27a-b: Are Simanim From the Torah? (1)

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Summary of last shiur:   In the last two shiurim, before Pesach,  we were given a peek at the world of midrashei (plural of midrash) halakha, based on the midrash halakha appearing in the mishna on 27a.  We learned how the Rabbis derive some of the basic laws of returning lost objects from the Biblical text:  The obligation to return a lost object applies only when it has a minimal value, it has claimants and simanim, and is not 'lost to all."   Along the way, the gemara made mention of a question - are simanim de-oraita or de-rabanan?  Is the Biblical text the source of the law that one returns a lost object when the owner presents simanim (i.e. simanim de-oraita)?  Or is this a Rabbinic enactment (i.e. simanim de-rabanan)?     This week we will address that question.

    Learn now from "Ibaya lehu אבעיא להו " on 27a until "rabanan takanta רבנן תקנתא" on 27b.  Lines 1-4 in the schematic analysis.

    The Rabbis inquired as to whether simanim derive their force from the law of the Torah or from a Rabbinic enactment.  The meaning of this question needs to be considered carefully.  Simanim function on two levels:  they are the reason the owner is not mityaesh and  the proof of ownership that the owner uses is to legitimize his claim. The question of whether simanim are de-oraita or de-rabanan is focused on the status of simanim as proof of ownership.  It is true that the obligation to return a lost object also depends upon  the presence of simanim, for in their absence, the owner presumably will be mityaesh from recovering the lost object.  Yeush, however, is incidental to our question, which is one of rules of evidence:  Is the fact that the owner can present identifying simanim sufficient evidence according to Biblical law?  If simanim are de-oraita, then the Torah grants the owner the ability to assert ownership of an object by merely identifying it according to simanim.  On the other hand, if we say that simanim are de-rabanan, we are saying that in the absence of hard evidence, such as witnesses, the fact that the owner can present simanim is not sufficient to support his claim.  De facto, the rabbis instituted that simanim could count as evidence but that is not the original law.     

    Although, de facto, it is clear that the owner can base his claim on simanim, the gemara's question of the status of simanim is not merely an academic one. There are situations in which civil law interacts with ritual law.  These interfaces are often useful as ways of testing the scope or force of a principle, as we see here.  The question of whether simanim are de-oraita or de-rabanan determines the law in the case when the lost object is a ritual one, in this case a get (bill of divorce).  The husband must be the legal owner of the bill of divorce for it to be effective.  If simanim count as real evidence, then it is possible to return the lost get to the husband  so that he may proceed with the divorce.  If, however, simanim are not really evidence, and only by rabbinic enactment do we relate to them as such, then it has not been established according to biblical law that this get belongs to the husband.  In other words, we do not know, according to the biblical standard of knowledge, that the get belongs to him.  However, we do know that the husband and wife are married, so that when he gives her the get in order divorce her, there remains a doubt as to whether she is divorced.  Perhaps that was not the original get!  Under such circumstances, the get should not be returned to the husband, even if he had simanim, and he would be required to write a new one. 

    One might wonder at this bifurcation between civil and ritual law.  If the Rabbis have the power to broaden the concept of evidence in civil law, why does that not extend to the ritual realm?  Even if simanim are only mi-derabanan, how can simanim be evidence of ownership in one way and not the other?  Rashi, on the top of 27b,  s.v. be-mamona, explains that the ability of the rabbis to grant simanim the status of evidence is not because they have the power to make something evidence when it is not.  Rather, they have a different power, called hefker beit din hefker, i.e. that the court has the ability to remove and re-assign ownership.   The ability to change the laws of evidence is merely a function of this general principle.  In making simanim effective mi-derabanan, the rabbis are not declaring that from now on we can identify the owner as the one who presents simanim. Rather, they are granting ownership to whoever presents the simanim, so that effectively, we call the one who presents simanim the owner, even though that has not been established according to biblical law.

    The difference between simanim de-oraita and simanim de-rabanan is now clear.  If simanim are de-oraita, the presentation of simanim is a way of discovering the original owner.  Once we have established that someone is the original owner of a get, we can give it back to him and he may use the get.   However, if simanim are de-rabanan, we return the lost object to the presenter of simanim not because we now know that he is the original owner.  We do not know that; however the rabbis have decreed that the object belongs to him anyway.  This works fine as far as the laws of ownership go, but the laws of divorce require that the husband not merely own the paper, but that it be his get, written at his initiative and for him.  One may not use a generic get, so the fact that he has been awarded the lost get does no good.  Under such circumstances, we would not return a lost get to the husband for fear that he would use it. 

    The gemara next proceeds to attempt to resolve the ba'aya by bringing prooftexts that seem to support the position that simanim are de-oraita.  Learn now, on 27b, from "Ta shema: Af ha-simla תא שמא: אף השמלה" until "lo, be-eidim לא, בעדים".  Lines 5-11 in the schematic analysis.

    The first prooftext is the mishna that we learned on the previous page.  Recall that the mishna based itself on the superfluous mention of simla שמלה, garment, in the verses recounting the laws of lost objects.  The garment becomes the analogical paradigm for all lost objects -  like a simla, any lost object must have simanim and a claimant in order that the finder be obligated to announce it.  This mishna, in using the verse as the source for the requirement of simanim, seems to clearly indicate that the simanim are a Biblical requirement.  The gemara, however, rejects this proof.  The biblical verse specifies "simla שמלה, garment" in order to teach us that the lost object must have a claimant, it must not be hefker.  The mishna included simanim only incidentally.

    At first glance, this answer appears dishonest.  One cannot disregard the fact that the mishna does include simanim in the attributes learnt from simla by saying that it is merely incidental.  If that is the case, then one can never prove anything from a precedent because one can always claim that its specific content was not meant to be taken seriously.   However, there are two reasons why it is not so outrageous to disregard the inclusion of simanim in the mishna. 

    First, on a technical level, midrash halakha, as exemplified in the mishna, usually only allows the derivation of one law from a superfluous word.  This mishna wants to derive both the requirement of a claimant and of simanim from the same word.  It is thus legitimate to say that simanim are included only incidentally since the midrash halakha has already accounted for the inclusion of "simla"  in the verse as a source for the requirement that there be a claimant. 

    Second, the simanim in the mishna do not seem to be the simanim that we are looking at.  The mishna uses "simla" to teach us about the nature of the lost object - it must belong to someone (i.e. have a claimant) and it must have simanim, i.e. be identifiable as belonging to that person in order to incur an obligation to return it.  However, our question as to whether simanim are de-oraita or de-rabanan is not about the nature of the obligation to return lost objects.  Rather it is about the rules of evidence - how can the owner prove that he is that?  It is perfectly possible that the obligation to return lost objects be limited to objects that are identifiable through some physical characteristic (i.e. a siman) and yet not to believe the owner's claim merely on the basis of his knowledge of that siman. Perhaps, on the one hand, the object must have a siman,  but the owner must also have witnesses who testify that he is the owner of the object identified by that siman. 

    The next proof comes from the gemara's discussion of our mishna on 27a.  Recall, that the gemara addressed the other superfluous words in the verses about hashavat aveida and tried to derive a law from each one (See shiur #22).  In the case of the word "donkey חמור", the gemara learned that simanim need not be part of the lost object and that one returns a donkey based on the simanim found on its saddle.  Since this law is derived from the Biblical verse, it would appear that the concept of simanin implicit in this law is also Biblical. 

    Here too the gemara rejects the proof very casually.  The midrash halakha about the word "donkey חמור" had two parts - that the additional word teaches us that a donkey is returned in accordance with testimony as to the owner of its saddle or simanim on its saddle.  The gemara suggests that one who holds that simanim are de-rabanan would use word "donkey" to teach that testimony about the saddle applies also to the donkey and would leave out the section on simanim.  Though this rejection of the proof also appears to be too easy a way out, both caveats mentioned above apply here as well.  Once the word "donkey" has been accounted for; i.e., to teach that testimony on the saddle can apply also to the donkey, it is natural to drop the second part of the midrash that applies to simanim.  Additionally, here too the discussion of simanim is focused on the attributes of the lost object and may not apply at all to the rules of evidence. 

    The next proof comes from a baraita that records a midrash halakha:  The Torah teaches that the finder of a lost object must take care of it "until your fellow seeks after it and [then] you must return it to him."  Initially, the baraita understands that the words "seek after it" refer to the claim made on the part of the original owner.  The verse then teaches that one  is obliged to return a lost object only when the loser claims it as his own.  The baraita wonders:  how could the finder return it before the original owner claims it?  How is he to know to whom to return it if their is no claimant?  Rather, says the baraita, the words ""until your fellow seeks after it"  teach  a different point - that finder should "seek" (i.e., test) the claimant to see that he is not a fraud.  

    How does the finder test the claimant's claim?  The gemara understands that demanding identifying simanim from the claimant fulfills this task, as only the original owner willl know how to do this.  If this is so, then we have a found a source that at least implicitly requires simanim as a de-oraita requirement.  However, this proof is also rejected.  The de-oraita level requirement to ensure that the claimant is not a fraud could just as easily be understood as requiring the claimant to bring witnesses to establish his ownership.  Only after the Rabbis instituted simanim did the owner's mere description of the lost object become a relevant way of testing his honesty.

    Learn now on 27b from "Ta shema: ein me'idin תא שמע: אין מעידין" until "mi-shum de-mezayef משום דמזייף".  Lines 12-19 in the schematic analysis. 

    This time the gemara presents a mishna (in Tractate Yevamot) that deals with the identification of a dead body in order to permit the deceased's wife to remarry.  According to the mishna, the witnesses who testify that they saw someone's corpse must identify him by his face. 

    The gemara, however, rejects this proof.  When the mishna in Yevamot rejects simanim as a means of identification of a body, it does so only with regard to simanim that are not reliable.  One cannot identify a body on the basis of whether it is that of a tall or short person.  Futhermore, even if the simanim on the clothes found on a body are uniquely identifying, they are not sufficient to identify the body itself, since there is always the possibility that the clothes were borrowed.  The fact that the mishna in Yevamot rejects simanim of this sort does not teach us that simanim in general are not a reliable means of identification. 

    However, this attempt to explain the rejection of simanim in the mishna in Yevamot runs into a difficulty.  If simanim on the clothes are of a body are insufficient because we are concerned that perhaps they were borrowed, how can a lost donkey, as we learned before, be identified by the simanim of its saddle?  Perhaps the saddle was borrowed? 

    The gemara offers two different resolutions of this difficulty.  In the first, the gemara accepts that the point is well taken, that the rejection of simanim on the clothes of a corpse does indeed conflict, prima facie, with the rule about returning a donkey through the simanim of its saddle.  However, on further thought, there is a distinction to be made.  Saddles are not usually borrowed as a poor-fitting saddle will chafe the donkey's back.  The mishna in Yevamot, rejecting the simanim found on the clothes of the corpse, rejects the validity of simanim found on things usually borrowed.  The gemara, when it learns that simanim of the saddle can apply also to the donkey does not contradict this but rather asserts that accessories that are not usually borrowed, like saddles, can provide simanim.

    The second resolution to the seeming contradiction between the invalidity of simanim on the clothes of the corpse but the validity of the simanim of the saddle is to qualify, through an ukimta, what is meant by the simanim of the clothes.  Accordingly, when the mishna rejects simanim of the clothes, it does not do so categorically.  Before we said that the simanim on the body that are invalid are those like its height, which do not uniquely identify a person. So too, simanim on the clothes, like their color, if not uniquely identifying, are unacceptable.  If this is the case, then there is no conflict between this mishna and the gemara that validated simanim on the saddle.  So long as the simanim on the saddle are uniquely identifying, they may be used to support a claim to ownership of the lost donkey. 

    This second resolution implies another point.  Previously, we explained that simanim on the clothes of a corpse cannot be used to identify it since we must consider the possibility that they are borrowed.  According to this second resolution, that concern has now been dismissed.  The problem with the simanim on clothes mentioned in the mishna is that they are insufficiently conclusive.  We are not, however concerned with the remote possibility that the clothes are borrowed and that is why there is not contradiction between the mishna in Yevamot and the gemara about simanim on the saddle.    

The discussion of the proof from the mishna in Yevamot is a little complex so we will summarize it in the following table:

    The gemara now returns to the first resolution of the difficulty provided according to the position that simanim de-oraita.  Recall that there we concluded that simanim on clothes or accessories are invalid because we are concerned that they are borrowed.  Only simanim on accessories not usually borrowed, like saddles, are valid.  The gemara raises a question based on a baraita concerning a lost get.  The baraita states that if the get was later found attached to the husband's purse, bag, or signet ring, then even if a long time has passed the husband may use that get to divorce his wife.  Now if we are concerned that the accessory on which the simanim are found is borrowed, how can we be so sure that the get is his?   Perhaps the husband loaned his purse to someone else whose get it is?  Apparently, we do not concern oursleves with the remote possibility that the purse was borrowed and likewise we should not with regard to the clothes! 

    The gemara explains that we do in fact concern ourselves with the possibility of borrowed accessories, but in accordance with the distinction made above - only with those accessories that people ordnarily lend and borrow.  Purses, money-bags, and signet rings are not usually lent out:    Purses and money-bags because people are superstitious about them and signet rings because of the danger of forgery.  So when a get is attached to one of these, they may provide a siman as to the owner of the get, since they are not usually borrowed. 

    We will conclude here, though the discussion of simanim de-oraita or de-rabanan continues until the next daf.  This time, we have established the parameters of the question and explored various attempts to resolve it through prooftexts.  So far, all the proofs have been rejected, but along the way we have learned something of the nature of rabbinic enactments and also have refined our understanding of simanim.  Next week we will pick up the ongoing discussion.

1. The scholars propounded: Are simanim [legally valid] by Biblical or merely by Rabbinical law?

1. איבעיא להו: סימנין דאורייתא או דרבנן?

2.  מאי נפקא מינה?   

3.  [דף כז עמ' ב'] לאהדורי גט אשה בסימנים.

4.  אי אמרת דאורייתא - מהדרינן, ואי אמרת דרבנן, כי עבוד רבנן תקנתא - בממונא, אבל באיסורא - לא עבוד רבנן תקנתא.

5.  תא שמע: אף השמלה היתה בכלל כל אלו, ולמה יצאת - להקיש אליה ולומר לך: מה שמלה מיוחדת שיש לה סימנין ויש לה תובעין - חייב להכריז, אף כל דבר שיש לו סימנין ויש לו תובעין - חייב להכריז!

6. תנא תובעין אצטריכא ליה, סימנין כדי נסבא.

7.  תא שמע: חמור בסימני אוכף!

8.   אימא: בעדי אוכף.

9.  תא שמע: +דברים כ"ב+ והיה עמך עד דרש אחיך אתו, וכי תעלה על דעתך שיתננו לו קודם שידרשנו? אלא, דרשהו אם רמאי הוא או אינו רמאי.

10.  מאי לאו בסימנין? -

11.  לא, בעדים.

12.  תא שמע: אין מעידין אלא על פרצוף הפנים עם החוטם, אף על פי שיש סימנין בגופו ובכליו.

13.  This proves that identification marks are not Biblically valid!

13.  שמע מינה: סימנין לאו דאורייתא! 

14.  אמרי: גופו - דארוך וגוץ, כליו - דחיישינן לשאלה.  

15.  אי חיישינן לשאלה, חמור בסימני אוכף היכי מהדרינן? -

16.  אמרי: אוכף, לא שאולי אינשי אוכפא, משום דמסקב ליה לחמרא.

17.  איבעית אימא: כליו - בחיורי ובסומקי.

18. 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. 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! 

Further difficulty with the conclusion drawn from the reading  in (14) above

18.  אלא הא דתניא: מצאו קשור בכיס או בארנקי ובטבעת, או שמצאו בין כליו - אפילו לזמן מרובה כשר. ואי סלקא דעתך חיישינן לשאלה, כי מצאו קשור בכיס אמאי כשר? ניחוש לשאלה!

19.  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;  a signet ring, because one can commit forgery therewith.

Resolution of the difficulty.

19.  אמרי: כיס וארנקי וטבעת לא משאלי אינשי. כיס וארנקי - משום דמסמני, וטבעת משום דמזייף.

Selection from Rashi, daf 27b.

Rashi Text

Translation

בממונא - דהפקר בית דין הפקר.

be-mamona - in monetary (civil) [law] - since the beit din (court) has the power to make things ownerless (i.e. the power to remove and bestow ownership.)

איצטריכא ליה

חייש, חיישינן ניחוש

איצטריכא ליה

גט

דאורייתא

דרבנן

לבן

חיור

חייש, חיישינן ניחוש

להחזיר

 לאהדורי

אדום

סומק