21b-22a: Unintentionally Abandoning Objects (3)

Summary of last week's shiur:

  We have begun the process in which Abaye and Rava's opinions about yeush she-lo mida'at are tested out.  The gemara introduced a series of  precedents based upon our mishna that challenged Abaye's position that yeush she-lo mida'at is not yeush.  The theme of all the precedents was the same:  we quoted cases from the mishna, and later on a baraita, in which the finder can keep a lost object.  In none of these cases is there an explicit requirement that the owner be aware of the loss in order for yeush to be effective, implying that so long as the lost object does not have simanim, the finder may keep it even before the owner has discovered his loss.  The rebuttal of all these precedents was more or less the same:  According to Abaye, all these cases of "finder's keepers" must be understood in light of Rav Yitzchak's rule that a normal person checks his purse at frequent intervals.  The various cases of yeush mentioned in the mishnah and baraita are all examples of things that a normal person is aware of their loss almost immediately, and only because of that can we say "finder's keepers."

This week's shiur:  Open your gemara and learn from ...ת"ש מאימתי כל אדם ("Ta shema mei-eimatai kol adam...") until עניים דהתם מלקטי ליה ("'aniim de-hatam melaktei lei") - lines 1-4 in the schematic analysis. 

    This time the gemara quotes a mishna in tractate Pe'ah, dealing with the mitzva of "leket".  The mishna teaches us that when the "nemushot" have passed through a field, then the remaining gleanings are no longer dedicated exclusively to the poor.  From that point on, anyone can collect the last remaining gleanings.  Before explaining how this mishna is relevant to out makhloket, the gemara pauses to explain the unusual term "nemushot." Two interpretations are offerred:  R. Yohanan says that the nemushot are the old men who walk with a staff, while Reish Lakish claims that the nemushot are the second wave of gleaners.  Since the gleanings of the field are allotted to the poor, we can say that the collective poor have first right to the gleanings.  This mishna teaches us that this right has a limit.  After a certain point, we assume that the poor have had their chance and whatever is left is simply hefker, abandoned, ownerless property.  This point is defined by the mishna as when the nemushot have passed through. 

    How is the mishna about the nemushot relevant to our sugya of yeush she-lo mi-da'at?  The gemara understands that the reason why the passage of the nemushot marks the end of the special right of the poor to the leket is because from that point forward the poor are mityaesh from the leket.  In other words, the collective poor abandon hope of extracting any more from a field once the nemushot have passed through.  Any gleanings found there afterwards are thus hefker.  We can see now how this halakha is relevant:  The leket becomes permitted to all through the yeush of the poor.  The gemara then points out that regarding any particular field, the local poor's yeush is informed, is yeush mi-da'at, but the right to the leket is not limited to the locals.  Any poor person has a theoretical right to the leket and the poor from elsewhere are not aware that the nemushot have passed through.  Since they (the non-local poor) would certainly be mityaesh if they knew that the nemushot had passed through, it appears that the case of leket is a case of yeush she-lo mi-da'at!  How can Abaye claim that yeush she-lo mi-da'at is not yeush given the mishna about leket? 

   The gemara defends Abaye's position with the claim that the non-local poor do not abandon their rights to the leket only after the nemushot pass through. The local poor are mityaesh with the passage of the nemushot.  The poor of other places, however, initially give up hope of collecting leket elsewhere.  Theoretically, all the leket of all of Israel belongs collectively to all the poor.  However, since every place has its own poor people who collect leket, every poor person knows that he has no chance of collecting leket in some other place.  He or she therefore abandons hope from the start regarding the leket of other places.  Thus, regarding non-local poor, their abandonment of the leket is a case of yeush mi-da'at and not relevant to our discussion. 

Let us continue with the gemara.  Learn from "Ta shema ketziot ba-derekh..."  תא שמע: קציעות בדרך... until the next Ta shema, lines 5-10 in the schematic analysis. 

Here we encounter a quote from a mishna in Tractate Ma'asrot.  This mishna describes a familiar situation:  Fruit (in this case figs cut and left to dry) from an orchard that has fallen into a public area.  Does it still belong to the owner of the orchard?  Can passersby take it?  The mishna teaches us a distinction between different fruits.  Figs (both cut and whole)are permitted, and one is not a thief if one takes them.  In addition, there is no requirement to tithe such figs.  Carobs and olives, on the other hand, are forbidden.

    Why need one not take tithes from the figs in the road?  Look in Rashi s.v."u-peturot min ha-ma'aser" ופטורות מן המעשר, about 3/4 of the way down the page.  Rashi explains that these figs are understood to be hefker (ownerless), and teaches us that in general hefker produce need not be tithed.

    It would appear that at least the first part of this mishna (the gemara refers to it as the reisha רישא), regarding figs, also furnishes support to Rava's position.  After all, the owner of the field does not know that his figs have fallen into the road, and yet the figs are still hefker, presumably because he will be mityaesh when he discovers the loss.  However, the gemara immediately dismisses this threat to Abaye's position.  Cut figs are a valuable commodity and we can presume that the owner checks frequently, is aware of any figs that have fallen in the road, and has been mityaesh.  So too, with the figs that have fallen off the tree hanging over the road.  Since the owner knows that the figs are likely to fall off the tree, he is initially mityaesh from those figs hanging over the road.  

    Actually, says the gemara, it is the seifa, the second part of the mishna, regarding carobs and olives that is interesting.  This halakha challenges Rava's position.  If the owner of the field is going to be mityaesh eventually, why cannot one take the carobs and olives that have fallen in the road?

    R. Abahu explains: Since olives (and presumably carobs, though the gemara oddly does not mention them) are identifiable, i.e. one can tell which type of tree (and hence which field) they came from,  everyone knows that these olives belong to the owner of the field. Hence, the owner will not be mityaesh.  Note here that we are following the corrected text of the gemara.  Instead of the word "duchta" דוכתא, we are glossing "de-zeita" דזיתא, following the tiny writing right next to the printed gemara text.  The asterisk next to the the word "duchta" points to the correction.  Rava holds that yeush she-lo mi-da'at is yeush, but in the case of the seifa, of the olives fallen into the road, there is no yeush at all, and this baraita is no threat to his position. 

    The gemara, however, immediately notices that the logic of the seifa, of the case of olives, can just as easily be applied to the reisha, to the case of the figs.  If we do not allow passersby to take fallen olives because people understand that these fruits come from the adjoining field, and thus the owner is not mityaesh, why do we allow people to take the fallen figs in the same situation?  Why do we presume yeush for figs and not for olives?

    Rav Papa comes to the rescue of Rava's position. According to Rav Papa, figs are different from olives in that upon falling from the tree they become disgusting (anyone who has a fig tree can testify to this - soft figs often explode on impact).  Why does this make a difference?  Let us take a look at Rashi to help us understand how Rav Papa's point is relevant.  The relevant Rashi is s.v. "im nefilata nim'eset" עם נפילתה נמאסת, the second to last Rashi on the page, text and translation appear at the end of the schematic analysis. 

    According to Rashi's interpretation of Rav Papa, the distinction between figs and olives lies in the owner's expectations.  Figs are both likely to fall, and likely to subsequently become disgusting, so the owner initially gives up on any figs that end up in the public thoroughfare.  Thus, even though the passersby know that figs on the road come from the adjacent field, they still may take them.  This is the case even with figs that are not disgusting, for the owner has been mityaesh from all figs that make their way into the road because of the likelihood of their becoming disgusting.  Olives, on the other hand, generally do not fall and even when they do, they remain intact.  In such circumstances, the owner relies on the decency of the passersby that they will not take what obviously belongs to him, and thus he or she (the owner) is not mityaesh.

    We will look at one more Ta shema.  Learn from "Ta Shema ha-ganav...תא שמע הגנב"  until the next Ta Shema (until the end of the fourth line on 22a).  Use lines 11-15 of the schematic analysis.  Here we encounter a baraita* about property that has changed

a "ganav" or a "gazlan" or even a river (see Rashi - the Jordan is just an example) has taken property from one person and "given" it to another, that property now belongs to the new owner. 

    Without entering into the nuances of a complicated discussion that appears in Tractate Bava Kama, let us posit that stolen goods, if they change hands after the victim has been mityaesh, are no longer recoverable.  Of course, the thief must reimburse the victim, but the victim cannot sue the buyer in order to recover the actual object after is has been established that he or she was mityaesh.  Given this fact, the gemara points out that in the case of a gazlan or a flood, where the victim is necessarily aware immediately of his or her loss, and presumably is mityaesh*

of recovering it, it is clear why the third party (the buyer or the person who recovered it from the river)can keep the object.  However, in the case of the ganav, we cannot assume that the victim is aware of his or her loss!  If the right of the buyer to keep the stolen object depends upon yeush, this would appear to be a case of yeush she-lo mi-da'at!  The actual yeush may not yet have taken place and yet we still allow the buyer from a ganav to keep the the stolen object.

    Rav Papa explains how this baraita sets no precedent.  According to Rav Papa, Abaye understands the term "ganav" as it appears in this baraita to refer to armed robbers and not burglars.  Thus, in all the circumtstances listed in the baraita, the original owner is aware of the loss and is mityaesh in practice.    The gemara then asks the obvious question:  according to Abaye's reading, the baraita is redundant. Why does the baraita need to include armed robbers as a separate category - are they not just another type of gazlan? 

    Apparrently, the gemara does not view this redundancy as a significant difficulty for Abaye.  The response is to quite simply accept the redundancy. Indeed, according to Abaye, the baraita list two types of gazlan.  This redundancy is not sufficient reason for Abaye to concede that the baraita implies that yeush she-lo mi-da'at is valid.

    To sum up: In this week's shiur, we have continued our discussion of yeush she-lo mi-da'at.  We examined three precedents which seemed to point one way or the other, and each time we saw that the mishna or baraita can be interpreted in accordance with both opinions about yeush she-lo mi-da'at. Along the way we learned about the laws of leket, tithing, and theft, as well as something about the difference between figs and olives.  This eclectic collection of knowledge is one of the great pleasures of gemara learning - though we are indeed focused on a single subject - yeush she-lo mida'at, the Sages, in the breadth of both their knowledge and interests, allow us to peek into multiple worlds.         

Schematic Analysis of Bava Metzia 21a-22b

 "ת"ש:  מאימתי כל אדם...  אין מרדפין - אייאושי מיאש"

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