Elu Metziot #3

  • Rav Joshua Amaru

Elu Metziot #3

     Summary of last week’s shiur: the gemara discussed the ‘scattered fruit’ that appeared in the mishna’s list of items that a finder can keep.  At first, we tried to define ‘scattered’ according to R. Yitzhak’s ratio of one kav scattered over four amot.  We concluded that this will not do; it ignores the crucial issue of whether the found object was lost or was deliberately placed there by the owner with the intention of retrieving it. 

     However, R. Yitzhak’s ratio is relevant if we apply it to the leavings of the threshing floor that were deliberately left by the owner.  Using the R. Yitzhak’s principle, we can presume that the owner is not coming back and has abandoned the fruit if it is sufficiently dispersed.  R. Yirmiah then asked a series of questions as to the applicability of R. Yitzhak’s dispersal rule.  All of the questions pointed to the tension between the amount of fruit and the degree of dispersal (and associated difficulty to gather) in determining whether the owner will return.  These questions were left unresolved.

     In this week’s shiur, the gemara addresses the concept of yeush that is so central to the halakhot regarding lost objects.  More particularly, it tries to establish whether yeush can take place retroactively; i.e., what happens when someone finds a lost object whose owner will certainly be mityaesh but simply has not yet done so (because he is not yet aware that he has lost it).  Is this future yeush sufficient to allow the finder to keep the lost object?  This question was debated by two famous Amoraim, Abaye and Rava.*  This debate stretches over the next daf (until 22b).  We will study the first part of it today. Learn from “Itmar…” (last word on 21a)until “(siman…)” (last word on line 14 on 21b).  Take a look at lines 1-7 in the schematic analysis.  As always, first try to make your way through the passage by yourself.  Make sure that you understand all the words.  You can make use of the vocabulary page

Biographical notes:

Abaye and Rava.  These sages were the leading scholars of the fourth generation (circa 300-350 C.E.). of Babylonian Amoraim, and in many ways the central figures of the Babylonian Talmud. Their machlokot and discussions range across the length and breadth of the Talmud such that the gemara is sometimes referred to as ‘havayot de-Abaye ve-Rava’, the doings of Abaye and Rava. 

                Abaye was an orphan and was brought up by his uncle Raba bar Nachmani (usually called simply Raba) who was the head of yeshiva in Pumbeditha.  Abaye studied with his uncle and with Rav Yosef, who succeeded Rabba as head of the yeshiva.  Abaye went on to succeed Rav Yosef.

                Rava was primarily a student of Rav Nachman, Rav Hisda, and Rav Yosef.  He is famous for his sharp reasoning and critical analysis and was himself the head of a yeshiva in Mechoza.  Upon Abaye’s death the yeshiva of Pumbedita was moved to Mehoza and Rava became its head.  In the many makhlokot between Rava and Abaye, the halakha follows Rava, with the exception of six cases that are known by their acronym:  יע"ל קג"ם. 


         As we said above, Abaye and Rava disagree over whether yeush she-lo mi-da’at, unaware, anticipated yeush, counts as yeush (and accordingly allows the finder to keep the lost object).  According to Abaye, yeush she-lo mi-da’at does not count as yeush.  It may be true that the owner, upon discovering the loss, will give up hope of ever getting it back.  However, this fact is irrelevant right now, since he or she is unaware of the loss and therefore has in no way severed his of her connection to the object such that the finder can keep it.  The finder, in picking up the object, merely becomes the guardian of an object that belongs to another.  Rava disagrees and claims that potential yeush is enough.  Since the owner has no chance of recovery and will recognize that fact when he or she realizes that the object is lost, we allow the finder to keep the lost object. 

     After stating the two positions, the gemara then focuses the argument:  what that exact case or scenario in which Abaye and Rava disagree?

     The first case excluded from the makhloket regards a lost object that has a siman. In this scenario, claims the gemara, Rava would concede that yeush she-lo mi-da’at does not count as yeush, even when the owner explicitly gives up hope of recovery later on.  The reason for this is as follows:  ‘since it came into his (the finder) possession illegally, at the moment that the owner discovered the loss he is not mityaesh but rather says to himself: “I have a siman which I will present and recover the object.”’  This passage is difficult to understand.  Let us take a closer look. 

     According to the gemara, in a case that the object came into the finder’s possession illegally, he may not keep it. What does the gemara mean by illegal?  The gemara goes on to explain that in a case that the object has a siman, we must presume that at the moment the loss was discovered, there was no yeush.  The owner must have held on to hope of recovery based on his ability to identify the object.  Taking possession “illegally” does not mean that the finder did anything wrong but that it is illegal for him to take possession of the object as his own.  When the finder picks it up, before yeush, he or she has no rights to it.  When yeush finally takes place, it is only after the object is already in the possession of the finder.  In this situation, asserts the gemara, Abaye and Rava agree that the owner’s later yeush is irrelevant and the lost object continues to belong to the original owner.

     Why is this?  What difference does it make whether the yeush took place before the object was found or subsequently?  This question must be asked equally of Abaye and Rava; after all if actual yeush takes place before the object is found, everyone agrees that the finder may keep it.  That is the halakha taught in the mishna!  For Rava, we must ask an additional question:  Since he holds that anticipated yeush counts as yeush, why is the fact that the finder took possession before the actual yeush at all relevant?  In every case of yeush she-lo mi-da’at, the finder takes possession before the actual yeush – that is what yeush she-lo mi-da’at is!  Why does Rava hold that yeush she-lo mi-da’at works in an object without a siman, but does not work on an object with a siman?

     The gemara does not help us with either of these problems.  Apparently, it was obvious to the gemara that the crucial point is the moment in which the finder takes possession of the object.  Only if at that point the bonds tying the object to its original owner have been loosened by yeush, can the finder may acquire the object.  Yeush that takes place later is irrelevant.  The Rishonim (Medieval commentators) explain the irrelevance of yeush subsequent to the finding of the object in two different ways:

1.  The Ritva* explains that a person may keep a lost object only if that object is considered lost and yeush has taken place.  In the case where yeush takes place after the object has come into the possession of the finder, it makes no difference because the object is no longer lost.  In picking it up, the finder became the guardian of the object and is responsible for it until he can return it to the owner (see Bava Kama 56b).  Similarly, if one gives an object to another person to guard, the guardian does not automatically become the owner if for some reason the owner gives up hope of getting it back (yeush). 

1.  The Ritva* explains that a person may keep a lost object only if that object is considered lost and yeush has taken place.  In the case where yeush takes place after the object has come into the possession of the finder, it makes no difference because the object is no longer lost.  In picking it up, the finder became the guardian of the object and is responsible for it until he can return it to the owner (see Bava Kama 56b).  Similarly, if one gives an object to another person to guard, the guardian does not automatically become the owner if for some reason the owner gives up hope of getting it back (yeush). 

Ritva   ריטב"א

Rabbi Yom Tov ben Abraham Ishbili (Ashbili) was born ca. 1250 in Spain. He studied in the yeshivot of Barcelona under Rashba and Rabbi Aaron Halevi. A contemporary of Rosh, Ritva served as rabbi in Saragossa, where he became renowned as an halachic authority. Many halachic questions were referred to him for adjudication. His commentaries on the Talmud are studied to this day. Ritva also wrote Sefer Ha-Zikkaron, a work defending the teachings of Rambam in the latter's Guide to the Perplexed against the criticisms of Ramban in Ramban's Commentary on the Torah. Ritva died in Spain in 1330. (Thanks to the Bar-Ilan Responsa CD for the biography).

2.  Tosafot* Bava Kama 66a – at the moment the  finder picks up the lost object he becomes obligated in the mitzvah of hashavat aveida (returning a lost object).  This mitzvah applies to objects that the owners have not been mityaesh from. Subsequent yeush, however, does not absolve one of the mitzva.  Thus, if yeush takes place before one finds the lost object, the finder may keep it, since he was never obligated to return it.  If yeush does not take place until later, the finder is already obliged to return the object, irrespective of the owner’s connection to it. 

Tosafot, תוספות:
One of the most important medieval commentaries on the Talmud, was composed by French and German Talmudists during the twelfth to fourteenth centuries C.E. This commentary, which augments and often disputes Rashi's commentary on the Talmud, is printed opposite that work in standard editions of the Talmud Bavli. Tosafot is formulated dialectically, as a series of questions and answers. The work often addresses the significance of parallel talmudic passages for a proper understanding of the local sugya. Prominent among the authors of this work were Rabbenu Jacob b. Meir Tam, Rashi's grandson, and his nephew R. Isaac ben R. Shmuel (Ri). Tosafot is a collective work, composed by scholars from different schools and during different periods; hence we sometimes find contradictions between the Tosafot on different tractates. Tosafot concentrates more on talmudic interpretation than on rendering halachic decisions, although the interpretations in this work often exerted a significant influence on halachic decisionmaking. (Bar Ilan Responsa CD)

     These two explanations are not at odds with one another.  Rather, they complement one another while reflecting different emphases.  The Ritva’s explanation focuses on the issue of title – the owner loses title over his or her object only under certain specific conditions.  In the absence of these conditions he or she remains owner.  The Tosafot focus on the perspective of the finder – under what circumstances is he free to take possession and under what circumstances is he obliged to return the lost object. 

     Both of these explanations help us to understand why a later yeush does not improve the finder’s position.  Abaye, in rejecting yeush she-lo mi-da’at, appears to be carrying this reasoning to it logical conclusion:  If subsequent yeush makes no difference in an object that has a siman, why should it matter in an object that does not have a siman?  After all, simanim in and of themselves are not significant – they merely are a way in which we can establish whether yeush took place. The presumption that yeush took place in an object that has no simanim makes sense only if we can presume as well that the owner is aware of the loss.  Thus Abaye concludes that in order to allow the finder to kept the lost object two facts must be established:  1. that the owner is aware that he or she lost the object.  2.  the owner was mityaesh (because of the absence of simanim).  If we can establish these two facts, then finder’s keepers.  If not, the object remains the property of the owner and subsequent yeush has no influence on the finder’s obligation to return it. 

     Rava’s position is more difficult, for he has to account for why yeush she-lo mi-da’at is valid in the case of an object without simanim but invalid if the lost object has a siman.  Why should there be a difference?  The answer must lie in how Rava views simanim in general.  As we said above, according to Abaye, the presence or absence of simanim is only evidence of the owner’s psychology at the time of he or she discovers the loss.  In the case of a lost object that has simanim, Rava must agree, as the gemara explains ‘the owner says to himself, upon discovering the loss, “I have a siman for it, I will present the siman and collect it.”’  However, in the case of a lost object that has no siman, yeush is not merely a fact about the owner.  Objects with no simanim are fundamentally unrecoverable.  The owner has no way of identifying the lost object and thus in principle, claims Rava, since he must be mityaesh upon discovering the loss, we regard his or her yeush as inherent to the loss.  Yeush she-lo mi-da’at is yeush because yeush is not only a psychological fact about the owner but a legal fact about siman-less objects. 

     In contrast, with an object that has simanim, we can not regard yeush as intrinsic.  Even when the owner was mityaesh later on, the yeush is merely a happenstance that is not related to the nature of the lost object.  The object was recoverable and if the finder takes possession before the owner is mityaesh, he becomes responsible for the object and its return to its rightful owner.  The fact that subsequently the owner was mityaesh does not change this.

     We can see from this first limitation of the makhloket between Abaye and Rava that their disagreement goes deeper than a mere technical question as to whether yeush can function retroactively.  For Abaye, only when the owner has withdrawn through actual yeush can the finder take possession of the object.  For Rava, yeush can be founded not only on the owner but also on the object.  Objects that are recoverable by the owner remain connected to him or her unless yeush took place. With unrecoverable objects, i.e. those with no simanim, since yeush is a foregone conclusion, we regard it as already in place - yeush she-lo mi-da’at is yeush.

     We have spent so much time on this first exclusion because it cuts to the very essence of the makhloket between Abaye and Rava about yeush she-lo mi-da’at.  In the first exclusion we learned that Rava concedes that yeush she-lo mi-da’at is invalid regarding objects that have simanim.  In the second exclusion we find Abaye conceding to Rava that there are circumstances where actual yeush is not necessary.    The gemara teaches us that zuto shel yam or shelulito shel nahar, an item found on a tidal flood plain or retrieved from a flooded river, belongs to the finder, even though the lost object has a siman. The gemara here does not explain why this is but merely says: “The Merciful one has made it (the lost object) permitted, as we will explain below.”  The reference is to daf 22b.  How do I know this?  If you look in Rashi* (translation), s.v. le-kaman (12 lines down from where it starts to get narrow), you will see that he provides us with the reference. We will explore that sugya when we get to it.  For now, it is sufficient to point out that objects that have

Note that for Rashi, there were no dapim (plural of daf).  He learned from manuscripts long before the printers set up a fixed gemara page.  Rashi references other sugyot through short quotes often while mentioning the appropriate chapter.  Here, if you look on the text of the word le-kaman, you will see a tiny asterisk.  This refers us to the comment on the right hand side of the Rashi text, in which we we are told that the sugya Rashi mentions appears on 22b.

been swept away by a flood, or lost from any human control, are a special case and the law is that anyone who finds them can keep them, regardless of simanim or yeush. 

     We are left, then, with the case of lost and found objects that have no siman. Here there is a makhloket: Abaye claims that there is no yeush since the owner does not know that he has lost it.  Rava believes that even though the owner is unaware of the loss, we regard such a situation as already containing yeush; the moment the owner realizes his or her loss, he or she will mityaesh, saying to himself: ‘I have no simanim.’

     At this point we find in the gemara (last word on line 14), a parenthetical statement that looks like gibberish. It contains the word “siman” followed by three Hebrew acronyms.  We can safely ignore this passage.  The “siman” in this context has nothing to do with hashavat aveida or yeush.  It is a mnemonic device for remembering the long sugya about yeush she-lo mi-da’at.  Each letter in the acronyms represents a stage in the discussion that continues to daf 22b.  At some stage in the history of the printing of the gemara, this siman along with others like it in other sugyas, were inserted into the text.  We will ignore it for now.  When we finish learning the sugya of yeush she-lo mi-da’at, it may be interesting to note to which point each letter refers.

     To conclude, I suggest that you go through the gemara one last time.  See that you can follow the gemara’s argument that focuses Abaye and Rava’s makhloket exclusively on cases in which the lost object has no simanim.  From here until the end of the sugya on daf 22b, the gemara will try to establish which position is the correct one.


Schematic analysis # 3. 

From daf 21a “Itmar…” (last word on the page) until the middle of daf 21b “…(siman).” 

Text of the gemara

schematic analysis

Translation

  1. איתמר: יאוש שלא מדעת. אביי אמר: לא הוי יאוש, ורבא אמר: הוי יאוש.

Original makhloket

Itmar (it is said) [Regarding] unaware yeush:  Abaye says:  it is not yeush and  Rava says is yeush.

  1. בדבר שיש בו סימן - כולי עלמא לא פליגי, דלא הוי יאוש.

Focus of the disputed principle:  first exclusion.

[Regarding] something that has a siman, all agree that there is not yeush.

  1. ואף על גב דשמעיניה דמיאש לסוף - לא הוי יאוש, דכי אתא לידיה - באיסורא הוא דאתא לידיה. דלכי ידע דנפל מיניה לא מיאש, מימר אמר: סימנא אית לי בגויה, יהבנא סימנא, ושקילנא ליה.

Explanation of first exclusion

Even though we ultimately heard from him (from the owner of the lost object) that he is mityaesh, it is not yeush, since it (the lost object) came into (the finder’s) possession illegally.  [We presume] the owner says to himself, upon discovering the loss, “I have a siman for it, I will present the siman and collect it.”

  1. בזוטו של ים ובשלוליתו של נהר, אף על גב דאית ביה סימן

Second exclusion

There is no dispute  regarding zuto shel yam or shelulito shel nahar, even though it has a siman.

  1. רחמנא שרייה כדבעינן למימר לקמן.

Explanation of second exclusion

The Merciful one has made it (the lost object) permitted, as we will explain below.

  1. כי פליגי - בדבר שאין בו סימן. אביי אמר: לא הוי יאוש, דהא לא ידע דנפל מיניה. רבא אמר: הוי יאוש, דלכי ידע דנפל מיניה - מיאש. מימר אמר: סימנא לית לי בגויה, מהשתא הוא דמיאש.

Focus of the disputed principle:  scenario in which there is a makhloket.

They disagree [in the case of] an object that does not have a siman.  Abaye says, there is no yeush as he (the owner) does not know that he has lost it.  Rava says, there is yeush, for when he discovers that he has lost it, he will say to himself: “I have no siman for it” [it is as if] he has been mityaesh from now.

  1. (סימן: פמג"ש ממקגט"י ככסע"ז).

Mnemonic

back to shiur

Siman.


 


רש"י ב"מ כב:  Rashi  

לקמן - בשמעתין; מנין לאבידה ששטפה נהר כו'.

Further on:  in our sugya:  “From where do we learn that an object washed away in the river etc”.

 

Vocabulary and Grammar

Key Gemara Terms

איתמר Itmar – It is said.  Generally used to introduce as Amoraic discussion that is independent (though often thematically connected) of the exposition of the mishna.

אוקימתא ukimta – noun form of לוקים lokim to establish or maintain.  An ukimta refers to the specification of a (class of) case(s) in which a particular law applies.  This usually serves to narrow the scope of the law and thus avoid a difficulty.

אף על גב af al gav – even though

בעיה ba’aya:  noun form of verb בעי ba’ei, he inquires.  A ba’aya is a clarifying question usually presented in the following form:

 

בעי ר' ___________                                             Ba’ei R. ________________        

אופציה א'                                                                                                Option 1

או דלמא                                     O dilma (or possibly, however)                            

אופציה ב'.                                                                                                Option 2

 

בציר batzir – less

היכי דמי heichi dami – what is the case?, what is the situation referred to in the previous statement?

טובא tuva – a lot

כל שכן kol she-ken -  all the more so.

 כולי עלמא לא פליגי kulei alma la peligieveryone agrees (lit. all the world does not dispute).

לקמן le-kaman – below, further on

נמי nami – also

נפיש nafish – much, a lot.

ספק safek (pl. ספקות sefaikot) - doubt, unresolved dilemma.

תא שמע Ta shema – Come and hear.  Ta shema is the opening of a quote from a precedent, usually a Baraita, but occasionally a mishna or a meimra of Amoraim.  Most often (as in the case on 21b), Ta shema is used to introduce a precedent that prima facie proves the point of one side of a makhloket.

תיקו, teiku – inconclusive resolution.  Teiku probably comes from the root קום kum and means ‘let it stand,’ in other words, there is no resolution.  Traditionally it has been interpreted as standing for תשבי יתרץ קושיות ואבעיות, Tishbi (Eliahu HaNavi) will resolve questions and problems.

 


General Vocabulary    

אוקימתאnoun form of lokim, to establish or maintain.   An ukimta refers to the specification of a (class of) case(s) in which a particular law applies.  This usually serves to narrow the scope of the law and thus avoid a difficulty.

 

אית, לית – יש, אין (no real translation into English.  In English, this semantic function is usually fulfilled by verbs such as “to have” e.g.

אית ביה סימן = יש בו סימן = it has a siman

 

איתמר -  נאמר  It is said.  Generally used to introduce as Amoraic discussion that is independent (though often thematically connected) of the exposition of the mishna.

 

אמאי – מדוע why, what for

אף על גבaf al gav – even though -

אתא – בא comes

בגויה – בו on it

בעי – רוצה, צריך, מתכוון – desires, requires, intends

 

בעיה –   Noun form of verb ba’ei, he inquires. A ba’aya is a clarifying question usually presented in the  following form: 

בעי ר' ___________                                             Ba’ei R. _________________?     

אופציה א'                                                                        Option 1

או דלמא                          O dilma (or possibly, however)

אופציה ב'.                                                                        Option 2

 

בציר -than   batzir less

הוי – הווה is

היכי דמי heichi dami – what is the case?, what is the situation referred to in the previous statement  - ?

הכא – כאן here

התם – שם there

זוטו של ים, שלוליתו של נהר - Zuto shel yam, shelulito shel nahar – items washed away be the (tides of ) the sea or the flooding of a river.

 

טובא -   tuva – a lot

יאוש - Yeush – despair (of ever recovering the lost object)

יהבנא – נותן אני I give

 כולי עלמא לא פליגי -  kulei alma la peligi – everyone agrees (lit. all the world does not dispute).

כל שכן kol she-ken -  all the more so -

ליה – אותו it

לקמן – בהמשך below, further on

מיניה – ממנו, from him

נמי nami – also -

נפיש -  nafish – much, a lot.

ספק safek (pl. sefaikot) - doubt, unresolved dilemma -

פליג – חולק  disagree

רחמנא – הקב"ה God

שקילנא – לוקח אני I’ll take

שרי – התיר permit

 

תא שמע  Ta shema – Come and hear.  Ta shema is the opening of a quote from a precedent, usually - Baraita, but  occasionally a mishna or a meimra of Amoraim.  Most often (as in the case on 21b), Ta shema is used to introduce a precedent that prima facie proves the point of one side of a makhloket.

 

תיקו -  Inconclusive resolution. Teiku probably come from the root ‘kum’ and means literally ‘let it stand’.  Traditionally it has been interpreted to be an acronym for the Hebrew phrase:

"תשבי יתרץ קושיות ואבעיות"

 “Tishbi Yetaretz Kushiyot Ve-Abayot” i.e., Tishbi (Eliahu HaNavi) will  resolve questions and problems.