Elu Metziot shiur #15, 24a -24b

  • Rav Joshua Amaru

YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)


Introduction to the Study of Talmud
By Rav Josh Amaru

Elu Metziot shiur #15,  24a -24b.

Today's shiur includes the vocabulary list for the shiur itself. If you wish to consult the full cumulative vocabulary list, it is found at
http://www.vbm-torah.org/talmud2/vocab.htm.  

As usual, the citations to the text of the gemara are linked to the online scan of the daf, for those who do not have an open gemara before them.  The gemara can be found on-line at
http://www.e-daf.com/daf.asp?ID=3073. 

Key words and phrases are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  Other vocabulary words are marked in red and can be found on the vocabulary list at the end of the shiur.  Particularly important vocabulary words will have a link to the vocabulary list. 

 Summary of last shiur:   The last two shiurim have focused on R. Shimon ben Elazar's position that objects found in public places where there are many people are permitted to the finder.   There are three possible positions:  One could argue that it is never significant whether the object is found in a public place with a lot of traffic.  Any object that has simanim must be announced, since it may have been lost by a Jew who could come and retrieve it.  Alternatively, one could take the opposite extreme and argue that anything found in a public place is permitted, even if it has simanim.  Since the location is frequented by so many people, the chances of getting it back are slim, and the owner is mityaesh.   Finally, there is a middle ground, that is espoused at the end by Rav Asi, that distinguishes between public places frequented mostly by Jews, where an object found therein must be announced, and public places frequented mostly by non-Jews, where the object is permitted to the finder. 

    This week, we will continue to examine R. Shimon ben Elazar's position, from a different perspective.  The gemara will bring a series of real-life cases or questions and examine them in the light of all that we have learned.  On daf 24b, learn from "Ha-hu gavra...ההוא גברא" (line 14) until "lo miyaesh  לא מיאש" (line 22).  Lines 1-5 in the schematic analysis. 

    The first case the gemara examines is that of someone who found money bound up in a cloth in a river.  He asked Rav Yehuda whether he could keep it, since the manner in which it was tied could count as a siman.  Rav Yehuda ruled that the finder must announce it.  The gemara then asked:  why is this not a case of zuto shel yam, of a lost object that is not merely lost to the owner but has been 'lost to all,' and hence is permitted to the finder, even if it has simanim?   The gemara explains that the specific river, the river Biran, contains obstacles which prevent objects from bein swept away, and therefore the owner is not mityaesh

The gemara claims that since there are obstacles, the owner is not mityaesh and therefore the 'zuto shel yam' rule does not apply.  This is difficult since, according to Rashi on 22b, the 'zuto shel yam' rule is not a function of yeush at all! (See a full discussion of Rashi's position in shiur #8).  As we pointed out in the shiur that dealt with 'zuto shel yam', there are Rishonim who hold that the mechanism by which 'zuto shel yam' is permitted does involve yeush and that position is supported by the gemara we are learning today.

There are three possibilities to explain Rashi:

1.  Our sugya on 24b disagrees with the sugya on 22b in its understanding of zuto shel yam.  This is called a machloket ha-sugyot, a dispute between sugyot.  Such machlokot do occur, though usually not in such close proximity, in what is a continuation of the discussion of the same mishna.

2.  When our sugya uses the term 'zuto shel yam',  it does not mean it in the technical sense.  What it means is that under such circumstances as money found in a river, there is a strong presumption of yeush since it is unlikely that the money will ever be found by anyone.  This approach making the reasonable assumption that people are mityaesh even from items with simanim under the appropriate circumstances.  (Another example is found on 23b, where yeush was presumed regarding the pitch that sprouted weeds.)

3.  When our sugya explains that because of the obstacles, the owner is not mityaesh, it is being imprecise.  The point is that because of the obstacles, this money is not regarded as 'zuto shel yam.'  It is not lost to all since the river is damned and dredged and the money can be extracted by anyone who is willing to go to the trouble.  The gemara mentions yeush since the absence of yeush is also required if the owner is to have a claim, but it is the obstacles themselves, rather than the absence of yeush, that preclude including this money in the category of 'zuto shel yam' . 

    Even so, the gemara continues, most of the people in the area are not Jewish, so it appears that we can derive from Rav Yehuda's ruling that the halakha is never in accordance with R. Shimon ben Elazar, even where there is a non-Jewish majority.  This conclusion, however, is not warranted, given the special circumstances of the Biran river.  This river was the local Jewish community's responsibility.  The dams were built by Jews, such that anything found in the river most likely originally belonged to a Jew.  Likewise, the river was dredged by Jews, so that most likely a Jew would find it. 

The Jewish communities is Babylonia were to a large degree autonomous.  It thus makes sense that there should exist a section of a river that is maintained by the Jewish community. 

Under such circumstances, it does not matter that the Biran river is a place where the majority is non-Jewish.  Recall, that where the majority are non-Jews, there are two reasons to permit the lost object to the finder: 
a. The lost object most likely belongs to a non-Jew towards whom there is no mitzva of hashavat aveida
b. Even if the original owner was a Jew, he or she is aware that it will most likely be found be a non-Jew and therefore he or she is mityaesh
Neither of these considerations apply in the Biran river and therefore Rav Yehuda could unequivocally rule that the finder must announce it. 

    We will look now at two related cases.  Learn on daf 24b from "Rav Yehuda havei shakil...רב יהודה הוה שקיל"  until "she-tav'ah ba-yam.שטבעה בים".  Lines 6-18 in the schematic analysis. 

    The gemara recounts how Rav Yehuda, when walking with his teacher in the grain market, asked him what the law would be for a purse found in such a place.  Shmuel, his teacher, replied that the purse would belong to the finder.  It appears that Shmuel is deciding, in accordance with R. Shimon ben Elazar, that if an object is found in a public place (at least one where the majority are non-Jews), it belongs to the finder even if it has a siman, since we assume the owner has been mityaesh.  

    "What if a Jew came and presented a siman to the finder?" asked Rav Yehuda.  In that case he must return it, replied his teacher.  "How are both possible?" asked the student.  After all, we allow the finder to keep the lost object only because we can safely assert that the owner has been mityaesh.  Once he or she has been mityaesh, it does not matter that there is a siman, for the owner loses his rights to it from the moment of yeush. How, on the one hand, can it be permitted to the finder to take possession - implying there was yeush,  and on the other hand, can there be an obligation on the part of the finder to return it?  Is not the mitzva of hashavat aveida nullified by yeush?   

    Shmuel explains that there is not genuine legal requirement to return the lost money under such circumstances.  His answer is not an expression of the letter of the law but rather encouragement  to "do the right thing," beyond the the letter of the law.  Similar supererogatory behavior was exhibited by Shmuel's father who returned lost donkeys even when they had been lost long enough such that the owner was presumably mityaesh.  This notion, lifnim mi-shurat ha-din, beyond (literally inside) the letter of the law, is a crucial one in Jewish ethics.  Shmuel teaches his favorite student that what is allowed and what one ought to do morally are not the same.  This money belonged to the person who lost it and is rightfully his even if technically speaking, he has no claim.  To benefit from someone's loss in this way, though not illegal, is not the way in which Shmuel expects Rav Yehuda to behave. 

    The gemara then recounts a similar story that took place a generation later.  Rav Nachman, Shmuel's star pupil in dinei mamonot (laws pertaining to to economic relations between people), was asked the same questions by his student, Rava.  Rav Nachman however, insists upon the letter of the law:  Even when the original owner presents a siman, and even when he or she protests loudly, the finder may keep the lost purse, as it was found in a public place.  The protestations of the owner are in vain since the object was lost to him or her at the moment of yeush and thus he or she has no more legal right to it than anyone else. 

    Is Rav Nachman deaf to the cries of the original owner that an injustice is being done?  It would appear so.  Yet it is odd that the gemara juxtaposes these two stories, in which Rav Nachman comes out looking so insensitive, without making any additional comment.  I would like to offer an alternative interpretation of this juxtaposition.  Perhaps Rav Nachman believes that it is not appropriate for him to answer his student's question by telling him the lifnim mi-shurat ha-din.   Rav Nachman is a professional judge, a dayan, and he is aware that every case of dinei mamonot has two sides.  By putting moral pressure on the finder, one may be exhibiting kindness to the original owner but at the expense of the finder.  It is one thing for the finder to give the money back on his own initiative and another for the judge to encourage him to do so.

    Another, more radical interpretation of Rav Nachman's attitude could go like this:  Perhaps Rav Nachman does not think there is any, even superogatory obligation, for the finder to give back the money.  It all depends on one's theory of ownership.  Shmuel seems to think that there is a 'natural' owner of this money - the original owner who then lost it and was mityaesh of ever getting it back.  Legally he has no claim but morally he remains the person deserving of the money.  Perhaps Rav Nachman thinks that there is no such thing  as 'natural ownership.'  When someone's house collapses or ship sinks, he or she is unhappy but has no right to claim compensation from someone else. So too with the lost object.  Once it was lost and he was mityaesh, the original owner's connection with this object is merely history.  He has no more moral right to it than anyone else.  The legal owner is thus the only one with even a moral claim and we should ignore the original owner's protestations.   

    Learn now on daf 24b from "ha-hu dayo...ההוא דיו"  until tabachei Yisrael טבחי ישראל".  Lines 19-29 in the schematic analysis. 

    We encounter the case of a vulture that seized a peice of meat in the market and dropped it among the palm trees of Bar Mariun.  Here the problem is twofold:  Does the meat belong to the finder, and can the meat be eaten?  Bar Mariun took this question to Abaye and he allowed Bar Mariun to eat the meat.  The gemara first questions this ruling in terms of the laws of lost objects:  The meat was taken from a kosher butcher so the majority of people who might have lost it is Jewish.  Should we take Abaye's ruling to imply that the halakha is like R. Shimon ben Elazar and that any lost object in a public place is permitted, even when there is a majority of Jews?  

    The gemara refrains from drawing this conclusion.  When the vulture snatched the meat, it was lost not only to its owner but to the whole world.  Accordingly, this is a case like zuto shel yam, where the lost object belongs to

Basar she-nit'alem min ha-ayin
בשר שנתעלם מן העין
, meat that has  been lost to sight, is the subject of a dispute between two first generation Babylonian Amoraim. Rav and Levi (Chulin 95a).  Ordinarily, on issues of issur ve-heter, that is, the kashrut of food, we follow the rov, the majority, to determine the status of an unidentified substance.  (This is obviously a very complicated subject, but that is the general principle.)  Rav holds that meat that has been lost from sight is an exception to the rule and it is forbidden to eat, for fear that perhaps it is nonkosher meat that has somehow been switched.  According to Levi, meat is no different from anything else, and we determine its status according to the rov.  There is a further dispute among the Rishonim as to whether the halakha follows Rav or Levi.  Today, accepted practice is not to eat basar she-nit'alem min ha-ayin, with some qualifications.

    Note that in the following case, that of R. Chanina, the question is not one of Basar she-nit'alem min ha-ayin, but a more fundamental question.  Basar she-nit'alem min ha-ayin is a special stringency with regard to meat that we know was slaughtered properly but have lost track of.  When we discover it again, the question is whether we can be sure that this is the same meat.  R. Chanina's case involves meat that has been found and about whose slaughter we have no certain knowledge.  Under such circumstances, the Tanaim disagreed as to whether we can trust the rov to determine if the meat was slaughtered properly.  To be sure, for the position that is stringent regarding  basar she-nit'alem min ha-ayin, it seems difficult to permit the meat in R. Chanina's case. 

the finder regardless.  However, the kashrut of the meat is still a problem.  According to some authorities, it is forbidden to eat meat that has not been under the continuous supervision, if that meat cannot be positively identified by other means (a seal or mark etc.)  Not all Amoraim agree  with this, but apparently our gemara subscribes to Rav's position that such meat is forbidden.  If so, how did Abaye permit Bar Mariun to eat the meat?  The gemara answers with a simple ukimta - it must have been that someone observed the vulture all the time until the meat was dropped. 

    The gemara next quotes another case of lost meat, this time coming from Amoraim who lived in Eretz Yisrael.  R. Chanina found a slaughtered goat and was told that it was permitted.  R. Ami explains to us the basis for this ruling.  First of all, it follows R. Shimon ben Elazar's ruling that articles found in public places, even when they have simanim, belong to the finder.  As far as the kashrut of the meat, there is a pre-existing makhloket regarding a similar case. 

    'If one lost his kids (i.e. goats) or chickens and [subsequently] found them slaughtered - R. Yehuda forbids, and R. Chanania the son of R. Yose the Galilean permits [them to be eaten].'  The question is whether we can trust the fact that most people who slaughter animals (in the kosher manner) are competent and do so correctly.  Rabi (i.e. R.Yehuda HaNasi, redactor of the mishna, c. 200 C.E) rules that this question depends upon where the meat is found.  If it is found in the dump, then most likely it was thrown there because it is was not slaughtered properly, and under such circumstances the meat is forbidden (as per the opinion of R. Yehuda.  According to the gemara in Chulin 95b, even R. Chanania the son of R. Yose the Galilean concedes this point when the meat is found in a public dump.)  If the meat was found in the house, then  it is permitted, as most likely the meat in a house is kosher.  Given Rabi's ruling, so long as the slaughtered goat was found in a place that did not look like a dumping ground, we may regard it as kosher. 

    R. Ami's analysis of R. Chanina's case has other implications.  The makhloket between R. Yehuda and R. Chanania the son of R. Yose the Galilean only makes sense in a place where the majority of people are Jews.  Otherwise, the likelihood is that the goats or chickens were slaughtered by non-Jews which certainly makes the meat forbidden.  Likewise, this rule's application to R. Chanina's case implies that similarly there is a majority of Jew between Tiberias and Tzipori.  R. Chanina's case depends upon following R. Shimon ben Elazar's ruling that articles found in public places, even when they have simanim, belong to the finder.  If so, we can deduce that R. Shimon ben Elazar's ruling applies equally to cases where the majority is Jewish!

    Rava dismisses this deduction.  It is perfectly possible to imagine a situation in which we can permit R. Chanina's goat without committing ourselves to extending R. Shimon ben Elazar's ruling to places where the majority is Jewish.  The ruling permitting the goat to R. Chanina must have taken place in a place where most of the people are non-Jews, and only for that reason R. Chanina did not need to announce that he found a goat.  It can still be deemed kosher so long as most of the slaughterers in the area are Jews, such that we may presume that the slaughter was kosher. 

    We conclude our gemara with two more related stories about students of R. Yochanan.  Learn on daf 24b from "Rabi Ami...רבי אמי" until the next mishna. Lines 30-31 in the schematic analysis.

    R. Ami, in a case very similar to R. Chanina's above, found slaughtered pigeons.  Upon inquiring as to the halakha in such a case (and there are different traditions as to where he inquired) he was instructed to take them for himself.  Though the gemara does not specify, this ruling seems to be based on the logic of the ruling in R. Chanina's case discussed above. 

    In another case, R. Yitzchak Nafcha, another student of R. Yochanan, inquired about some balls of string that fisherman use to make nets.  He too was instructed that he could take them.  Once again the gemara does not tell us the logic of this decision, though it too presumably is founded on R. Shimon ben Elazar's  position about items found in public places. 

    Thus we bring our discussion of the first mishna to a close.  One might ask what was the point of the series of cases the gemara brought that have been discussed in this shiur.  In the end, we have extracted no conclusive decisions from these cases, beyond the fact that we follow R. Shimon ben Elazar in case where the majority is non-Jewish.  The answer, I think, is obvious.  The gemara, in presenting to us sampling of real-life cases that are relevant to an issue at hand, teaches us that the real work of deciding the law demands an attention to detail and a focus on the individual circumstances of each case.  The principles of the law, for example R. Shimon ben Elazar's ruling, shape our attitudes, but in the end, individual halakhic questions always demand individual answers. 

Schematic Analysis #15

Schematic analysis of the gemara daf 24b from "Ha-hu gavra...ההוא גברא" (line 14) until the mishna on the bottom of the page.

Translation of gemara Schematic Analysis Text of gemara 24b

1. A certain man once found four zuz which had been tied up in a cloth and thrown into the river Biran. He came before Rav Yehuda who said to him, 'Go and announce it.' .

Actual case instantiating halakha discussed above.

1. ההוא גברא דאשכח ארבעה זוזי דציירי בסדינא ושדו בנהר בירן. אתא לקמיה דרב יהודה. אמר ליה: זיל אכריז.

2.  But this is [like retrieving an object from] the tide of the sea! Question about the ruling in the case.

2.  והא זוטו של ים הוא! -

3.   The river Biran is different. Since it contains obstacles,  the owner is not mityaesh Explanation of the ruling.

3. שאני נהר בירן, כיון דמתקיל לא מיאש.

4.  But were not the majority non-Jews? Conclude that the halakha is not in accordance with R. Shimon ben El'azar even where the majority are non-Jews! Additional question about the ruling.

4.  והא רובא נכרים נינהו, שמע מינה אין הלכה כרבי שמעון בן אלעזר אפילו ברוב נכרים!

5. The river Biran is different. Jews dam it up and Jews dredge it: Since Jews dam it up it may be assumed that an Jew dropped [the coins], and as Jews dredge it, [the loser] was not mityaesh

Explanation of the ruling.

5.   שאני נהר בירן, דישראל סכרו ליה, וישראל כרו ליה. כיון דישראל סכרו ליה - אימור מישראל נפל, וכיון דישראל כרו ליה - לא מיאש.

6. Rab Yehuda once followed Mar Shmuel into a street of wholemeal vendors.  He asked him: What if one found here a purse?  Halakhic question

6. רב יהודה הוה שקיל ואזיל בתריה דמר שמואל בשוקא דבי דיסא, אמר ליה: מצא כאן ארנקי מהו?

7.  [Mar Shmuel] answered: It would belong to the finder.  Answer

7.   אמר ליה: הרי אלו שלו. -

8.  What if a Jew came and presented a siman? Further question.

8.  בא ישראל ונתן בה סימן מהו? -

9. [Mar Shmuel] answered: He would have to return it.

Answer.

9.  אמר ליה: חייב להחזיר. -

10. Both?

Difficulty with above answer.

10.  תרתי? -  

11.   [Mar Shmuel] answered: [He should go] beyond the requirements of the law.  Explanation of the answer.

11.  אמר ליה: לפנים משורת הדין.

12.  Thus the father of Samuel found some donkeys in the desert, and he returned them to their owner after a full year, beyond the requirements of the law.  Precedent for above explanation.

12.  כי הא דאבוה דשמואל אשכח הנך חמרי במדברא, ואהדרינהו למרייהו לבתר תריסר ירחי שתא, לפנים משורת הדין.

13. Raba once followed Rav Nachman into the street of the tanners, some say into the street of scholars.  He asked him: What if one found here a purse? 

Halakhic question.

13. רבא הוה שקיל ואזיל בתריה דרב נחמן בשוקא דגלדאי, ואמרי לה בשוקא דרבנן, אמר ליה: מצא כאן ארנקי מהו? -

14. [Rav Nahman] answered: It would belong to the finder. Answer.

14.  אמר ליה: הרי אלו שלו.

15.  What if an Israelite came and presented a siman for it? Further question.

15.  בא ישראל ונתן בה סימן מהו?

16. [R. Nahman] answered: It would belong to the finder. Answer.

16.  אמר ליה: הרי אלו שלו. -

17. But [the one with the siman] keeps protesting! 

Difficulty with above answer.

17. והלא עומד וצווח! -

18.  It is as if one protested against his house collapsing or against his ship sinking in the sea. Explanation of the answer.

18.   נעשה כצווח על ביתו שנפל, ועל ספינתו שטבעה בים.

19.  Once a vulture seized a piece of meat in the market and dropped it among the palm-trees belonging to Bar Mariun. When the latter came before Abaye he  said to him: Go and take it for yourself. Actual case and ruling about it.

19.  ההוא דיו דשקיל בשרא בשוקא, ושדיה בצנייתא דבי בר מריון. אתא לקמיה דאביי. אמר ליה: זיל שקול לנפשך.

20.  Now, the majority [in that case] were Jews; hence it must be concluded that the halakha is in accordance with R. Shimon ben El'azar even where the majority are Jews! difficulty with ruling.

20.  והא רובא דישראל נינהו, שמעת מינה: הלכה כרבי שמעון בן אלעזר אפילו ברוב ישראל! -

21.  A vulture is different for it is like the tide of the sea.  Explanation of ruling.

21.  שאני דיו, דכזוטו של ים דמי. -

22. But did not Rav say that meat which has disappeared from sight is forbidden?  

Further difficulty.

22. והא אמר רב: בשר שנתעלם מן העין אסור! -

23.  [The case was when] he stood by and watched it. Ukimta to resolve the difficulty.

23.  בעומד ורואהו.

24.  R. Chanina once found a slaughtered kid between Tiberias and Tzipori, and he was permitted it (i.e. he was told it was permitted).  Story about a case.

24.  רבי חנינא מצא גדי שחוט בין טבריא לציפורי והתירוהו לו.

25.  R. Ami said: He was permitted [to take] it as a find, according to R. Shimon ben El'azar, and as regards [whether] the slaughter [was kosher], according to R. Chanania, the son of R. Yose the Galilean.

Explanation of the ruling in above case.

25.  אמר רבי אמי: התירוהו לו משום מציאה - כרבי שמעון בן אלעזר, משום שחיטה - כרבי חנניא בנו של רבי יוסי הגלילי.

26.  For it has been taught:  'If one lost his kids or chickens and [subsequently] found them slaughtered- R. Yehuda forbids, and R. Chanania the son of R. Yose the Galilean permits [them to be eaten]. Source for explanation above.

26.  דתניא: הרי שאבדו לו גדייו ותרנגוליו הלך ומצאן שחוטין - רבי יהודה אוסר, ורבי חנניא בנו של רבי יוסי הגלילי מתיר.

27.  Rabbi said: The words of R. Yehuda seem right in a case where [the lost kids or chickens] were found on a dump, while the words of R. Chanania, the son of R. Yose the Galilean seem right when they were found in a house.  baraita which rules in the makhloket appearing in previous baraita.

27.  אמר רבי: נראין דברי רבי יהודה כשמצאן באשפה, ודברי רבי חנניא בנו של רבי יוסי הגלילי כשמצאן בבית.

28.  From the fact that they permitted him regarding the [kashrut of the] slaughter, the majority must have consisted of Jews.  Conclude therefore that the halachah is according to R. Shimon ben El'azar even where the majority are Jews! Difficulty arising from ruling in (24).

28.  מדהתירוהו לו משום שחיטה - רובא ישראל נינהו, שמעת מינה הלכה כרבי שמעון בן אלעזר אפילו ברוב ישראל!

29.  Rava replied: [The case was with a] majority  non-Jewish [ inhabitants], and a majority of the slaughterers [were] Jews. Ukimta to resolve above difficulty.

29.  אמר רבא: ורוב נכרים ורוב טבחי ישראל.

30.  R. Ami once found some slaughtered pigeons between Tiberias and Sepphoris. When he appeared before R. Asi (some say, before R. Yochanan; others again say, in the house of study), he was told: 'Go and take them for yourself.'

Story about a case.

30.   רבי אמי אשכח פרגיות שחוטות בין טבריא לציפורי, אתא לקמיה דרבי אסי, ואמרי לה לקמיה דרבי יוחנן, ואמרי לה בי מדרשא. ואמרו ליה: זיל שקול לנפשך.

31.  R. Yitzchak Nafcha (the blacksmith) once found some balls of string which were used for making nets. He came before R. Yochanan (some say, in the house of study), and they told him 'Go and take them for yourself.'

Story about a case.

31.  רבי יצחק נפחא אשכח קיבורא דאזלי ביה אזלויי, אתא לקמיה דרבי יוחנן, ואמרי לה בבי מדרשא, ואמרו ליה: זיל שקול לנפשך.

 

 

 

Key Gemara Terms

batar, batrei:  after, after him

אחרי, אחריו

בתר, בתריה

tarti:  two, both

שנים

תרתי

General vocabulary

ahadrinhu: returned them. 

החזיר אותם

אהדרינהו (הדר)

batar, batrei:  after, after him

אחרי, אחריו

בתר, בתריה

shadu (pl. of shadi): thrown, were thrown

השליכו, נשלכו

שדו (שדי)

tabach:  shochet, slaughterer.

שוחט

טבח

lifnim mi-shurat ha-din:  superrogative, beyond the letter of the law.

לפנים משורת הדין

tzavach:  scream, protest

 

צווח

treisar yarchei shata: lit. twelve months of a year, a full year.

תריסר ירחי שתא

tarti:  two, both

שנים

תרתי