Elu Metziot shiur #20, 26a-26b
YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
Introduction to the Study of Talmud
By Rav Josh Amaru
Elu Metziot shiur #20, 26a-26b.
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|Summary of last shiur: In the last shiur we discussed the mishna on 25b that ruled that objects found in an old wall may be kept by the finder, while the status of objects found in a new wall depends on the position of the object vis-a-vis the inside or outside of the wall. In addition, the mishna ruled that objects found on property that has been rented to different people are permitted and we studied the gemara's discussion of the circumstances in which the mishna's ruling is applicable.|
Recall that at the end of the last shiur, we learned that Rav Nachman does not rule like R. Shimon ben Elazar that an object lost in a public place belongs to the finder even if the majority of passersby are Jewish. Even so, regarding an object found on a property that was rented to three Jews at a time, Rav Nachman concedes that the object belongs to the finder. Under such circumstances we may presume the original owner was mityaesh, as he or she will assume that the object was found by a fellow tenant and deliberately not returned.
This week we will elaborate upon this position of Rav Nachman's. Learn from "ve-azda Rav Nachman...ואזדא רב נחמן" on the bottom of 26a until "...amar: lo shakaltei אמר לא שקלתיה " on 26b. Lines 1-4 in the schematic analysis.
Rav Nachman's ruling that an article found in a house rented to at least three people at a time belongs to the finder parallels a different ruling where the finder witnesses the loss of the object. Rav Nachman ruled that if the owner was aware of the presence of only one other person at the time of the loss, the finder-witness must return it. We cannot presume that the owner was mityaesh; He will say to himself: "the other person must have taken it, I will demand it from him!" Given these assumptions about the owner's psychology, the finder must return the object to the owner.
However, continues Rav Nachman, if there were two other people in the company of the owner of the lost object, we may presume that the owner was mityaesh and the finder-witness may thus keep the object. As before, the owner will assume that the lost object was found by one of his companions; however, here each one of them can plausibly deny having the object, by pointing to the other. Since the owner has no way of proving who took it, he will be mityaesh.
This second scenario, with three people including the original owner of the object, parallels the case in the mishna as understood previously by Rav Nachman. In a house rented to at least three people, the same conditions hold: the original owner will assume that the lost object has been found (or taken) by one of the other tenants when in fact none of them have it. Since the owner has no way to force his fellows to admit that they have the object, he will be mityaesh, such that when the object is found later by another, it is permitted.
This analysis of Rav Nachman's, as it stands, lacks a certain amount of psychological authenticity. Rav Nachman's distinction between when the owner is in the company of only one other person and when he has more companions seems odd. Remember, according to Rav Nachman, if the owner has only one companion, then he will not be mityaesh, since he assumes that he can force his companion to admit that he took it. However, if there is a third party, the weight he can bring to bear on his companions is less, since each can claim that the other took it. This line of reasoning makes two assumptions:
1. It assumes a fundamental lack of trust among people, so that a normal person will assume that one of his' or hers companions has taken something rather than consider some other less plausible explanation (e.g., that it was merely lost and none of them have it.) This assumption is strong enough to allow a bystander to presume that the owner is mityaesh at the moment of discovering his loss if he has no way to put pressure on his companion/s (e.g. there is more than one).
2. In a situation where the owner has only one companion, despite the presumed lack of trust between them, the owner assumes that his companion will admit to taking the object, given his lack of alibi. Likewise, if there is more than one companion, neither will own up, since there is always the option of blaming the other.
In my opinion, the first of these assumptions is not entirely implausible, though admittedly an uncomfortable view of human nature. We all know of the human tendency to assume that whatever happens to them is the result of some intentional act rather than merely an accident. The average person, upon discovering that a significant amount of money is missing from his wallet, will most likely assume that someone took it rather than consider the possibility that it just was lost. If only one person besides himself had access to the wallet, he will suspect that person. Remember, Rav Nachman is not suggesting that this is the way everyone without exception will act, and certainly is not advocating such an attitude. He is merely stating a legal principle that one can expect people to act in such a way, and he rules accordingly.
The second of these assumptions is focused on the owner's assumptions about the psychology of his companions. Within the same framework of the owner's suspicion, he will still believe that a single companion will own up, since there is no other explanation (that he considers) for the loss. Multiple companions will be more resistant to pressure, and will never admit their theft.
This second assumption seems particularly difficult: Rav Nachman assumes that the owner is suspicious of his companions to start with, such that he is willing to accuse them of theft upon discovery of the loss. If so, what basis is there for his confidence that the single companion will own up? Why does he have no difficulty suspecting his companion of theft, yet be unwilling to believe that his companion will flatly deny the theft in order to keep what he stole? According to Rav Nachman, the owner will only consider the possibility that his companion is lying if there is somebody else to blame.
Rashi was also uncomfortable
with Rav Nachman's ruling and offers us a different reading of the issue.
Look at Rashi, s.v. nakitna lei khu' נקיטנא ליה כו and s.v. ve-iy nakitna ve-khu' ואי נקיטנא וכו. Rashi accepts the first assumption of Rav Nachman's ruling
that the owner will assume that his money was stolen by his companion or
However, if the
plaintiff's claim is not explicit and certain, but merely the assertion
that the defendant may owe him money, no shevuat
heset is required and the defendant's denial is accepted without
an oath. Our case is a good example of such an
uncertain claim, since the owner is certain that one of his
companions took his money but does not know which one. In such
a scenario he cannot make a certain claim against either one and cannot
then obligate either of them to take an
However, if the plaintiff's claim is not explicit and certain, but merely the assertion that the defendant may owe him money, no shevuat heset is required and the defendant's denial is accepted without an oath. Our case is a good example of such an uncertain claim, since the owner is certain that one of his companions took his money but does not know which one. In such a scenario he cannot make a certain claim against either one and cannot then obligate either of them to take an oath.
Where there is more than one companion, the owner can no longer rely on the threat of the oath to force his companions to own up. Since the owner does not know which one of his companions is the thief, his claim against each one is uncertain (ta'anat shema). An uncertain claim by the plaintiff does not oblige the defendant to take an oath. The owner will conclude that he has no legal recourse and thus be mityaesh.
Rashi thus offers
an explanation for the difference between when the owner has one companion and
when he has two. In the former case, the owner can sue his companion and
force him to take an oath denying that he has taken the object. With such
a possibility outstanding, he will not abandon hope of recovering the
object. Thus the third party who witnessed the loss must return it to the
owner. In the latter case, the owner has no legal recourse - he has no way
of forcing his companions to admit the theft. Since the owner never
considers the possibility that neither of his companions was involved and that
the money is lost (remember assumption #1), the third party may keep what
he finds on the assumption that the owner was mityaesh.
In accordance with
Abaye's position that yeush she-lo mi-da'at is invalid, Rashi
points out that in the case of two companions, the finder may take
the lost money only after the owner becomes aware of the
loss. According to Rashi, we do not need any evidence of
this awareness, as we follow R. Yitzchak's assertion that people check
their money purses all the time. The
Tosafot, however, require that the witness also see
the owner and his companion looking for the lost money and not
finding it. This position has two advantages: 1. It provides psychological
grounds for the owner's suspicion of his companion/s. Since the
owner looked for the object and did not find it, he is justified in
assuming that [one of] his companion[s] took it. 2. It explains how the
witness knows that the owner is aware of the
In accordance with Abaye's position that yeush she-lo mi-da'at is invalid, Rashi points out that in the case of two companions, the finder may take the lost money only after the owner becomes aware of the loss. According to Rashi, we do not need any evidence of this awareness, as we follow R. Yitzchak's assertion that people check their money purses all the time.
The Tosafot, however, require that the witness also see the owner and his companion looking for the lost money and not finding it. This position has two advantages:
1. It provides psychological grounds for the owner's suspicion of his companion/s. Since the owner looked for the object and did not find it, he is justified in assuming that [one of] his companion[s] took it.
2. It explains how the witness knows that the owner is aware of the loss.
Rava, Rav Nachman's student, qualifies his teacher's ruling. Recall that Rav Nachman's ruling was based upon the assumption that the owner of the lost object will necessarily suspect his companions of theft (assumption #1). Though this may be true in some situations, it seems unlikely that such a lack of trust is so pervasive. Rava, presumably with this consideration in mind, limits Rav Nachman's ruling to a very small set of cases. When the lost object is valued at a peruta or more for every person involved, we cannot assume yeush, even when there is more than one companion. Why? Since there is always the possibility that the companions, or some of the companions, are partners, and trust one another, we cannot assume that the person who lost the money has given up hope of getting it back.
Why does the object need to be worth at least three perutas (i.e. one for each companion) for this consideration to be raised? Rashi, s.v. eimor shutfi ninhu אימור שותפי נינהו, explains that there is no obligation to return a lost object that is worth less than a peruta. This obligation is towards the other individual; in a case of three partners, unless the object is worth three perutas, there is no individual who has lost the value of a full peruta to whom one is obligated to return it. Thus with an object that is worth less than three perutas, there are only two possibilities: either they are all partners and no one has lost a peruta's worth such that the witness is obligated towards him, or the money belonged to one or two of them, in which case the owner is mityaesh, assuming that the object was stolen by whichever companion was not his partner. Rava insists, however, that when the object is worth at least as many perutot as the number of companions, we can never conclude that the owner was mityaesh and the finder must return the lost money to him.
The gemara records a different version of Rava's qualification of Rav Nachman's ruling that is even more extreme. According to this version, even if the lost money was worth only two perutas, the finder must return it, since the possibility remains that all three are partners that trust one another, yet one has withdrawn from the partnership of this money, such that the remaining two own a peruta each.
It seems clear that Rava disagrees fundamentally with Rav Nachman's psychological analysis. Rav Nachman's reasoning that one can assume yeush when there are more than two companions was based upon the understanding that the average person does not trust his companions and will suspect them of theft. For this reason he will be mityaesh when he has no legal recourse. Rava, by introducing the possibility of partners, is essentially introducing the possibility of trust between the companions. Since it is possible that three companions trust one another, we cannot assume that the owner of the lost money has given up hope of recovering his money. Instead of disagreeing with his teacher Rav Nachman, Rava qualifies his statement almost out of existence. He is unwilling to simply disagree with Rav Nachman and instead presents a legal scenario - partnership - that reflects a psychological reality that Rav Nachman did not consider.
The gemara now quotes a related statement of Rava's. Rava teaches us that the mitzva of hashavat aveida is made up of a conglomeration of both positive and negative commandments. This can be illustrated by certain borderline cases that include transgression of only some of these commandments. Before we continue, let us look at the various commandments as they appear in the Torah:
Learn now from "ve-amar Rava אמר רבא" until "u-meshkachna midi ומשכחנא מידי." Lines 9-14 in the schematic analysis.
Rava points out that when one sees someone else lose something and then proceeds to take it for oneself (i.e. to steal it) before the loser was mityaesh, then the finder transgresses all three of the commandment listed above. This is true even if later, after the loser was mityaesh, the finder decides to return it. Since yeush has already taken place, the object no longer belongs to the original owner and the repentant finder is merely giving him a gift and does not rectify his sin. Rava teaches us that yeush is the point of no return - once it has taken place, there is no longer a possibility of fulfilling the mitzva of hashavat aveida, since that property no longer belongs to the original owner. Do not misinterpret Rava's statement as implying that the thief in such circumstances is not obliged to return what he took. He certainly is, but in doing so he is no longer fulfilling the mitzva of hashavat aveida, but rather the obligation of a thief to return what he stole.
What if the finder originally picked up the lost object with the intention of returning it, but subsequently, after the owner had been mityaesh, decided to keep it for himself? In such a case, Rava says, the finder is not defined as a thief, since he did not take the object in order to keep it and only decided to do so after the owner had been mityaesh. Stealing is defined as the physical act of taking another's property. In this case, at the time he intends to steal, the object is already in his physical possession. The finder is also not culpable for ignoring a lost object and the obligation to return it since he in fact did not do so. However he is culpable of not fulfilling the mitzva of returning lost objects, which, once imposed upon him, is not canceled by the owner's yeush.
What if the finder waits until after yeush before taking the object for himself? Here, claims Rava, the transgression is only that of ignoring a lost object, lo tukhal le-hit'alem לא תוכל להתעלם. He is not a thief, since he took it after yeush. Nor is he obligated to return it, since that obligation is imposed upon him only once he takes it and by then the owner was mityaesh.
Finally, Rava rules that when one sees someone drop coins in the sand, one is not obligated*
What is the point of Rava's analysis? Rava is certainly not trying to teach us ways of taking others' property while 'minimizing' the halakhic damage. Rather, this kind of analysis sheds clearer light on the halakhic process. By analyzing hashavat aveida into its component parts, Rava helps future decisors to rule in difficult cases. Future decisors will understand that they need to consider all three mitzvot when ruling in a particular case.
Summary: In this shiur we have examined various scenarios in order to get a sense as to how the halakha determines yeush. Primarily, we looked at Rav Nachman's distinction between when the loser has one or more than one companion. We saw that Rava qualifies Rav Nachman's analysis severely. We also learned how Rava analyzes the mitzva of hashavat aveida into component parts.
|Schematic analysis from "ve-azda Rav Nachman...ואזדא רב נחמן" at the bottom of 26a until the mishna on 26b.|
|Translation of gemara||Schematic Analysis||Text of gemara 26a-26b.|
1. R. Nachman follows to his general reasoning, as R. Nachman said: If a person sees a sela [26b] fall from one of two people [who are together], he must return it.
|Expansion of previous discussion.||
1. ואזדא רב נחמן לטעמיה, דאמר רב נחמן: ראה סלע [עמ' ב'] שנפל משנים - חייב להחזיר.
2. What is the reason? He who dropped it is not mityaesh. He says to himself: Since no other person but this one was with me; then I will seize him and say to him, 'You took it.'
|Explanation of above ruling.||
2. מאי טעמא? ההוא דנפל מיניה לא מיאש. מימר אמר: מכדי איניש אחרינא לא הוה בהדאי אלא האי, נקיטנא ליה ואמינא ליה: אנת הוא דשקלתיה!
|3. In the case of three [people], he is not obligated to return it.||Further ruling||
3. בשלשה אינו חייב להחזיר,
|4. What is the reason? He who dropped it certainly is mityaesh, saying to himself, 'Since there were two with me; if I accuse the one he will say 'I did not take it', and if I accuse the other, he will say 'I did not take it.'||Explanation of further ruling.||
4. מאי טעמא - ההוא דנפל מיניה ודאי מיאש. מימר אמר: מכדי תרי הוו בהדאי, אי נקיטנא להאי - אמר: לא שקלתיה, ואי נקיטנא להאי - אמר: לא שקלתיה.
|5. Rava said: That which you said in the case of three he need not return it, that holds good only if it [the coin lost] lacks the value of a peruta for each [of the three]; but if it contains the equivalent of a peruta for each person, he is obligated to return it.||Qualification of Rav Nachman's ruling.||
5. אמר רבא: האי דאמרת בשלשה אינו חייב להחזיר - לא אמרן אלא דלית ביה שוה פרוטה לכל חד וחד, אבל אית ביה שוה פרוטה לכל חד וחד - חייב להחזיר.
|6. What is the reason? Say they are partners, and therefore they are not mityaesh.||Explanation of the qualification.||
6. מאי טעמא? אימור שותפי נינהו, ולא מיאשו.
7. An alternative version: Rava said: Even if it is worth only two perutas, he must return it.
|Alternative version of the qualification||
7. איכא דאמרי, אמר רבא: אף על גב דלית ביה אלא שוה שתי פרוטות חייב להחזיר.
|8. What is the reason? They may have been partners, and one renounced his portion to the other..||Explanation of the alternative version.||
8. מאי טעמא? אימור שותפי נינהו, וחד מנייהו אחולי אחליה למנתיה גבי חבריה.
|9. Rava also said: If one sees a sela' fall, if he takes it before yeush, intending to steal it, he transgresses all [the following commandments]: Do not steal, Return [lost objects], and, you must not ignore. .||Halakhic analysis.||
9. ואמר רבא: ראה סלע שנפלה, נטלה לפני יאוש על מנת לגוזלה - עובר בכולן; משום +ויקרא י"ט+ לא תגזול ומשום +דברים כ"ב+ השב תשיבם ומשום +דברים כ"ב+ לא תוכל להתעלם.
|10. And even if he returns it after yeush, he is merely giving him [the loser] a gift, while the transgression he has committed stands.||Elaboration of above.||
10. ואף על גב דחזרה לאחר יאוש - מתנה הוא דיהיב ליה, ואיסורא דעבד - עבד.
|11. If he picks it up before yeush, intending to return it, but after yeush decides to keep it, he violates [the commandment,] Return [lost objects].||Halakhic analysis.||
11. - נטלה לפני יאוש על מנת להחזירה, ולאחר יאוש נתכוין לגוזלה - עובר משום השב תשיבם.
|12. If he waits until the owner is mityaesh, and then takes it, he transgresses only 'you must not ignore.'||Halakhic analysis.||
12. המתין לה עד שנתיאשו הבעלים ונטלה - אינו עובר אלא משום לא תוכל להתעלם בלבד.
|13. Rava said: If a man sees his neighbour drop a coin in sand, and then finds and takes it, he is not obligated to return it.||Halakhic analysis and ruling||
13. אמר רבא: האי מאן דחזי דנפל זוזי מחבריה בי חלתא, ואשכחיה ושקליה - לא מיחייב לאהדורי ליה.
|14. What is the reason? He from whom it fell is mityaesh, and even if he is seen to bring a sieve and sift [the sand], he is merely reasoning. 'Just as I dropped something, so may another have lost something and I will find something.'||Explanation and elaboration of above ruling.||
14. מאי טעמא - ההוא דנפל מיניה מיאש הוא, אף על גב דחזייה דאייתי ארבלא וקא מרבל - מימר אמר: כי היכי דנפול מינאי דידי - הכי נפול מאיניש אחרינא, ומשכחנא מידי.
nakitna lei, khu', I will take him, etc.- I will [make him take] a heset oath, and [thus] he will not be mityaesh immediately upon checking [his purse] and not finding [the lost money]. It turns out that [the money] comes into his possession before yeush, and the halakha is according to Abaye [that yeush she-lo mi-da'at is not valid and therefore the finder must return the money found].
כו' - משבענא ליה שבועת היסת, ולא נתייאש מיד כשמשמש ולא מצא, ונמצא
שבא ליד זה לפני יאוש, והלכה כאביי.
iy nakitna vekhu', if I take, etc. - [here,] he cannot [make him take] a heset oath with a uncertain claim. For only those listed in the mishna must take an oath against a uncertain claim (Shavuot 45a).
If you should ask: Did [the sela] not come into [the finder's] possession before yeush and don't we rule according to Abaye in the YAL KeGaM cases [such that yeush she-lo-mi-da'at is invalid and therefore the fact that the owner will be mityaesh in the future is irrelevant]. [The answer to this problem is that we follow the ruling of] R. Yitzchak, [who asserts] that a person ordinarily checks his purse all the time (Bava Metzia 21a) [i.e., the owner was mityaesh before the witness picked up the lost money].
וכו' - ואינו יכול להשביעו בטענת שמא, שאין נשבעין בטענת שמא אלא
אותן השנויין במשנה: ואלו נשבעים שלא בטענה כו' (שבועות מה, א), ואם תאמר: הא
מקמי יאוש אתי לידיה, ואוקימנא הלכתא כאביי ביע"ל קג"ם, הא אמרן דמעות מידע
ידיע מיד, כרבי יצחק, דאמר: אדם עשוי למשמש בכיסו כו' (בבא מציעא כא,
|eimor shutafi ninhu, say they are partners - in this sela, and they trust one another and do not suspect one another [of stealing the other's] share. When he checks his purse and does not find it, he is not mityaesh. He says to himself: one of my partners found it, and he is silent [because he is trying] to tease me. It turns out that when it came into [the finder's] possession it was before yeush. Since we hold like Abaye, he must return it, even though a sela is something that does not have a siman. However, when [the lost money] is not worth [at least] three perutot, then one way or the other [it is permitted]: Either they are partners in it, and thus there is no [mitzva of] hashavat aveida (returning lost property - because there is not sufficient value to be returned to any individual), or, if it belongs to one of them or to two of them, they have been mityaesh and said [to themselves]: our companion is a thief and he is trying to escape by saying that he did not take it; one of you took it and stole it from his fellow.||
נינהו - בסלע זו, ונאמנים זה על זה, ואין האחד חושד את חבירו בחלקו,
ולכי מישמש בכיסו ולא מצאה - לא אייאש, מימר אמר: אחד מן השותפים מצאה,
ולצערני הוא שותק, ונמצא, כשבאת ליד זה - לפני יאוש באת לידו, והא אוקמיה
כאביי, הלכך אף על גב דסלע דבר שאין בו סימן הוא - חייב להחזיר, אבל כי אין
בו שלש פרוטות, מה נפשך; אי שותפין הן בו - אין כאן משום השבת אבידה, ואם של
אחד מהם הוא או של השנים - נואשו ואמרו חברנו זה גנב הוא, והרי משמט ואמר לא
לקחתיו, אחד מכם לקחו וגנבו מחבירו.
Key Gemara Terms
|al menat: in order to||
|azda: follows, goes.||
|achulei achlei: he forgives, renounces.||
אחולי אחליה (מחל)
|amina: I say, I'll say.||
|mantei (mana): his portion||
|nakat, nakitna: take, seize; nakitna: I take, I'll take||
|sela: Talmudic coin. = 4 dinars = 768 perutas||
|avad: does, did.||
|al menat: in order to||
|peruta: smallest Talmudic coin. Considered the minimal amount of value.||