. This is a utensil mentioned in Kel. XIII. 2, in reference to laws of ritual defilement, a soup-ladle with a spoon for removing the scum of soup on one side and a fork on the other.
(23) Jast.: 'the duct of the arm-pit.' a sewer in the Temple, so called from its shape.
(24) This is a Mishnah in Tam. 30b, treating of the clearing away of the ashes from the altar.
(25) Though they give each other the respect due to a teacher, e.g., rising and rending the garments, nevertheless, in a question of lost property, only he who has really taught them is regarded as such.
(26) Because he has traditions from other scholars of which his teacher is ignorant. - R. Hisda was R. Huna's disciple, and the latter regarded the question as having a personal sting.
(27) [R. Han. renders: You need me till the age of forty; cf. A.Z. 5a: 'A man cannot probe the mind of his master up to the age of forty.']
(28) V. Baraitha quoted above.
(29) This appears to agree with R. Meir, not R. Judah.
(30) Lit., 'it is meritorious and it is not meritorious.'
(31) V. p. 60, n. 7. [Read with all MSS. and older prints: 'Talmud' (the discussions based on the older traditions of the Mishnah), the term 'Gemara', occurring throughout this passage in cur. edd., and denoting the complete mastery of a subject (Bacher, HUCA., 1904, 26-36), or, a summary embodying conclusions arrived at in schools (Kaplan, Redaction of the Talmud, p. 195 ff), having been substituted by the censor.]This teaching1 was taught in the days of Rabbi; thereupon everyone forsook the Mishnah and went to the Gemara; hence he subsequently taught them, 'Yet run always to the Mishnah more than to the Gemara.'2 How was that inferred?3 - Even as R. Judah son of R. Ila'i expounded: What is the meaning of, Shew my people their transgression, and the house of Jacob their sins?4 'Shew my people their transgression' refers to scholars, whose unwitting errors5 are accounted as intentional faults;6 'and the house of Israel their sins' - to the ignorant, whose intentional sins are accounted to them as unwitting errors. And that is the meaning of what we learnt: R. Judah said: Be heedful of the [Talmud],7 for an error in Talmud is accounted as intentional.
R. Judah son of R. Ila'i taught: What is meant by the verse, Hear the word of the Lord, ye that tremble at his word?8 - This refers to scholars; Your brethren said, to students of Scripture; that hate you - to students of the Mishnah;9 that cast you out - to the ignorant.10 [Yet] lest you say, their hope [of future joy] is destroyed, and their prospects frustrated, Scripture states , And we shall see your joy.11 Lest you think, Israel shall be ashamed, - therefore it is stated, and they shall be ashamed: the idolaters shall be ashamed, whilst Israel shall rejoice.
MISHNAH. IF A MAN ENTRUSTS AN ANIMAL OR UTENSILS TO HIS NEIGHBOUR, AND THEY ARE STOLEN OR LOST, AND HE [THE BAILEE] PAYS [FOR THEM], DECLINING TO SWEAR (SINCE IT WAS RULED THAT A GRATUITOUS BAILEE MAY SWEAR AND BE QUIT); THE THIEF, IF HE IS FOUND, MUST RENDER DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], HE MUST REPAY FOURFOLD OR FIVEFOLD.12 TO WHOM MUST HE PAY IT? TO HIM WITH WHOM THE BAILMENT WAS DEPOSITED.13 IF HE SWEARS, NOT WISHING TO PAY, THE THIEF, IF FOUND, MUST REPAY DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], MUST REPAY FOURFOLD OR FIVEFOLD. TO WHOM MUST HE PAY IT? TO THE BAILOR.
GEMARA. Why must he state both ANIMAL and UTENSILS? - They are necessary. For if ANIMAL [alone] were stated, I might have said that only in the case of an animal does he [the bailor] make over the double repayment to him,14 because it requires considerable attention, to be led in and out [of its stable]. But as for utensils, which do not require much attention, I might think that he does not make over the twofold repayment to him.15 And if UTENSILS [alone] were stated, I might have argued that only in the case of utensils does he [the bailor] make over the twofold repayment to him, because their multiplication is not great.16 But in the case of an animal, for which, if slaughtered or sold, he [the thief] must repay fourfold or fivefold, I might think that he [the bailor] does not make over the multiplied principal to him. Hence both are necessary.
Rami b. Hama objected: But one cannot transfer that which is non-existent!17 And even according to R. Meir, who maintained, One can transfer that which is non-existent, - that is only in the case of, e.g.. the fruit of a palm tree, which will naturally come [into existence].18 But here,
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(1) That Gemara is higher than Mishnah.
(2) The two are not really in opposition. The Mishnah itself needs full discussion (Gemara) before it can be intelligently understood; on the other hand, discussion cannot be profitable unless it takes the Mishnah as its basis. It would appear that when Gemara was praised, number of disciples eagerly applied themselves thereto, forgetting however that the Mishnah is the foundation; and therefore the new statement was made, which is not so much a new statement as a fuller explanation of the old. - It is noteworthy that Gemara, i.e., discussion on the Mishnah, was already rife in the days of Rabbi (i.e.. R. Judah the Prince c. first half of third century C.E.); cf. Weiss, Dor II, p. 209.
(3) [That the study of Talmud is the more meritorious.]
(4) Isa. LVIII, I.
(5) [Through inadequate application to the study of the Talmud.]
(6) Sins through ignorance, in the case of scholars, are accounted as intentional, since had they studied more thoroughly they would not have erred. - 'Transgression' (פשע) really means rebellion, and refers to intentional sin, whilst 'sin' (חטא) often refers to sinning through ignorance, the root idea of חטא being 'to be defective, to miss'.
(7) V. p. 206, n. 6.
(8) Ibid. LXVI, 5.
(9) There was a rivalry (perhaps amounting to enmity) between those who confined themselves exclusively to the Mishnah and those who developed a Gemara - i.e., discussion - upon it; cf. Sot. 22a.
(10) Maharsha: who 'cast you out' in that they have no desire to become partners with scholars in learning.
(11) 'We', plural. i.e., all classes of Israel.
(12) In accordance with Ex. XXI, 37.
(13) I.e., the bailee: since he paid for the bailment, all rights thereof vest in him; hence the thief must make restitution to him.
(14) When he receives payment for his bailment.
(15) It should be observed that the double payment is not regarded as becoming the bailee's automatically on account of the compensation he makes. That is because the liability is incurred on account of the theft, and the animal then belonged to the bailor.
(16) The thief can never be required to pay more than twofold.
(17) Lit., 'which has not come into the world.' - How then can the bailor make over the twofold repayment to the bailee?
(18) Hence we can sell his future crop.who can say that it [the bailment] will be stolen? And should you assume that it will be stolen, who can say that the thief will be found? And even if the thief be found, who can say that he will repay [double]: perhaps he will confess [before his guilt is attested]. and thus be exempt?1 - Said Raba: It becomes as though he [the bailor] had said to him, 'If it be stolen, and you are willing to pay me [for it], then my cow be yours from this moment [of delivery]'2 If so, even its shearings and offsprings too [should belong to the bailee].3 Why has it been taught: Excepting its shearings and offsprings? - But. said R. Zera, it is as though he had said to him, 'Except its shearings and offsprings.' And why make this an absolute assumption? It may be taken for granted that one gives over those improvements which come from elsewhere, but not those which come from the stock itself.
Others state, Raba said: It becomes as though he said to him, 'If it is stolen, and you are willing to reimburse me, then it is yours from just before the theft.' Wherein do they [sc. the two versions of Raba's reply] differ? - They differ in respect of the difficulty posited by R. Zera;4 or if it was standing in the meadow.5
AND HE [THE BAILEE] PAYS [FOR THEM], DECLINING TO SWEAR etc. R. Hiyya b. Abba said in R. Johanan's name: HE PAYS is not literally meant, but once he said, 'I will pay,' even if he has not done so, [the law of the Mishnah holds good].6
We learnt: AND HE PAYS, DECLINING TO SWEAR; [this implies,] only if he actually pays, but not otherwise? But consider the second clause: IF HE SWEARS, NOT WISHING TO PAY; [which implies] only if he did not consent, but if he consented, even if he had not actually paid [the double repayment is his]! Hence no inference can be drawn from this.7
It has been taught in accordance with R. Johanan: If one hires a cow from his neighbour and it is stolen, and he declares, 'I will pay and not swear,'8 and then the thief is discovered, he must pay double to the hirer.9
R. Papa said: If a gratuitous bailee merely says, 'I was negligent,' he [the bailor] assigns the twofold repayment to him, since he could have freed himself by [the plea of] theft. If a paid bailee merely says, 'It was stolen', the twofold repayment is made over to him, since he could, if he wished, have freed himself by pleading that it was hurt or had died. But if a borrower says, 'I will pay,' he [the bailor] does not assign him the twofold repayment; for how could he have freed himself? By [the plea], it died on account of its work? That is a rare occurrence.10
Others state, R. Papa said: A borrower too, once he says 'I will pay,' the double repayment becomes his, since he could, if he wished, free himself by [the plea], 'It died on account of its work.' Thereupon R. Zebid observed to him, Thus did Abaye say: As for a borrower, [the twofold repayment is not his] unless he has actually paid. Why? - Since all the benefit [of the loan] is his, he [the lender] does not make over the double repayment to him on the strength of mere words.
It has been taught in accordance with R. Zebid. If one borrows a cow from his neighbour and it is stolen, and the borrower hastens and pays for it, and then the thief is found, he must repay double to the borrower. Now, on the first version of R. Papa's dictum,11 this is certainly not a refutation;12 but must we say that it is a refutation of the second version?13 - R. Papa can answer you: Is this stronger than our Mishnah, which states, HE PAYS, yet we interpreted it as meaning, he declares [that he will pay]; so here too, it means that he says [that he will pay]. How compare? There [in our Mishnah] it is not stated that 'he hastens', whilst here it says, 'he hastens'! - What is the meaning of 'he hastens'? He hastens to promise. But since [the teaching] in respect of a hirer is stated, 'and he says' [that he will pay], whilst [that] in respect of a borrower is stated, 'and he hastens'; this proves that it is stated advisedly [so]! - Were they then taught together?14 The tannaim of the schools of R. Hiyya and R. Oshaia15 were asked, and they affirmed that they were taught together.
Now it is obvious that if he [the bailee] declared, 'I will not pay,' and then said, 'I will pay' - then he has said, 'I will pay'.16 But what if he [first] declared, 'I will pay.'
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(1) One who confesses before his guilt is attested is exempt from the money fine attaching to his crime; v. B.K. 75a.
(2) For it may be taken as axiomatic that one is willing to forego a possible twofold repayment in return for the safety of the principal.
(3) Since the ownership of the bailee is assumed to be retrospective, the shearings and offsprings from the time of its delivery as a bailment should be his.
(4) It arises on the first version, but not the second.
(5) just before the theft. Since this does not belong to the bailee, he cannot acquire it just then (for in order to acquire it, either he must perform meshikah (v. Glos.) or it must be standing within his domain); consequently the additional repayment made by the thief over and above the principal will belong to the bailor.
(6) This refutes the ruling reported in the name of R. Johanan.
(7) Only one clause is stated exactly, so that no particular inference can be drawn.
(8) Though a hirer is liable for theft, he could swear that an unpreventable accident had occurred, in which case he is free from responsibility.
(9) The Baraitha does not state that he actually paid, but merely declared his willingness to pay, yet the twofold repayment thereby becomes his.
(10) Hence a palpable lie, which one does not care to state.
(11) According to which the borrower does not acquire the double payment by his mere promise to pay.
(12) Since the Baraitha expressly states that the borrower actually paid.
(13) Which states that the borrower is entitled to the double payment on his mere promise to pay.
(14) They are separate Baraithas, and therefore the phraseology of one does not illumine the other.
(15) These were the principal authorities for the Baraitha.
(16) Hence the double repayment of the thief belongs to him.and then declared, 'I will not pay': do we say, he has retracted; or perhaps, he intended keeping his word, and was merely repulsing him [the bailor]?1 [Again,] if he declared, 'I will pay,' and died, whilst his sons declared, 'We will not pay,' what then? Do we say, they have retracted: or perhaps, they are keeping to their father's word, but merely repulsed him? [Again,] what if the sons did pay? Can he [the bailor] say to them, 'I made over the [right of receiving] double repayment to your father only, because he did me a favour,2 but not to you': or perhaps, there is no difference? What if he [the bailee] paid to the sons?3 Can they say to him, 'Our father made over the double repayment to you because you did him a favour; but as for ourselves, you have done nothing for us'; or perhaps, there is no difference? What if the heirs [of the bailee] paid to the heirs [of the bailor]? What if he paid a half?4 What if he borrowed two cows and paid for one of them?5 What if he borrowed from partners and paid one of them?6 What if partners borrowed and one of them paid?7 What if one borrowed from a woman and paid her husband?8 What if a woman borrowed and her husband paid? The questions stand.
R. Huna said: He [the bailee] is made to swear that it is not in his possession.9 Why? We fear that he may have cast his eyes upon it.10
An objection is raised: If one lends his neighbour on a pledge and the pledge is lost, and he [the lender] says to him [the debtor], 'I lent you a sela' on it, and it was [only] worth a shekel';11 whilst the other maintains, 'Not so; you did lend me a sela' upon it and it was worth a sela':' he is free [from an oath].12 'I lent you a sela' on it and it was worth a shekel, whilst the other maintains, 'Not so; you did lend me a sela' on it, and it was worth three denarii;'13 he is liable [to an oath].14 [If the debtor pleads,] 'You did lend me a sela' on it, whilst it was worth two;' and the other replies, 'Not so: I lent you a sela' on it and it was worth a sela';' he is free [from an oath].15 'You did lend me a sela' on it and it was worth two,' whilst the other replies, 'Not so: I lent you a sela' on it and it was worth five denarii,' he is liable [to an oath]. Now, who must swear? He who has the bailment [i.e., the creditor], lest the other swear and then this one produce the bailment.16 To what does this17 refer? Shall we say, to the second clause; but that [the oath rests upon the creditor] follows from the fact that it is he who makes partial admission!18 - But, said Samuel, it refers to the first clause. How can it refer to the first clause?19 - He means the second subsection of the first clause, [viz.,] 'I lent you a sela' on it and it was worth a shekel,' whilst the other maintains, 'Not so: you did lend me a sela' on it, and it was worth three denarii:' he is liable [to an oath]. Now, the onus of the oath lies upon the debtor,20 yet the Rabbis ordered that the creditor should swear, lest this one [sc. the debtor] swear and then the other produce the pledge. But if
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(1) Perhaps he was importuning him for the money, which he could not pay just then. Nevertheless, he might have intended to pay, and therefore the twofold repayment should belong to him.
(2) By taking care of the bailment.
(3) The bailor having died.
(4) I.e., he consented to pay half: does he acquire half of the double repayment?
(5) If it be assumed that when one consents to pay half only he does not acquire half of the double repayment, what if he consents to pay for one cow out of two: can this be regarded as a separate transaction altogether?
(6) His share: is he entitled to his half of the twofold repayment? Do we regard it as though he had paid the whole of one particular person's bailment, or must he have paid for the whole bailment itself?
(7) Has he a right to his half of the double repayment, since he paid for the whole of his share; or must the whole bailment be paid for?
(8) The reference is to 'property of plucking', q.v. p. 234. n. 10. Do we say, since the principal does not belong to the husband, restitution to him does not entitle the bailee to the double repayment; or perhaps, since the husband enjoys the usufruct, it does?
(9) This refers to the Mishnah. Though he offers to pay, he must nevertheless swear.
(10) I.e., coveted it, and so trumped up a story that it was stolen.
(11) Half a sela'.
(12) Since he maintains that he owes him nothing at all, there is no partial admission of the claims.
(13) One sela' = 4 denarii.
(14) Since there is partial admission of indebtedness. The Gemara discusses below the meaning of 'he.'
(15) V. n. 2 which applies here too, though the debtor is now the claimant.
(16) Because it is derogatory to the institution of the oath to swear when a matter may be practically proved (Tosaf.); Mishnah, Shebu. 43a.
(17) The last passage in the cited Mishnah.
(18) Why then state a different reason?
(19) Seeing that there no oath is taken.
(20) Since he is the defendant who makes partial admission.R. Huna's dictum be correct, since the creditor must swear that it is not in his possession, how can he produce it? - Said Raba:1 There are witnesses that it was burnt.2 If so, whence can he produce it? - But, said, R. Joseph, there are witnesses that it was stolen. Yet after all, whence can he produce it? He may exert himself and bring it. If so, when the creditor swears, the debtor may take pains and bring it! - [No.] As for the creditor['s producing it], it is well: he knows who enters and leaves his house, and so he can go, exert himself, and produce it. But does the debtor know who enters and leaves the creditor's house?
Abaye said: We fear lest he plead, saying to him, 'I found it after the oath.' R. Ashi said: Both must swear: one [sc. the creditor] that it is not in his possession; and the other, how much it was worth - And this is its meaning: Who swears first? The creditor must swear first [that the pledge is not in his possession], lest the other swear and then he produce the bailment.
R. Huna b. Tahlifa said in Raba's name: The first paragraph of the second clause refutes R. Huna. '"You did lend me a sela' on it, whilst it was worth two," and the other replies, "Not so: I lent you a sela' on it and it was [only] worth a sela'," he is free [from an oath.]' But if R. Huna's dictum is correct, since the creditor must swear that it is not in his possession, let him also swear, in virtue of a superimposed oath, how much it was worth!3 - Said R. Ashi: I repeated this discussion before R. Kahana, whereupon he observed to me: Let this apply where he believes him.4 Then let the debtor believe the creditor in this too [viz.,] how much it was worth! - [The debtor reasons,] he [the creditor] did not fully ascertain it [sc. the value]. Then let the creditor believe the debtor, since he does fully know it? - [Nevertheless,] he does not believe him. Wherein lies the difference, that the debtor believes the creditor, but not vice versa? - The debtor applies to the creditor, The integrity of the upright shall guide them:5 whereas the creditor applies to the debtor, but the perverseness of transgressors shall destroy them.6
A man once deposited jewels with his neighbour. When he demanded, 'Give me my jewels,' he replied, 'I do not know where I put them.' So he came before R. Nahman, Who said to him: Every [plea of] 'I do not know' is negligence; go and pay. Yet he did not pay, so R. Nahman went and had his house seized. Subsequently the jewels were found, [by which time] they had appreciated. Said R. Nahman: Let the jewels be returned to their [first] owner, and the house to its owner. Raba observed: I was sitting [then] before R. Nahman and it [the subject of our study] was the chapter, 'IF ONE ENTRUSTS [etc.];7 so I quoted to him, IF HE [THE BAILEE] PAYS, DECLINING TO SWEAR [etc.],8 but he did not answer me.9 And he did well not to answer me. Why? - There he did not trouble him to go to court,10 whereas here he troubled him.
Shall we say that in R. Nahman's opinion a valuation is returnable?11 - [No.] There it is different, because it was a valuation made in error, since the jewels were in existence from the first.12 The Nehardeans said: A valuation is returnable until twelve months. Amemar said: Though I am of Nehardea, I hold that a valuation is always returnable. None the less, the law is that a valuation is always returnable, because it is said, And thou shalt do that which is right and good.13
Now it is obvious,if a valuation was made on behalf of a creditor,14 and he went and valued it for his own creditor: we say to him [the second creditor], You are no better than the man in whose power you come.15 If he sold, bequeathed or gifted it, these [the recipients] certainly entered it [the distrained estate] originally with the intention of [possessing] the land, not the money.16 If it was appraised in favour of a woman [creditor], and she married:17 or if a valuation was made of a woman's [estate] and she married, and then died: the husband ranks as a purchaser in respect to a wife's property: he neither returns [the estate to the debtor], nor is it returned to him.18 For R. Jose b. Hanina said: In Usha it was enacted:19 If a woman sells of her 'property of plucking' in her husband's lifetime and then dies, her husband [as heir] can claim it from the purchasers.20
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(1) [MS.: R. Joseph.]
(2) Consequently no oath is imposed.
(3) For superimposed oaths, v. supra 3a
(4) This clause means that the debtor believes the creditor that the pledge is lost and does not demand that he swear thereto. Hence there is no superimposed oath either.
(5) Prov. XI, 3; i.e., he assumes that the creditor's prosperity proves his trustworthiness.
(6) Ibid. This is a natural reasoning when the belief in material reward and punishment is strong.
(7) I.e., we were then studying the present chapter.
(8) The Mishnah proceeds to state that the double repayment belongs to the bailee, thus proving that once he pays he is entitled to all rights therein. So here too, since he had paid, albeit against his will, the increased value of the jewels should be his.
(9) Disdaining to reply.
(10) Hence he willingly gives over his rights to the bailee, in consideration of having received payment.
(11) V. supra, p. 99.
(12) But if an article is distrained because a debtor cannot repay, it may be that it is not returnable even if he subsequently acquires money.
(13) Deut. VI, 18.
(14) I.e., the debtor's goods were assessed, distrained, and given to the creditor.
(15) Just as he would have had to return the goods if the debtor could repay the loan, so must you too.
(16) Therefore it is not returnable to the debtor. The creditor himself would have had to return it on account of the verse quoted, for it is applicable to him, since in the first place he demanded money, not land. But it is inapplicable to these recipients, seeing that their thought was land, not money.
(17) And this seized estate became either the husband's, as 'property of iron flock,' or remained the wife's, the husband enjoying its usufruct, as 'property of plucking.'
(18) If he wishes to settle his wife's debts.
(19) V. p. 558, n. 2.
(20) For he ranks as a previous purchaser.Where, however, he [the debtor] himself gave it to him [the creditor] for his debt,1 R. Aha and Rabina differ thereon: one maintains, It is returnable: the other, It is not. He who rules that it is not returnable holds that it is a true sale, since he voluntarily gave it in payment . But he who rules that it is returnable holds that it is not a true sale, and as for his giving it to him voluntarily and not going to court, - he gave it to him [merely] through shame.
And from what time can he [the creditor] enjoy the usufruct?2 Rabbah said: As soon as he receives the adrakta.3 Abaye said: The witnesses [to the adrakta], by their signatures, acquire the right for him.4 Raba said: When the days of public announcement are ended.5
MISHNAH. IF A MAN HIRES A COW FROM HIS NEIGHBOUR, LENDS IT TO ANOTHER, AND IT DIES A NATURAL DEATH, THE HIRER MUST SWEAR THAT IT DIED NATURALLY, AND THE BORROWER MUST PAY THE HIRER.6 SAID R. JOSE: HOW SHALL ONE DO BUSINESS WITH HIS NEIGHBOUR'S COW?7 HENCE THE [VALUE OF THE] COW MUST BE RETURNED TO ITS OWNER.
GEMARA. R. Idi b. Abin said to Abaye: Let us see: how does the hirer acquire the cow?8 By his oath!9 Then let the owner say to the hirer, 'Take yourself off with your oath, whilst I bring an action10 against the borrower!' - Do you think, he replied to him, that the hirer acquires it through his oath! He acquires it from the time of its death, the oath being only to placate the owner.11
R. Zera said: It may sometimes happen [on the basis of this Mishnah] that the owner must render many cows to the hirer. How so? - If A hired it [an animal] from him [B] for one hundred days, and then B re-borrowed it from him for ninety days;12 then A rehired it from B for eighty days [out of the ninety], and B. re-borrowed it from A for seventy days, and it died within the period of borrowing. Now on account of each separate borrowing he becomes liable for one cow.13 R. Aha of Difti said to Rabina: Let us see, only one animal is involved, which was brought into [a certain state] and taken out [thence]: it was taken out of hiring and brought into borrowing, taken out of borrowing and brought into hiring! - Is the cow then still in existence, he replied, that we should say thus to him?14 Mar son of R. Ashi said: He has a claim only in respect of two cows, one in respect of borrowing and one in respect of hiring, [for] there is one designation of borrowing and one designation of hiring.15 That in respect of borrowing belongs entirely to him [the hirer],16 whilst as for that of hiring, he must work therewith for the period of hiring and return it to its owner.17
R. Jeremiah said: Sometimes both [the hirer and the borrower] are liable to a sin-offering,
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(1) I.e., without waiting for a court order of distraint, to which all the previous rulings apply.
(2) When the court makes an order for distraint.
(3) V. Glos.
(4) Even before he receives the document.
(5) The estate to be distrained was announced for public sale, to go to the highest bidder; after the period of announcing is passed (the period is discussed in 'Ar. 21b seq.) without its being sold, the creditor has a right to the usufruct.
(6) A hirer is free from liability in the case of natural death, but not a borrower.
(7) Surely it is inequitable that the hirer shall be paid for an animal that never belonged to him!
(8) I.e.,the freedom from responsibility for it, and the right to be paid by the borrower.
(9) By swearing that it died a natural death.
(10) Lit., 'will talk in an action.'
(11) That it had actually died a natural death.
(12) Out of the hundred, so that at their expiration A would have another ten days.
(13) For the Mishnah states that the hirer owes nothing to the owner, but the borrower is liable to the hirer. This is a general rule, and holds good even if the borrower is actually the owner, for the principle is the same. Furthermore, each borrowing is a separate transaction, notwithstanding that the borrowings run concurrently, and each imposes a separate liability. Hence the owner may have to pay several animals to the hirer.
(14) Since the cow is dead, that argument cannot be used, and each borrowing and hiring is a separate transaction.
(15) He agrees with R. Aha of Difti. Notwithstanding that there were two borrowings, they are regarded as one in the final analysis.
(16) Therefore the borrower, here the actual owner, must pay for it.
(17) I.e., the owner must supply him with an animal for the remaining period of hiring - in this case, ten days.Sometimes both are liable to a guilt-offering, sometimes the hirer is liable to a sin-offering and the borrower to a guilt-offering, and sometimes the hirer is liable to a guilt-offering and the borrower to a sin-offering.1 How so? For denying monetary liability [on oath] a guilt-offering is incurred; for a false statement,2 a sin-offering.3 'Sometimes both are liable to a sin-offering.' E.g., if it died a natural death, and they maintained that an accident had befallen it. Thus, the hirer, who is free [from responsibility] in both cases,4 is liable to a sin-offering, and the borrower, who is responsible in both cases, is [likewise] liable to a sin-offering. 'Sometimes both are liable to a guilt-offering.' E.g., if it was stolen, and they maintained that it had died of its work. Thus both deny monetary liability, since in fact they are responsible [for theft], whilst they free themselves. 'The hirer is liable to a sin-offering and the borrower to a guilt-offering.' E.g., if it died a natural death, and they maintained that it had died of its work. The hirer, who is free [from responsibility] in both cases, is liable to a sin-offering; the borrower, who is liable if it dies a natural death but frees himself with [the plea that] it died of its work, to a guilt-offering. 'The hirer is liable to a guilt-offering, and the borrower to a sin-offering.' E.g., if it was Stolen, and they maintained that it had died naturally. The hirer, who is liable for theft and loss but frees himself with [the plea,] it died naturally, incurs a guilt-offering; the borrower, who is responsible in both cases, a sin-offering.
Now, what does he [R. Jeremiah] thereby inform us?5 - [His purpose is] to oppose R. Ammi's dictum, viz., For every oath which the judges impose no liability is incurred on account of an 'oath of utterance' because it is said, Or if a soul swear, uttering with his lips [etc.],6 which implies a voluntary oath.7 Therefore he informs us that it is not as R. Ammi.
It has been stated: If one bailee entrusted [his bailment] to another bailee - Rab said: He is not liable;8 R. Johanan maintained: He is liable.9 Abaye said: According to Rab's ruling, not only if a gratuitous bailee entrusted [the bailment] to a paid bailee, thereby enhancing its care; but even if a paid bailee entrusted [it] to an unpaid one, thus weakening its care, he is still not responsible. Why? Because he entrusted it to an understanding being.10 Whilst according to R. Johanan's view: not only if a paid bailee entrusted [it] to an unpaid one, thus weakening its care; but even if an unpaid bailee entrusted it to a paid one, thereby enhancing its care, he is still responsible. Why? Because he [the bailor] can say to him, 'It is not my desire that my bailment should be in charge of another person.'
R. Hisda said: This ruling of Rab was not stated explicitly, but by implication. For there were certain gardeners who used to deposit their spades every day with a particular old woman. But one day they deposited them with one of themselves. Hearing the sounds of a wedding, he went out and entrusted them to that old woman. Between his going and returning, their spades were stolen, and when he came before Rab, he declared him not liable. Now, those who saw this thought that it was because if a bailee entrusts [the bailment] to another bailee he is free [from liability]; but that is not so: there it was different, Seeing that every day they themselves used to deposit [their spades] with that old woman.
Now, R. Ammi was sitting and recounting this discussion, whereupon R. Abba b. Memel raised an objection before him: IF A MAN HIRES A COW FROM HIS NEIGHBOUR, LENDS IT TO ANOTHER, AND IT DIES A NATURAL DEATH, THE HIRER MUST SWEAR THAT IT DIED NATURALLY, AND THE BORROWER MUST PAY THE HIRER. But if this [sc. R. Johanan's ruling] be correct, let him [the owner] say to him, 'It is not my desire that my bailment should be in the hands of another person'! - He replied: The circumstances here are that the owner authorised him to lend it. If so, he ought to pay the owner!11 - It means that he said to him, 'At your discretion'.12
Rami b. Hama objected [from the following Mishnah]: If one deposited money with his neighbour, who bound it up and slung it over his shoulder13 [or] entrusted it to his minor son or daughter and locked [the door] before them, but not properly,14 he is responsible, because he did not guard [it] in the manner of bailees.15 Hence, it is only because they were minors; but if they were adults, he would be free [from liability]. Yet why so? Let him say to him, 'It is not my desire that my bailment should be in the hands of another person'! - Said Raba: He who makes a deposit
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(1) The reference is to the Mishnah, where the hirer of an animal then lends it to another.
(2) Lit., 'utterance of lips.' V. Shebu. 32b.
(3) If one swears falsely, profiting thereby, he is liable to a guilt-offering; if he does not profit thereby, thus taking an 'oath of utterance', to a sin-offering] This is deduced from Lev. V, 4 f, 21, 25.
(4) Whether it dies a natural death or is the victim of a mishap.
(5) All these follow from well established principles in the last Mishnah, in Shebu. 49b, and R. Jeremiah adds nothing new.
(6) Lev. V, 4.
(7) I.e., in his opinion an 'oath of utterance' is only one taken quite voluntarily; but if imposed by a court, even if nothing is gained thereby, it is not an 'oath of utterance'.
(8) For whatever he would not have been liable had he kept it himself.
(9) Even for unpreventable accidents, for which he would not have been liable had he kept it himself.
(10) I.e., who is capable of giving due care.
(11) The assumption is that he permitted him to lend it to that particular person; but in that case, it is as though he himself had lent it, and therefore he ought to receive the compensation.
(12) I.e., he gave him a general authorisation; hence the hirer is regarded as the lender and payment is made to him.
(13) Lit., 'behind him.'
(14) I.e., he shut them in the house, so that they could not go out with the money, but did not close the door properly.
(15) V. infra 42a.does so with the understanding that his [the bailee's] wife and children [may be put in charge thereof]. The Nehardeans said: This may be deduced too [from the Mishnah quoted] , for it states, 'or entrusted it to his minor son or daughter . . . he is responsible'; hence, [if] to his adult son or daughter, he is not responsible, whence it follows that if [he entrusts it] to strangers, whether adults or minors, he is liable. For if otherwise, he [the Tanna] should have simply taught 'minors' : this proves it.
Raba said: The law is, If one bailee entrusts [the bailment] to another, he is responsible. Not only if a paid bailee entrusts [it] to an unpaid one, so weakening its care; but even if an unpaid bailee entrusts to a paid one, he is [still] responsible. Why? Because he [the bailor] can say to him, 'You I believe on oath: the other I do not.'1
It has been stated: If he [the bailee] was negligent thereof,2 and it went out into a meadow3 and died naturally:4 Abaye in Rabbah's name ruled that he is liable; Raba in Rabbah's name ruled that he is not liable. 'Abaye in Rabbah's name ruled that he is liable.' Any judge who does not give such a verdict is not a judge: not only is he liable on the view that , if the beginning is through negligence, and the end through an accident, one is liable;5 but even on the view that one is not liable, in this case he is. Why? Because we say, The air6 of the meadow land killed it.7 'Raba in Rabbah's name ruled that he is not liable.' Any judge who does not give such a verdict is not a judge: not only is he not liable on the view that, if the beginning is through negligence, and the end through an accident , one is not liable; but even on the view that he is liable, in this case he is not. Why? Because we Say, What difference does one place or another8 make to the Angel of Death?9 Now, Abaye admits that if it returned to its owner [sc. the bailee] and then died, he is free. Why? Because it had returned, and it could not be said that the air of the meadow killed it. Whilst Raba admits that if it was stolen from the meadow and died naturally in the thief's house, he [the bailee] is responsible. Why? Had the Angel of Death left it alone, it still would have been in the thief's house.10
Abaye said to Raba: According to you, who maintain, what difference does this place or that make to the Angel of Death: when R. Abba b. Memel raised an objection before R. Ammi, and he answered him, It means that the owner authorised the hirer to lend it,11 - he should rather have answered him, What difference does this place or another make to the Angel of Death?12 - He replied, According to you, who teach [the reason of R. Johanan's ruling13 as being that the bailor can say,] 'I do not wish my bailment to be in the hands of another', that objection [of R. Abba b. Memel] can be raised.14 But according to myself, who [maintain that it is because he can say,] 'You I believe on oath, whilst the other I do not believe on oath,' the objection cannot be raised at all.15
Rami b. Hama objected: If he [the bailee] took it up to the top of steep rocks and it fell and died, it is no accident.16 Hence, if it died naturally, it is accounted an accident and he is not liable. Yet why so? Let him [the bailor] say to him, The [cold] mountain air killed it, or the exhaustion of [climbing] the mountain killed it! - The meaning there is that he took it up to a fertile and goodly pasture ground.17 If so, it is the same even if it fell?18 - He should have supported it [to prevent it from falling], but did not. If so, consider the first clause: If it ascended to the top of steep rocks and then fell down, it is an accident. Yet there too he should have supported it! - That holds good only if he supported it in its ascent, and supported it when it fell.19
SAID R. JOSE: HOW SHALL ONE DO BUSINESS WITH HIS NEIGHBOUR'S COW etc. Rab Judah said in Samuel's name: The halachah is as R. Jose. R. Samuel b. Judah asked Rab Judah: You have told us in Samuel's name that R. Jose disputed
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(1) And it is not within the bailee's power to put the bailor in such a position that he shall be forced to believe the other person on oath; hence he is responsible.
(2) Sc. the animal entrusted to his care, placing it in a stable improperly closed.
(3) Where it might have been stolen or killed by wild beasts.
(4) Thus the bailee was negligent, but the actual death per se was one for which a bailee is not responsible.
(5) V. infra 42a.
(6) Lit., 'heat'.
(7) Hence his death is directly the result of his negligence.
(8) Lit., 'here or there.'
(9) Therefore the initial negligence had absolutely nothing to do with the animal's death. But in the case discussed supra 42a (q.v.) it did have some slight bearing upon it.
(10) And lost, as far as the owner was concerned. Since this is directly the result of the bailee's negligence, he is responsible
(11) V. supra 36a.
(12) This answer is preferable, for then the Mishnah on 35a is not limited to a particular instance.
(13) Supra 36a.
(14) And having raised it, R. Ammi replied as he thought fit.
(15) Since in the Mishnah the hirer himself swears.
(16) Infra 93b.
(17) Which is a natural thing for shepherds: hence he is not liable on the score of cold air or exhaustion.
(18) Since, on the present hypothesis, he merely did his duty in taking it up.
(19) The animal's weight, however, being too much for him.in the first [Mishnah]1 too: now, is the halachah as his view [there too] or not? - He replied: R. Jose did indeed dispute in the first too, and the halachah agrees with him in the first too. It has been stated likewise: R. Eleazar said: R. Jose differed in the first too, and the halachah agrees with him there also. But R. Johanan maintained: R. Jose agreed in the first [Mishnah], seeing that he [the bailee] had already paid for it.2 [What!] only if he actually paid, but not otherwise? Yet did not R. Hiyya b. Abba say in R. Johanan's name: 'HE PAID' is not literally meant , but once he says, 'I will pay' , even if he has not done so [the ruling of the Mishnah holds good]? - Say thus: R. Jose agreed in the first [Mishnah], seeing that he had already declared, 'I will pay for it'.
MISHNAH. IF A MAN SAYS TO TWO [OTHERS] I ROBBED ONE OF YOU OF A MANEH, BUT DO NOT KNOW WHICH OF YOU, OR THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE: HE MUST GIVE EACH A MANEH, SINCE HE HIMSELF CONFESSED.3 IF TWO MADE A DEPOSIT WITH ONE PERSON, ONE A MANEH4 AND THE OTHER TWO HUNDRED [ZUZ]: - THIS ONE SAID, THE TWO HUNDRED IS MINE, AND THE OTHER SAID LIKEWISE, THE TWO HUNDRED IS MINE: HE MUST GIVE A MANEH TO EACH, WHILST THE REST LIES UNTIL ELIJAH COMES.5 SAID R. JOSE: IF SO, WHAT WILL THE DECEIVER LOSE?6 BUT THE WHOLE MUST LIE UNTIL ELIJAH COMES. LIKEWISE, IF TWO UTENSILS [ARE DEPOSITED], ONE WORTH A MANEH AND THE OTHER ONE THOUSAND [ZUZ]: THIS ONE CLAIMS, THE BETTER ONE IS MINE, THE OTHER CLAIMS, THE BETTER ONE IS MINE: THE INFERIOR ONE MUST BE GIVEN TO ONE OF THEM, AND OUT OF THE SUPERIOR THE VALUE OF THE INFERIOR IS GIVEN TO THE SECOND, THE REST REMAINING UNTIL ELIJAH COMES. SAID R. JOSE: IF SO, WHAT WILL THE DECEIVER LOSE? BUT THE WHOLE MUST LIE UNTIL ELIJAH COMES.
GEMARA. This proves that money is collected as a result of doubt, and we do not say, Let the money stand in the presumptive ownership of its possessor. But this is contradicted by the following: IF TWO MADE A DEPOSIT WITH ONE PERSON, ONE A MANEH AND THE OTHER TWO HUNDRED [ZUZ], THIS ONE SAID, THE TWO HUNDRED IS MINE, AND THE OTHER SAID LIKEWISE, THE TWO HUNDRED IS MINE: HE MUST GIVE A MANEH TO EACH, WHILST THE REST LIES UNTIL ELIJAH COMES! - Said he to him:7 Would you oppose a bailment to robbery! In the case of robbery, since he committed a transgression, the Rabbis penalised him;8 whereas in the case of a bailment, where no wrong was committed by him, the Rabbis did not penalise him. But bailment may be opposed to bailment, and robbery to robbery. 'Bailment may be opposed to bailment'. For the first clause teaches, OR, THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE; HE MUST GIVE EACH A MANEH. Now this is contradicted by [the Baraitha just quoted,] 'If two made a deposit, etc.' - Said Raba: In the first clause9 it is regarded as though they had entrusted [their money] to him in two separate packages, so that he should have paid particular attention;10 but in the second clause it is regarded as though they had made their deposits with him in a single package, so that he was not bound to take particular attention.11 [How so?] Both made their deposits with him simultaneously,12 so that he [the bailee] can say to them, You yourselves were not particular with each other:13 should I then have been particular?
'And robbery may be opposed to robbery'. Here we learn IF A MAN SAYS TO TWO OTHERS, I ROBBED ONE OF YOU OF A MANEH, BUT I DO NOT KNOW WHICH OF YOU, OR, THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE: HE MUST GIVE EACH A MANEH. But the following is opposed thereto: If a man robbed one out of five, and does not know which one he robbed, and each claims, 'It was me he robbed': he may place the stolen article among them and depart: this is R. Tarfon's view.14 This proves that money is not collected as a result of doubt, but we say, Let the money stand in the presumptive ownership of its possessor!15 And whence [does it follow] that our Mishnah here agrees with R. Tarfon?16 Because It was taught thereon:17 R. Tarfon admits that if one says to two people, 'I robbed one of you of a maneh, but do not know which of you,' he must give each a maneh!18 - There they were claiming from him; here it means that he came to fulfil his duty in the sight of Heaven.19 This may be proved too, for it is stated SINCE HE HIMSELF CONFESSED.20 This proves It.
The Master said: 'There they were claiming from him.' And what does he plead? - Rab Judah said in Rab's name: He is silent. R. Mattena said in Rab's name: He
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(1) Supra 34b, R. Jose maintaining: How can the bailee pocket the double repayment due on account of the theft of the bailor's property?
(2) And thereby acquired all rights in it.
(3) This is discussed in the Gemara.
(4) = 100 Zuz.
(5) V. p. 6, n. 2.
(6) There is nothing to induce him to confess.
(7) The answerer to the questioner, though their names are unmentioned. [This is, however, omitted in several MSS, v. D.S. a.l.]
(8) Therefore the first clause of the Mishnah rules that he must pay both.
(9) Where only one person deposited money with him.
(10) Who gave him the money; just as had two people made deposits at different times, hence in different packages, it would have been the bailee's duty to see which package belonged to each. Since he did not pay close attention, he must satisfy both claimants.
(11) What part of the package belonged to each other.
(12) Each in the other's presence.
(13) To prevent the other from seeing how much he deposited, lest he claim it as his own.
(14) B.K. 103b.
(15) And the robber is not bound to repay each, as in our Mishnah.
(16) Perhaps it reflects R. Akiba's views, who differs from R. Tarfon, v. B.K. ibid.
(17) If a man robbed one out of five etc.
(18) In agreement with our Mishnah.
(19) Legally he is not bound to pay all claimants, and the second Mishnah quoted treats of this aspect. But morally he can atone for his sin only by repaying all, so that none shall have suffered through his theft.
(20) Which shews that he was not being dunned, but wished to clear himself.protests.1 On the view that he protests - but silence is as admission.2 But on the view that he is silent - this silence here3 is not an admission, because he can say, 'The reason that I was silent before each is that I thought, Perhaps it was this one.'
The Master said: 'He may place the stolen article among them and depart.' And can all of them take it and go! Did not R. Abba b. Zabda say in Rab's name: Whenever he is doubtful if an article was left [in a certain spot], he must not take it in the first instance; but if he took, must not return it?4 - Said R. Safra: It is laid by.5
Abaye said to Raba: Did then R. Akiba Say,6 'That is not the way to clear him of his crime, but he must restore the theft to each one;' thus proving that money is collected as a result of doubt, and we do not say, Let the money stand in the presumptive ownership of its possessor? But the following is opposed thereto: If a house collapsed on a person and his mother:7 the son's heirs maintain, 'The mother died first;'8 whilst the mother's heirs maintain, 'The son died first:'9 both10 agree that they must divide. And R. Akiba said thereon: I agree in this case that the property remains in its presumptive ownership!11 - There, he replied to him, both [heirs] plead 'perhaps';12 but in the case of a person robbing one man of five, there is certainty against doubt.13 But our Mishnah here, IF A MAN SAYS TO TWO [OTHERS], 'I ROBBED ONE OF YOU OF A MANEH,' which is a case of 'perhaps' on both sides, nevertheless states HE MUST GIVE EACH A MANEH! (Whence do you know that it agrees with R. Akiba? - Because it is taught thereon:14 R. Tarfon admits that if one says to two people, 'I robbed one of you of a maneh, but do not know which,' [he must give each a maneh]. Now, to whom does he admit? [Surely] to R. Akiba, his opponent? And whence do you know that both sides plead 'perhaps?' Firstly, because it is not stated, They demand of him; and secondly, R. Hiyya taught: Each replies, 'I do not know!')15 - But we have already interpreted it of one who wishes to fulfil his duty in the sight of heaven!
Rabina said to R. Ashi: Did then Raba say that whenever [deposits are made] in two separate packages, he [the bailee] should have paid particular attention?16 But Raba - others state, R. Papa - said: All admit in the case of two people who entrusted [their lambs] to a shepherd, that the shepherd places [them] between them and is quit!17 - He replied: The circumstances there are that they deposited [the lambs] in the shepherd's fold without his knowledge.
LIKEWISE, IF TWO UTENSILS [ARE DEPOSITED], ONE WORTH A MANEH AND THE OTHER ONE THOUSAND [ZUZ] etc. And both [instances] are necessary. For if the first alone were stated, I might argue, Only there [sc. in the case of money] do the Rabbis rule [thus], because no loss is caused; but in the latter case, where great loss is involved [in the breaking of the larger utensil], they agree with R. Jose. And if the latter case [alone] were stated, I might argue, Only here does R. Jose rule [thus], but in the former, he agrees with the Rabbis.18 Thus both are necessary.
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(1) To each claimant, 'I do not know you', thus denying the claim.
(2) Therefore he would have to pay each.
(3) [Despite the generally accepted principle that silence is treated as admission (Yeb. 87b).]
(4) This refers to an object bearing no mark of identification, found in a place where it is somewhat guarded, so that it is doubtful whether it was lost or intentionally put there. (V. Supra 25b.) Now, 'he must not return it' means that it must not be given to a claimant who cannot prove his ownership, for the true owner may come later and prove, by means of witnesses, that he deposited it there. Hence here too, if the money is left among the five, and all take it, the true victim suffers a permanent loss.
(5) The phrase means, he places the stolen article before them at court, and departs, i.e., he is now clear in the eyes of the law. Nevertheless, the money is kept until ownership is proved.
(6) In reference to R. Tarfon's ruling where one of five persons was robbed.
(7) And it is not known who predeceased whom, whilst the mother possessed property in her own rights.
(8) Hence her son inherited her property; and on his death, we inherit it.
(9) Hence we are the mother's direct heirs in his absence.
(10) Beth Shammai and Beth Hillel, who dispute in other cases.
(11) B.B. 155b. It is disputed by Amoraim a.l. whose presumptive ownership is meant. But whosoever Is meant, we see that R. Akiba admits that money cannot be collected when doubt arises.
(12) Neither can really pretend to know with certainty which died first.
(13) Whereas the thief himself is doubtful, each of the five declares positively that he was the victim.
(14) Sc. the other Mishnah.
(15) And R. Hiyya's Baraithas were authoritative expositions of the Mishnah. Hence the difficulty remains: the two rulings of R. Akiba are contradictory.
(16) V. supra 37a.
(17) This too refers to a controversy between R. Akiba and R. Tarfon. A and B: one deposited one lamb with a shepherd, and the other two, each subsequently maintaining that the two were his; then the shepherd merely puts the three lambs before them. Now, lambs are certainly as deposits in separate packages, yet the shepherd is not required to return two lambs to each. This contradicts Raba's former statement.
(18) Inverting the reasoning.But R. Jose's reason is that the deceiver may suffer loss!1 - Hence both are necessary on the view of the Rabbis, and he [the Tanna] teaches a case of 'not only this, but this too.'2
MISHNAH. IF A MAN DEPOSITS PRODUCE WITH HIS NEIGHBOUR, EVEN IF IT IS SUFFERING LOSS,3 HE MUST NOT TOUCH IT. R. SIMEON B. GAMALIEL SAID: HE MUST SELL IT BY ORDER OF THE COURT, BECAUSE IT IS LIKE RETURNING LOST PROPERTY TO ITS OWNER.
GEMARA. What is the reason?4 - Said R. Kahana: A man prefers a kab of his own to nine of his neighbour's.5 But R. Nahman b. Isaac said: We fear lest the bailor had declared it terumah and tithe for other produce.6
An objection is raised: If one deposits produce with his neighbour, he must not touch it . Therefore its owner may declare it terumah and tithe for other produce. Now, on R. Kahana's explanation, it is well: hence he states, 'therefore'. But on the view of R. Nahman b. Isaac, how state 'therefore'?7 - It means this: now that the Rabbis have ruled that it may not be sold because we fear [that the owner may have declared, etc.], therefore the owner may declare it terumah and tithe for other produce.
Rabbah b. Bar Hanah said in R. Johanan's name: The dispute is only when there is the normal rate of decrease; but when [the loss] exceeds the normal rate of decrease, all agree that it must be sold by a court order. Now, he certainly disagrees with R. Nahman b. Isaac;8 but must we say that he differs from R. Kahana [too]? - [No.] R. Kahana referred only to the normal decrease. But did he not Say, A man prefers a kab of his own to nine of his neighbour's!9 - That was a mere exaggeration.
An objection is raised: 'therefore its owner may declare it terumah and tithe for other produce;' but let him fear lest [the loss] exceeded the normal decrease, so that it was sold , hence he [the bailor] eats tebel!10 - [A loss] above the normal decrease is rare.11 But what if it does happen - we sell it? But let us fear lest the owner might have declared it terumah and tithe for other produce!12 - It is, in fact , sold to priests [only] at the price of terumah.13 Then according to R. Nahman b. Isaac too, let it be sold to priests at the price of terumah! - They differ in this: viz., Rabbah b. Bar Hanah holds that [loss] above the normal decrease is altogether rare, and when it does happen, it exceeds the usual rate only after a considerable time.14 Hence, if the owner declared it terumah and tithe for other produce, he would have done so before its loss exceeded the normal;15 therefore, when it does exceed it we can sell it to priests at the price of terumah. R. Nahman b. Isaac, however, maintains that a greater decrease than normal is quite frequent, and when it happens, it may happen immediately.16 Therefore, should you say that it is sold, it may happen that it is sold early, and when the owner declares it terumah and tithe for other produce he is unaware that it is [already] sold , and so eats tebel.
An objection is raised: If one deposits fruit with his neighbour, and it rots; wine, and it sours; oil, and it putrefies, or honey, and it turns rancid, he [the bailee] may not touch it: this is R. Meir's ruling. But the Sages maintain: He effects a remedy for them by selling them on the instructions of the court; and when he sells, he must sell to strangers, not to himself. Similarly, when the charity overseers have no poor to whom to distribute [their funds], they must change [the copper coins] with others, not themselves.17 The overseers of the soup kitchen,18 when they have no poor to whom to make a distribution, must sell to others, not themselves. Now, incidentally he [the Tanna] states, 'fruit . . . and it rots': surely that means, even more than the normal decrease?19 - No: [it means] within the normal deterioration. But 'wine, and it sours, oil and it putrefies, or honey, and it turns rancid' are more than normal deterioration! - These are different: having arrived at that stage, they remain so.20 Now, when oil putrefies, or honey becomes rancid,
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(1) And that obviously applies to both cases equally: how then could it be argued that if the second clause alone were taught, I might think that he agrees with the Rabbis in the first?
(2) I.e., having first taught the instance of money, he proceeds to state, Not only do the Rabbis rule thus where it involves no loss, but even in a dispute about utensils, where definite loss is caused.
(3) Through mildew or rodents.
(4) Of the first view.
(5) He would rather have a smaller quantity grown by himself than a larger quantity produced by another.
(6) Lit., 'for another place.' Produce may be declared Terumah (v. Glos.) or tithe for other produce lying elsewhere. If the bailor had done this, it obviously may not be sold.
(7) Seeing that the reason that he may not touch it is precisely because the bailor may have declared it terumah or tithe for other produce.
(8) If we fear that it was declared terumah or tithe, it certainly may not be sold under any circumstances.
(9) Which is certainly more than normal.
(10) V. Glos.; the plural is used here. - The produce might have been sold before it was declared tithe, in which case the bailor now eats untithed produce.
(11) Lit., 'is not found.'
(12) In which case the buyer, though possibly a zar, (q.v. Glos.) eats terumah, which is forbidden.
(13) Which is less than that of ordinary produce: firstly, because only priests may eat it; and secondly, because it may not be eaten at all if it becomes defiled.
(14) Lit., 'at a time ahead.'
(15) So that the produce is properly tithed.
(16) Before the lapse of a considerable time.
(17) Copper coins were unsuitable for keeping a long time, being liable to tarnish and mould. Therefore they would be exchanged for silver ones.
(18) תמחוי; actual food was collected for this purpose, not money, and it was distributed to those in immediate need of a meal. V. B.B. 8b.
(19) Yet R. Meir rules that it must not be touched, which contradicts R. Johanan.
(20) And do not deteriorate any further; therefore nothing is gained by selling them. But produce goes on rotting more and more.for what is it fit?1 - Oil is of use to leather merchants;2 honey, for the soreness of camels.3
'But the Sages maintain, he must effect a remedy for them by selling them on the instructions of the court.' But what remedy does he effect?4 - Said R. Ashi: In respect of the gourds.5 Wherein do they differ?6 - One master holds, We care about a great loss, but not about a small one;7 whilst the other master [sc. the Rabbis] holds that we care even for a small loss.8
R. SIMEON B. GAMALIEL SAID: HE MUST SELL IT BY ORDER OF THE COURT, BECAUSE IT IS LIKE RETURNING LOST PROPERTY TO ITS OWNER. It has been stated: R. Abba son of R. Jacob said in R. Johanan's name: The halachah agrees with the Sages. But R. Johanan has already said that once. For Rabbah b. Bar Hana said in R. Johanan's name: Wherever R. Gamaliel taught in our Mishnah, the halachah agrees with him, excepting in respect to 'Surety', 'Zidon', 'And the second [ruling] on Proof'!9 - There is a dispute of Amoraim on R. Johanan's views.10
Now from R. Simeon b. Gamaliel we may deduce that a relative is authorised to enter upon a captive's estate; whilst from the Rabbis we may infer that a relative is not permitted to enter upon a captive's estate.11 How so? Perhaps R. Simeon b. Gamaliel ruled thus only in this case, since the stock itself is consumed, but there he too may hold that we do not authorise possession.12 Whilst [on the other hand] the Rabbis rule thus only here, in accordance with either R. Kahana['s reason] or R. Nahman b. Isaac['s]; but there, it may indeed be that entry is permitted. Are we to say that these are two opinions [independent of each other]? But Rab Judah said in Samuel's name: The halachah agrees with R. Simeon b. Gamaliel; whilst Samuel ruled; A relative is permitted to enter upon a captive's estate. Surely that is because it is one ruling?13 - No. They are two rulings.14 Reason too supports this. For Raba said in R. Nahman's name: The halachah agrees with the Sages; nevertheless R. Nahman ruled: A relative is authorised to enter a captive's estate. Hence this proves that they are two different rulings. This proves it.
It has been stated: If a man is taken captive, Rab said: His next of kin is not authorised to enter upon his estate; Samuel said: His next of kin is authorised to enter into his estate. Now, if it was heard that he was dead, all agree that he is authorised to enter.15 They differ where it was not heard that he had died: Rab said: We do not authorise him to enter, lest he cause them [the estates] to deteriorate;16 but Samuel said: We authorise him to take possession, for since a Master said, 'We value it for them as for an aris',17 he will not permit deterioration.
An objection is raised: R. Eliezer said: From the implication of the verse, And my wrath shall wax hot, and I will kill you with the sword,18 I know that their wives shall be widows and their children fatherless; why then is it stated, and your wives shall be [widows, and your children fatherless]?19 This teaches that their wives will seek to remarry and not be permitted, and their children desire to enter upon their father's estate and not be allowed!20 - Said Raba: What we learnt21 is [that they are not permitted] to take possession and sell.22 Now, this happened in Nehardea, and R. Shesheth decided the matter by reference to this Baraitha.23 Said R. Amram to him: But perhaps what we learnt24 was, to enter and sell? - Perhaps you are from Pumbeditha, he retorted, where they draw an elephant through the eye of a needle.25 For these are26 taught side by side with [the widowhood of] the wives: just as these are not permitted to [remarry] at all, so here too, they [sc. the heirs] are not [allowed to take possession] at all.
Now, whether the next of kin is permitted to enter upon a captive's estate is disputed by Tannaim. For it has been taught: If one enters upon a captive's estate, he is not ejected thence.27 Moreover, even if he [the heir] heard that they [the owners] were making ready to come [to reclaim the land], and he anticipated it by reaping and consuming [the produce], he is a zealous man who profits thereby.28 Now, the following are [included in the term], a 'captive's estates': If one's father, brother, or one of his legators went overseas, and it was reported that he had died.29 If a man enters into abandoned estate, he is ejected therefrom. And the following are abandoned30 estates: If one's father, brother, or one of his legators went overseas, and it was not reported that he had died. R. Simeon b. Gamaliel observed: I have heard that abandoned are as captive['s estates].31 If a man enters into forsaken property32 he is ejected thence. And the following are forsaken estates: If one's father, brother, or one of his legators is here [sc. in the country], but it is not known whither he has gone. Now, wherein do the former differ [from the latter], that the former are designated 'abandoned,' and the latter 'forsaken'?
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(1) That R. Meir rules that it is sold.
(2) To make the leather supple.
(3) To rub the sore spots on the camel's back, caused by the chafing of the saddle.
(4) Since deterioration, in the case of oil and honey, does not go further, whilst its value has already dropped, how is the matter remedied by the sale?
(5) In which they are contained. These at least are saved, whereas if the honey or oil is kept therein they too are affected.
(6) Sc. R. Meir and the Rabbis, since on the present hypothesis R. Meir agrees that produce must be sold if the deterioration exceeds normal.
(7) Therefore when produce suffers its normal decrease, or oil and honey become rancid, and only their containers can be saved - in both cases a small loss - they must not be sold.
(8) To prevent it if possible.
(9) 'Surety', v. B.B. 173b; 'Zidon', v. Git. 74a; 'Second (ruling) on Proof', Sanh. 31a. Thus R. Johanan had already stated that in all cases, excepting these three, the halachah is as R. Simeon b. Gamaliel: why then state it again specifically in respect of our Mishnah?
(10) Rabbah b. Bar Hana held that he had stated a general rule, whilst R. Abba son of R. Jacob disputed it.
(11) If a man is taken captive, leaving his estate untended, it is disputed below whether a relative, sc. his next of kin, may take temporary possession of it, so as to save it from loss. Now, since R. Simeon b. Gamaliel holds that produce may be sold by the bailee to save it from loss, by the same reasoning the next of kin is permitted to enter a captive's estate, the Rabbis holding the reverse.
(12) The produce may entirely rot away, but real estate, even if it suffers loss through neglect, can never be destroyed entirely.
(13) I.e., the two cases are interdependent.
(14) Samuel's two views being coincidental.
(15) Tosaf.: 'heard' means that there was a rumour substantiated by one witness only. - Now, if the rumour is proved false, the owner returning before the usufruct of the estate has been enjoyed by the next of kin, the latter receives pay as a farmer-tenant, aris (v. Glos.); whilst if the rumour is true, he is the heir. Hence he may enter, and there is nothing to fear.
(16) Thinking that the owner may return, he will only be anxious to get as much out of the land as possible, neglecting to fertilise it and so exhausting the soil.
(17) Should the owner return, the relative is given a share in the produce as though he were an aris.
(18) Ex. XXII, 23.
(19) Ibid.
(20) Thus they will remain permanently widows and fatherless (in the sense that they cannot set up their own estate). This condition can come about when the fathers are taken captive and their death is not proved, R. Eliezer's dictum shows that in such a case the children are not permitted to enter their father's estate.
(21) [Render with MS.M.: '(What is meant is that . . .) to take, etc.,' deleting 'What we learnt,' as this citation is not a Mishnah.]
(22) But they are permitted to take possession.
(23) That the heir should not enter the captive's estate.
(24) [Or, 'What was meant was . . . . cf. p. 232, n. 9.]
(25) The scholars of the Pumbeditha academy were extremely subtle.
(26) The children who are not permitted to enter upon their father's estate.
(27) Lit., 'we do not withdraw it from his hand.'
(28) I.e., his action is not blameworthy.
(29) V. p. 232. n. 3.
(30) נטושים.
(31) Viz., that the heirs are not ejected.
(32) רטושים; the Gemara states below that this implies voluntary abandonment.'Abandoned' implies against their will, as is is written, But the seventh year thou shalt let it rest and abandon it,1 [i.e.,] by royal dispensation;2 whereas 'forsaken' implies voluntarily, as it is written, The mother shall be forsaken3 of her children.4
A Tanna taught: And for all these a valuation is made as for an aris.5 To what does this refer? Shall we say, To captives: if he is considered 'a zealous man who profits thereby,'6 can there be a question concerning his own improvements!7 But if to forsaken property - surely it is taught that they are ejected therefrom! - Hence It must refer to abandoned [property]. [Then] according to whom? Shall we say, according to the Rabbis: but they rule that he is ejected therefrom. If R. Simeon b. Gamaliel, surely he observed, 'I have heard that abandoned are as captives' [estates]! - 'They are as those of captives', but not altogether so:8 'as those of captives,'in that they are not ejected therefrom; 'but not altogether so,' for there [sc. in the case of captives' estate] he is considered a zealous man who profits thereby, whereas here a valuation is made for him as for an aris.9
Now, wherein does it differ from what we learnt: If a man incurs expenditure on his wife's property, [whether] he expended much and enjoyed little [usufruct] or the reverse, what he expended he expended, and what he enjoyed he enjoyed!10 This is analogous only to what we learnt:11 If a man incurs expenditure for the property of his wife, a minor, he is regarded as though he had incurred it for that of a stranger.12 This shows that since he [her husband] could not place full reliance,13 the Rabbis enacted a measure on his behalf,14 in order that he might not cause them [the wife's estates] to deteriorate;15 so here too, the Rabbis enacted a measure on his behalf, so that he might not cause them [the abandoned estates] to deteriorate.
'And for all of these a valuation is made as for an aris.' What does 'all of these' include? - It includes R. Nahman's dictum in Samuel's name: If a man is taken captive, his next of kin is authorised to enter into his estates. If he leaves voluntarily, his next of kin is not permitted to enter upon his estates.16 Now R. Nahman, giving his own opinion, said: A fugitive is as a captive. Why does he flee? Shall we say, on account of poll-tax? But that is voluntary!17 - But [he means] one who flees on account of political offences.18
Rab Judah said in Samuel's name: If a man is taken captive, and leaves standing corn to be reaped, grapes to be vintaged, dates to be harvested, or olives to be gathered, Beth din enter his estate and appoint a steward who reaps, vintages, harvests and gathers; after that the next of kin is permitted to take possession.19 Then let a permanent steward be appointed!20 - A steward is not appointed for bearded men.21
R. Huna said: A minor is not permitted to enter upon a captive's estates, nor the next of kin upon a minor's estates, nor a next of kin of a next of kin upon a minor's estates.22 'A minor is not permitted to enter upon a captive's estates,' lest he injure them. 'Nor a next of kin of a next of kin upon a minor's estates' - this refers to a brother on the mother's side.23 'Nor a next of kin upon a minor s estates:' since he [the minor] cannot protest, he may take presumptive possession thereof.24 Said Raba: It follows from R. Huna's dictum that one cannot claim presumptive ownership of a minor s estate,25
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(1) ונטשת Ex. XXIII, 11; the reference is to the seventh year, in which land and its produce must be 'abandoned' - i.e., left free for all.
(2) By Scriptural command; hence against the owner's desire.
(3) רטשה.
(4) Hos. X, 14; Rashi explains that the reference is to voluntary flight, for fear of the ensuing war.
(5) V. Glos.
(6) And takes the whole of the produce (Rashi).
(7) Surely they belong entirely to him, not merely a third or quarter, as in the case of an aris.
(8) Lit., 'as captives and not as captives.'
(9) For since it was not reported that the owner had died, the heir is assumed to have entered into his estates on the tacit understanding that he should be paid as an aris.
(10) Keth. 79b. The reference is to 'property of plucking,' the usufruct of which belongs to the husband, whilst the principal remains the wife's, reverting to her on the husband's death or if he divorces her. - In this case then the husband or his heirs cannot strike a balance between expenditure and revenue, and the question is raised, Why not give the same ruling in the case of abandoned property, instead of regarding the next of kin as an aris.
(11) In Keth. 80a the reading is: to what R. Jacob said in R. Hisda's name.
(12) The wife referred to is a fatherless child, who had not attained her majority. By Biblical law, only a father could contract a marriage on behalf of his daughter, a minor, but the Rabbis extended the privilege to her mother or brothers, in the absence of a father. (She herself cannot contract a marriage, her actions, as a minor, having no legal validity.) This marriage having only Rabbinical force, she could annul it, on attaining her majority, by declaring that she did not want her husband (mi'un), whereon she became free without the formality of a divorce.
(13) That the estate would remain in his possession, as she might annul the marriage.
(14) Sc. that he should be paid as an aris if his wife annulled the marriage.
(15) Through his neglect.
(16) [Had he approved of his next of kin, he himself would have appointed him over his estate before he left.]
(17) Surely he himself could have managed to appoint some one before he left, as there was no reason for the hasty flight.
(18) Others: 'murder'. The penalty being a very heavy one, his flight is not voluntary. This case of R. Nahman is included in the term, 'all of these.'
(19) And is paid as an aris. But he cannot take that which is completely grown without his toil.
(20) Rashi: who will receive nothing for his stewardship.
(21) No one is prepared to work for nothing on behalf of grown men. Stewards are indeed appointed on behalf of minors left fatherless, because stewardship then is regarded as a good deed.
(22) E.g., A is the brother of B, a minor, by the same father, whilst C is A's half brother by his mother, hence no blood-relation of B at all.
(23) As explained in n. 1.
(24) If one enjoys three consecutive years' possession of an estate, without its owner formally protesting that it is not his, he is assumed to have bought or otherwise acquired it. Now, a minor cannot protest, and so the relative may claim it as his after three years, on the ground that he, and not the minor, had inherited them; the same applies to the relative's relative (as explained in n. 1), who may claim it as heir of the first next of kin.
(25) A cannot claim that he bought the estate from B, the minor's father, on the strength of three years' undisturbed possession. This follows from the fact that R. Huna merely forbade a relative to enter upon a minor's estates, but not a stranger, which shows that a stranger's claim of presumptive ownership is ignored.even if he attained his majority.1 Now, this applies only to a brother by his father,2 but there is no objection to a brother by his mother. And even of a brother by his father, this applies only to land; but there is no objection in respect of houses.3 And even in respect of land, this holds good only if no deed of partition was drawn up.4 But if a deed of partition had been drawn up, it is generally known.5 This, however, is not so. It makes no difference whether a brother by his father or a brother by his mother,6 whether land or houses, whether a deed of partition had been drawn up or not - we do not authorize them to take possession.
A certain old woman had three daughters; she and one daughter were taken captive, and of the other two daughters, one died, leaving a child behind. Said Abaye: What shall we do? Shall we [temporarily] assign the estates to the [third] Sister: but perhaps the old woman is dead, and a relative is not permitted to enter upon a minor's estates?7 Shall we assign the estates to the child, but perhaps the woman is not dead, and a minor is not permitted to enter a captive's estate? - Said Abaye: Therefore half is given to the [last] sister, and a steward is appointed in respect of the other half on behalf of the child. Raba said: Since a steward is appointed for one half, a steward is appointed for the other half too. Subsequently it was heard that the old woman was dead.8 Thereupon Abaye ruled: A third is given to the sister, a third to the child, and as for the remaining third,9 a sixth is given to the sister, and a steward is appointed for the other sixth on behalf of the child. Raba said: Since a steward is appointed for one sixth, a steward is appointed for the other sixth.
There came a brother to Mari b. Isak from Be Hozai,10 saying to him, 'Divide [my father's estates] with me.' 'I do not know you,' he replied. So they went before R. Hisda. Said he to him, 'He [Mari] speaks truly to you, for it is written, And Joseph knew his brethren, but they knew him not,11 which teaches that he had gone forth without the stamp of a beard and came [before them] with one.12 Go then,' he continued, 'and produce witnesses that you are his brother.' 'I have witnesses,' he replied, 'but they are afraid of him, because he is a powerful man.' Thereupon he said to the other [Mari], 'Go you, and bring witnesses that he is not your brother.' 'Is that justice!' he exclaimed, 'the onus of proof lies on the claimant!' 'Thus do I judge in your case,' he retorted, 'and for all who are powerful men of your like'. 'But after all,' he argued, 'witnesses will come and not testify [the truth]'.13 'They will not commit two [wrongs],' he rejoined.14 Subsequently witnesses came [who testified] that he was his brother. 'Let him share with me the vineyards and gardens which he planted,' demanded he. 'He speaks rightly to you,' said he [R. Hisda], 'For we learnt: If one leaves sons, adults and minors, and the adults improve the property, they improve it for both equally;15
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(1) After which the stranger had it in his possession three years. But this does not establish a claim, since he took possession whilst the orphan was a minor, who on attaining his majority may not have known that the estates were his father's, and hence did not protest.
(2) Who may claim that he inherited the estates.
(3) Since the neighbours can testify to their rightful ownership.
(4) Distinctly setting forth the portion of each.
(5) Lit. 'it has a voice'. Hence there is no fear of a false claim.
(6) [As he can still claim it to be property belonging to his mother in her own right, to which he is entitled as heir.]
(7) For if she had died, part of her estates belonged to the grandchild.
(8) But nothing was known of the daughter.
(9) The share of the captive daughters.
(10) V. p. 508, n. 2.
(11) Gen. XLII, 8.
(12) So Mari may not recognise you too, even if you are his brother.
(13) If they are afraid of me, they will certainly testify in my favour whether it be the truth or not.
(14) Witnesses who can testify to your disadvantage may repress their evidence through fear of you, which is one wrong. But they will certainly not commit another by testifying falsely in your favour.
(15) Lit., 'in the middle'. (V. B.B. 143b.) I.e., the minors take an equal share of the improvements.and thus did Rabbah rule likewise, They improve it for both equally.'1 Said Abaye to him:2 How compare? There the adults are aware of the [existence of the] minors, and forego [their labour on their behalf]; but here, was he [Mari] aware [of him], that he should forego! Now, the matter travelled about3 until it reached R. Ammi. Said he to them [his disciples]: Even a greater thing has been said, [viz.,] A valuation is made for them as for an aris:4 shall he then not be paid [likewise] in his own!5 This [observation] was brought back to R. Hisda. Said he to them: How compare? There [in the case of a captive's estates] he entered with authority [of the court]; here he entered without authority.6 Moreover, he [the claimant] was a minor [when Mari first took possession], and a relative is not permitted to enter into a minor's estates. When this [reply] was taken back to R. Ammi, he said to them: They did not complete it [sc. the narrative of this lawsuit] before me [by informing me] that he was a minor.
MISHNAH. IF A MAN ENTRUSTS PRODUCE TO HIS NEIGHBOUR, HE [THE BAILEE] MAY [WHEN RETURNING IT] MAKE A DEDUCTION FOR DECREASES [AS FOLLOWS]: FOR WHEAT AND RICE, NINE HALF KABS PER KOR;7 FOR BARLEY AND MILLET, NINE KABS PER KOR; FOR SPELT AND LINSEED, THREE SE'AHS PER KOR: ALL DEPENDS ON THE QUANTITY AND THE TIME.8 SAID R. JOHANAN B. NURI: WHAT DO THE MICE CARE; THEY EAT [THE SAME] WHETHER THE QUANTITY BE LARGE OR SMALL! HENCE HE MAY MAKE DEDUCTIONS ONLY FOR ONE KOR. R. JUDAH SAID: IF IT IS A LARGE QUANTITY HE CANNOT DEDUCT DECREASES AT ALL, BECAUSE IT INCREASES.9
GEMARA. But rice decreases by much more! - Said Rabbah b. Bar Hanah in R. Johanan's name: This refers to peeled rice.
FOR SPELT AND LINSEED, THREE SE'AHS PER KOR etc. R. Johanan said in R. Hiyya's name: This refers to linseed in its calyxes.10 It has been taught likewise: For spelt and linseed in its calyxes and unpeeled rice, three se'ahs per kor.
ALL DEPENDS ON THE QUANTITY etc. A Tanna taught: It is thus per kor per annum.
SAID R. JOHANAN B. NURI etc. It has been taught: They [the Sages] said to R. Johanan, Much of it deteriorates and much is scattered.11
A Tanna taught: This holds good only if he [the bailee] mixed it with his own produce. But if he assigned him a special corner he can say to him, 'Behold, here is yours before you.'12 But what if he did mix it with his crops: let him see how much his own was!13 - It refers to one who drew his supplies therefrom. Then let us see how much he drew? - He does not know.
R. JUDAH SAID: IF IT IS etc. What constitutes a LARGE QUANTITY? - Said Rabbah b. Bar Hanah in R. Johanan's name: Ten kors. It has been taught likewise: What constitutes a large quantity? Ten kors.
A tanna recited before R. Nahman: When was this said? If he measured [the corn] for him out of the granary and returned [it] to him out of the granary. But if he measured [it] for him out of the granary and returned it to him out of the house, he may make no deduction for decreases, because it [the quantity] increases.14 Are we dealing with imbeciles, he retorted, who give with a large measure and take back with a small! Perhaps you mean the season of the granary.15 [Thus:] When is this said? If he measures it out to him at the harvest season and returns it to him in the harvest season. But if he measures it out to him at the harvest season and returns it to him in the rainy season [winter], he may make no deduction for decreases, because it increases.16 Said R. Papa to Abaye: If so, the barrel [containing produce] ought to burst! - It did once happen that the barrel [did in fact] burst. Alternatively, it [the reason that the barrel does not generally burst] is on account of the tightness [of the crops].17
MISHNAH. HE MAY DEDUCT A SIXTH IN THE CASE OF WINE. R. JUDAH SAID: A FIFTH. HE MAY DEDUCT THREE LOGS OF OIL PER HUNDRED, WHICH IS A LOG AND A HALF FOR LEES, AND ONE AND A HALF FOR ABSORPTION.18 BUT IF IT WAS REFINED OIL, HE MAY MAKE NO DEDUCTION FOR LEES. IF THEY [THE CONTAINERS] WERE OLD BARRELS, HE MAY MAKE NO DEDUCTION FOR ABSORPTION.19 R. JUDAH SAID: EVEN IF HE SELLS REFINED OIL TO HIS NEIGHBOUR DURING THE WHOLE YEAR, THE LATTER MUST ACCEPT A LOG AND A HALF OF LEES PER CENT.20
GEMARA. But there is no dispute; each master rules in accordance with his region. In the locality of the first master they covered [the inside of the wine barrels] with wax, so there was not much absorption;21 whilst in that of the other [sc. R. Judah] they covered [them] with pitch; hence they absorbed more.22 Alternatively, it is on account of the clay [used in making the barrels]; the one quality absorbed more, the other less.
In Rab Judah's locality forty-eight jugfuls went to the [standard] barrel, a barrel being sold at six zuz, and Rab Judah retailed six [jugfuls] per zuz.
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(1) Rashi, regarding this last phrase, 'and thus etc.', as a continuation of R. Hisda's statement, substitutes Rab for Rabbah; firstly, because Rabbah was R. Hisda's pupil, and he would not quote his pupil's views in support of his own; and secondly, because an Amora is never adduced in support of a Mishnah. But Rab was his teacher, and he is cited not in support of the Mishnah, but in explanation thereof; as there is a view that this Mishnah refers only to a natural improvement, he quoted Rab as holding that it refers even to improvements directly effected by the brothers. Tosaf. retains our reading, explaining that this is not a continuation of R. Hisda's speech, but an observation by the Talmudic redactor that Rab once gave a similar ruling.
(2) [To Rabbah (according to Tosaf.).]
(3) Lit., 'the matter rolled on'.
(4) V. supra 39a, in reference to a next of kin who enters into a captive's estates; on the latter's return, the former is paid for his improvements as an aris, receiving a half, third or a quarter, in accordance with local usage, though, of course, the land was not his at all.
(5) Even if the claimant is entitled to half of the improvement, surely Mari is entitled to a fraction of that half, as though he were an aris! R. Hisda, however, had not allowed for this.
(6) On his father's death he took possession without a court order.
(7) 1 Kor = 30 se'ahs = 180 kabs.
(8) I.e., these pro rata decreases hold good whatever the quantity; also, they are dependent on the time the produce is stored - the Gemara states that these are per annum.
(9) This is discussed below.
(10) Since they dry up and are blown away by the wind, the decrease is so large. But pure linseed does not suffer so great a loss.
(11) Besides the depredations of mice; therefore it does depend on quantity.
(12) Whatever the decrease.
(13) And knowing the combined quantity and by how much the whole has decreased, make a proportionate deduction.
(14) The measures used in the granary were larger than house measures, hence the same quantity shows a larger figure when measured by the latter; this increase counterbalances the normal decrease.
(15) I.e., summer, when the corn is harvested into the granary.
(16) In winter the crops swell up, the resultant increase counterbalancing the normal loss.
(17) Tightly pressed together in the barrel, they have no room to expand and cause it to burst.
(18) The barrels absorb that quantity.
(19) Old barrels have already absorbed as much as they can contain.
(20) I.e., if the vendor sells a quantity of oil but keeps it in his own barrels, supplying it in smaller quantities to the vendee as and when desired. Having received 98 1/2 logs of pure oil without sediment, the vendee must now accept 1 1/2 of lees.
(21) Not more than a sixth.
(22) Sc. a fifth.Now, deduct thirty-six [from the forty-eight] for six [zuz],leaves twelve; deduct eight, which is the sixth [allowed for absorption], leaves four.1 But Samuel said: He who profits must not profit more than a sixth?2 - There are the barrels and the lees.3 If so, it exceeds one sixth. - There is his trouble, and the cost of the crier.4
IF IT WAS REFINED OIL, HE MAY MAKE NO DEDUCTION FOR LEES etc. But it is impossible that it [the barrel] shall not absorb!5 - Said R. Nahman: This refers to [barrels] lined with pitch.6 Abaye said: You may even say that they are not pitch lined: being laden, they are laden.7
R. JUDAH SAID: EVEN IF HE SELLS REFINED OIL TO HIS NEIGHBOUR DURING THE WHOLE YEAR, THE LATTER MUST ACCEPT A LOG AND A HALF OF LEES PER CENT. Abaye said: When you examine the matter, [you will conclude that] in R. Judah's opinion lees may be mixed [with the oil]; whilst on the Rabbis' view lees may not be mixed. 'In R. Judah's opinion lees may be mixed,' and that is the reason that he [the vendee] must accept [the lees],8 because he [the vendor] can say to him, 'Had I desired to mix it up for you, could I not have done so? therefore now too, accept it.'9 But let him answer, 'Had you mixed it up for me, it could have been sold [together with the rest]: but what am I to do with it now? I cannot sell it separately!' - This refers to a private individual, who prefers clear [oil].10 But let him say to him, 'Since you did not mix it up for me, you have renounced it in my favour?'11 - R. Judah follows his general reasoning, not accepting [the theory of] renunciation. For we learnt: If one sells the yoke, he has not sold the oxen; if he sells the oxen, he has not sold the yoke. R. Judah said: The price decides [the matter]. E.g., if one says to another, Sell me your yoke for two hundred zuz, it is well known that a yoke is not priced at two hundred zuz.12 But the Sages say: The price is no proof.13
'Whilst on the Rabbis' view lees may not be mixed,' and that is the reason that he [the vendee] need not accept [the lees], because he can say to him [the vendor], 'Had you desired to mix it up,14 would it then have been permitted to you? Now too, [therefore,] I will not accept it.'
R. Papa objected to Abaye: On the contrary, the logic is the reverse. On the view of the Sages lees may be mixed up, and that is the reason that he need not accept it, because he can say, 'Since you did not mix it up for me, you have renounced it in my favour. Whilst in the opinion of R. Judah lees may not be mixed up, and this is the reason that he must accept it, because he can say to him, 'Had I desired to mix it up, it would not have been permitted to me, whilst you also refuse to accept it [separately]: if one buys and sells [at the same price] - do you call him a merchant!'15
A Tanna taught: The vendee and the depositor are both alike in respect of the scum.16 What is meant by 'in respect of the scum?' Shall we say, Just as the vendee does not accept the scum, so does the depositor likewise not accept it?17 But let him [the bailee] say to him, 'What am I to do with your scum?' But [on the contrary], just as the depositor must accept the scum, so must the purchaser likewise. Yet must the vendee accept the scum: but it has been taught: R. Judah said: [The loss due to] the muddy oil was assigned to the vendor alone, since the vendee accepts a log and a half of sediment without the scum!18 - There is no difficulty: The former treats of one who pays his money in Tishri and received [the wine or oil] in Nisan at Tishri prices;19 the latter treats of one who pays his money in Nisan and receives [the oil] in Nisan at Nisan prices.20
MISHNAH. IF A MAN DEPOSITS A BARREL WITH HIS NEIGHBOUR, ITS OWNER NOT DESIGNATING A PLACE FOR IT, AND HE [THE BAILEE] MOVES IT AND IT IS BROKEN, IF IT IS BROKEN WHILST IN HIS HAND,21 - [IF HE MOVED IT] FOR HIS PURPOSES, HE IS RESPONSIBLE; FOR ITS OWN NEED, HE IS NOT RESPONSIBLE. IF IT IS BROKEN AFTER HE PUTS IT DOWN, WHETHER [HE MOVED IT] FOR HIS NEED OR FOR ITS OWN, HE IS NOT LIABLE. IF THE OWNER DESIGNATES A PLACE FOR IT, AND HE MOVES IT AND IT IS BROKEN, WHETHER WHILST IN HIS HAND OR AFTER HE PUTS IT DOWN, - [IF HE MOVED IT] FOR HIS PURPOSES, HE IS RESPONSIBLE; IF FOR ITS OWN NEED, HE IS NOT LIABLE.
GEMARA. Who is the authority of the Mishnah? - It is R. Ishmael, who ruled: The owner's knowledge is unnecessary.22 For it has been taught: If one steals a lamb from a fold or a sela' from a purse, he must return it whence he stole it:23 this is R. Ishmael's view. R. Akiba said:
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(1) This then was his profit - 4 in 48 = 1/12 th.
(2) Yet 1/6 th is permissible: why then did Rab Judah content himself with 1/12 th?
(3) Which augment his profits.
(4) Who announced the wares. Others: the cost of piercing the bung.
(5) Even if old.
(6) These, if old, do not absorb.
(7) And cannot absorb more.
(8) As stated in the Mishnah.
(9) I.e., having received the refined oil in small quantities without lees, you must now accept one and a half logs of sediment separately.
(10) He bought it for his own use, not to resell, and therefore is glad that pure oil was delivered him; consequently he must accept the sediment separately.
(11) I.e., your right to mingle the lees with the oil.
(12) Hence he must have meant the yoke and the oxen.
(13) B.B. 77b. The vendee may have chosen this method of renouncing his money, i.e., gifting it, to the vendor. Since R. Judah rules that the price does prove the meaning of the terms used, he evidently rejects this plea of renunciation.
(14) After it had settled at the bottom.
(15) I.e., unless I am permitted to make a deduction from the quantity on account of the lees, I cannot make a living.
(16) Of the wine or oil. So translated by Rashi. In H.M. 228, 20 it is translated: 'the muddy oil which ascends to the top' (באר הגולה a.l.). Jast. translates: 'the foam or froth of the wine or oil'; this, however, seems unsuited to the context.
(17) The measure bought by the vendee is calculated without the scum; and when the wine or oil is returned to the depositor, he too may insist that the measure due to him shall be calculated without it.
(18) Since 1 1/2 per cent is sediment (v. supra 40a) he is entitled that the rest shall be quite clear, without scum.
(19) In Tishri the oil is generally turbid with a scum on top, the price being correspondingly low. Hence in this case he must accept it.
(20) Which are higher, because by then the oil is clear and free from scum; hence he can refuse it.
(21) Lit., 'out of his hand'.
(22) The first clause states that if he moves it for his own purpose, puts it down, and then it is broken, he is not responsible. Now, when he moves it for his own purpose, he is regarded as having stolen it, since a bailee must not make any use of a bailment, and there is a view, expressed immediately in the Gemara, that when a person steals an object he is responsible for it until he returns it and informs its owner that he has returned it. R. Ishmael holds that the owner's knowledge is unnecessary. Now, when the bailee puts the barrel down, he returns it to its owner, of course, without the owner's knowledge, and since the Mishnah rules that he is not responsible then, it must agree with R. Ishmael.
(23) After which he ceases to bear responsibility for it.
