22a: Unintentionally Abandoning Objects (4)

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/dafprint.asp?mesechta=22&daf=%2022a 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:

    We continued our attempt to resolve the makhloket between Rava and Abaye about yeush she-lo mi-da'at.  Once again this attempt was inconclusive but along the way we came to the understanding that the applications of the concept of yeush extend far beyond the return of lost objects.  One's right to benefit from fruit that has fallen into the road is a function of yeush.  Likewise, the ability of a victim of theft to recover a stolen object that is no longer in the possession of the thief depends upon yeush. 

    In this week's shiur, we will continue the discussion of yeush she-lo mi-da'at. This week the shiur will be relatively short because it deals with a particularly difficult passage.  Open to daf 22a.  Learn from Ta shema:  Shataf nahar..." ת"ש (תא שמע) שטף נהר (line 6 on the daf) until "...iyushi meyaessh אייאושי מיאש" (line 15 on the daf).  Lines 1-6 in the Schematic Analysis. 

    The precedent the gemara raises this time is a baraita dealing with items lost in a flood.  Before we discuss the content of this baraita, let us pause for a moment on a technical methodological point.  How do you know where the baraita begins and ends?  How does one distinguish between the text of the baraita and the text of the gemara about the baraita?  There is no single way of making this determination, but the following clues are useful:

1. Tannaic sources (mishnayot [plural of mishna] and baraitot) are almost always in Hebrew while the stama de-gemara (anonymous gemara text) is usually in Aramaic. 

2.  Quotes, especially authoritative references to a Tannaic source, usually begin within a heading, like Ta Shema.  There are other headings which we will discuss as we come across them.

3.  One can often recognize a Tannaic source through its attribution.  When the gemara says "R. Meir says..."  it will be quoting a baraita or a mishna, since R. Meir is a Tana.  Tanaim are usually referred to with the title Rabi רבי, while Babylonian Amoraim receive the title Rav רב.  One needs to be careful, however, since Palestinian Amoraim are also referred to as Rabi and there are many cases of Amoraim with the same names as Tanaim.

4.  One of most significant identifying signs of a baraita or a mishna is the style.  Generally, Tannaic sources express direct rulings or principles without much discussion or argument.  (The exception to this is Midrash Halakha, the extraction of laws from Biblical verses, which is primarily Tannaic.)  The stama de-gemara, on the other hand is focused precisely on the argument and the discussion of the Tannaic sources.  

    Let us go back to our baraita and see how we can put these methods into practice.  Our baraita opens with Ta Shema, so its beginning is clearly delineated.  The end is less clear, but the words "ta'ama de-nitya'ashu טעמא דנתיאשו" already sound like Aramaic rather than Hebrew.  In addition, the previous passage, "mi-penei she-nitya'ashu ha-ba'alim מפני שנתיאשו הבעלים" is the end of the ruling about the items swept away by the flood.  Given these hints, we can confidently assert that "mi-penei she-nitya'ashu ha-ba'alim מפני שנתיאשו הבעלים" is the end of the quote from the baraita. 

    Now let's examine the content of the baraita.  We are taught that building materials that have been swept away by river and end up in someone else's field belong to the owner of the field, since the original owner has been mityaesh. This statement in and of itself does not help us with the question of yeush she-lo mi-da'at, since it refers to a case in which the yeush is explicit.  However, the gemara claims, the very fact that the baraita explicitly requires yeush implies that in the absence of actual yeush, the owner of field in which the material washes up may not keep them.  In other words, in stating that yeush is a pre-requisite for making the timber, etc., available to the finder, the baraita is indicating that yeush she-lo mi-da'at, i.e. the fact that the original owner is destined to lose hope of recovery, is not sufficient. 

    The gemara's logic is not very clear:  The baraita states that the owner of the field may keep the washed up material "since the owners have been mityaesh."  How does that imply that "ordinarily, this is not the case?"  Look at Rashi s.v."harei elu" הרי אלו and s.v. "ha stama" הא סתמא on the third line of Rashi on the gemara page.  Text and translation appear after the schematic analysis. 

    Rashi begins by stating what he believes to be the correct text of the gemara.  Many commentators gloss a different text than that suggested by Rashi, but since the printed text follows Rashi's gloss (a common phenomenon), we will not go into that issue now. Rashi then explains what the gemara means by "they are his since the owners have been mityaesh."  He claims that the case of the building materials washed away by the river is unusual - because of the extraordinary circumstances (the flood), the owner cannot help but to have heard that his beams, timber, etc., have been lost. 

    From the next Rashi, s.v. "ha stama," we can understand the gemara's deduction that this baraita implies that yeush she-lo mi-da'at is not yeush.  According to Rashi, the whole point of the baraita is to describe an exceptional case - a case in which the owner necessarily is aware of his loss.  By singling out this case, the baraita implies that in the ordinary("stam" סתם) case, in which we cannot presume awareness of the loss, there is no yeush.  This of course is difficult for Rava, who does not require that the owner be aware of the loss, so long as the lost object does not have simanim.  

    How does the gemara defend Rava's position in light of the above conclusion?  With the help of an ukimta:  the case described in the baraita should be understood as a situation in which the original owner can still recover the property.  Thus the baraita teaches us that in the case of a river that has swept away someone's property, even though recovery by the owner is possible, it belongs to the owner of the field where they wash up, since we presume that the original owner has been mityaesh. 

    How does this new reading salvage Rava's position?  Let's look at the next Rashi, s.v. "she-yakhol le-hatzil" שיכול להציל.  Remember that the proof from the baraita depends upon the argument that the baraita is dealing with a special case - a case in which there is automatic awareness of the loss on the part of the owner.  The baraita emphasizes that the right of the finder to keep the washed away material derives from our knowledge that the original owner has been made aware of the loss and was mityaesh.  This emphasis implies, says the gemara, that in an ordinary case, where there is no such presumption of awareness, the finder cannot keep it because we do not know if actual yeush took place.  Once we insist, says Rashi, that the baraita is talking about a situation in which the original owner has the ability to recover his lost belongings, the parallel ordinary case becomes different.  The parallel is no longer a lost object that has no simanim, for then the owner has no ability to recover his lost object.  Rather, the parallel is a lost object with simanim, that would enable the original owner to recover his loss by the presentation of his simanim.  In such a case (see shiur #3), Rava admits that yeush she-lo mi-da'at is invalid, and the finder must return the lost object.

    Let us review this point one more time.  Rashi argues that the baraita is an attempt to teach us an exception, a case in which there is yeush, since the owners were made aware of the loss immediately.  This implies that in an ordinary case, where we cannot presume that the owners are aware of the loss, there is no yeush.  This accords with Abaye's position that yeush she-lo mi-da'at is invalid.  Rava - who insists that future yeush (yeush she-lo mi-da'at) is sufficient to permit the finder to keep the lost object - must explain why the baraita is not a problem.  The gemara does this by asserting that (according to Rava) the baraita is dealing with flood loss that is still recoverable.  Even under such circumstances, the baraita teaches us, there is yeush on the part of the owner given the special nature of washed away building materials.  Other situations of lost objects are implicitly different - they must be returned if the owner still has the ability to recover them.  Rashi points out that the analogous 'ordinary' case is not to a lost object with no simanim, for there the owner does not have the ability to recover his object.  Rather, the analogy is to a lost object that has simanim.  If so, all that the baraita implies is that lost objects with simanim must be returned, since the owner is not miyaesh.  Rava agrees with this - yeush she-lo mi-da'at is only applicable to non-recoverable objects - i.e. objects without simanim.

    The gemara then refers us to the continuation of the baraita which does not seem to fit with Rava's ukimta.  The seifa of the baraita states a qualification - if the owners are pursuing their lost building materials in order to recover them, we cannot presume yeush and the finder must return them.  The gemara asks:  if we are talking about a situation in which the owners have the ability to recover the lost beams, timber, etc., why is there no yeush only when we have seen that the owner is actively trying to recover the lost objects?  After all, the owners can get their materials back whenever and that should be enough to prevent us assuming that they have been mityaesh.

    To put it another way - the very fact that we are talking about a case in which the owners have the ability to recover the washed away material should be enough for us to assume that the owners are not mityaesh.  If this is so, why does the baraita insist that only when the owners can be seen actively attempting recovery is our presumption of yeush cancelled?

    In response, the gemara refines the ukimta:  the case in the baraita is one in which the owner could salvage his property with difficulty.  Rashi, s.v. "al yedai ha-dechak" על ידי הדחק explains:  if the owner hurries, he or she may still retrieve the lost objects.  Under such circumstances, we assume that there is yeush if he is not actively trying to recover his property.  Quiescence on his part is tantamount to yeush. Thus the baraita, according to Rava, comes to teach us that even objects that are in principle recoverable can be subject to yeush if the opportunity for recovery is about to end and yet the owner does nothing. This has no bearing whatsoever on yeush she-lo mi-da'at, which applies only to objects that are in principle not recoverable.    

    Thus we have offered an alternative reading of the baraita that does not imply a challenge to Rava's opinion and the status of yeush she-lo mi-da'at remains unresolved.

                

Schematic Analysis #6

 

Page 22a from "Ta shema:  Shataf nahar..." תא שמע שטף נהר until "...iyushi meyaesh אייאושי מיאש".

 

Translation of gemara	Schematic Analysis	Text of gemara 22a
1.  Ta shema: When a river has swept away his beams, timber, or stones, and has deposited them in a neighbour's field, they belong to him [the neighbour] because the owners have been mityaesh.	Prooftext supporting one side of the makhloket.	א.  תא שמע: שטף נהר קוריו עציו ואבניו ונתנו בתוך שדה חבירו - הרי אלו שלו, מפני שנתיאשו הבעלים
2.  The reason [why they belong to the neighbour] is that the owners have been mityaesh  - implying that ordinarily (i.e. where there is no explicit yeush) this is not the case (i.e. they would not belong to the neighbour)!	Explanation how the prooftext supports one position and is difficult for the other.	ב.  טעמא , דנתיאשו הבעלים, הא סתמא - לא
3.  Here we are dealing with a case where [the owner] is able to retrieve them.	Rebuttal through ukimta of the prooftext.	ג.  הכא במאי עסקינן כשיכול להציל.
4.  If so, I must refer you to the seifa:  ‘If the owner was running after them, [the neighbour] must return them.’	Quote from the continuation of the prooftext that raises a difficulty with the ukimta.	ד.   אי הכי , אימא סיפא: אם היו הבעלים מרדפין אחריהם - חייב להחזיר.
5.  Now if [we understand this to be a case where the owner] is able to retrieve them, what is the relevance of ‘he is running after them?’ [They should belong to him] even if he is not running after them!	Explanation of the difficulty with the ukimta.	ה.  מאי אריא אי ביכולין להציל - מרדפין? אפילו אין מרדפין נמי
6.  We are dealing here with a case where the owners are able to retrieve [the property] but with difficulty: If they run after it [we conclude] that they are not mityaesh; if they do not run after it [we conclude] that they have been mityaesh.	Refinement of the ukimta and explanation as to how that refutes the difficulty.	ו.  הכא במאי עסקינן - ביכולין להציל על ידי הדחק, מרדפין - לא אייאוש, אין מרדפין - אייאושי מיאש.

 

 

Selections from Rashi daf 22a
Translation	Rashi Text
They belong etc. -  Gloss thus: "they belong to him [the neighbour] because the owners have been mityaesh."  Any time a river flood such that it washes away beams, stones and boards, the owners knows immediately as it has a "voice" (i.e. people talk about it and the owner will hear).	הרי אלו כו' - הכי גרסינן: הרי אלו שלו מפני שנתיאשו הבעלים, דכל שטיפת נהר כקורות עצים ואבנים, הבעלים ידעו בה מיד, דיש לה קול.
Implying that ordinarily - implying that regarding a different lost object, in which we cannot presume that the owners are aware [of the loss], it will not belong to the finder and thus [this baraita] is difficult according to Rava.	הא סתמא - הא אם היתה אבידה אחרת, שאין לנו לומר שידעו הבעלים - לא הויא של מוצאה, קשיא לרבא
[The owner] is able to retrieve them - the parallel  in a different found object would be something that has a siman,  such that the owner can present the siman and recover [his property].  [In this case] I (i.e. Rava) admit that one is obliged to return [the lost object].	כשיכול להציל - ודכוותה במציאה אחרת: דבר שיש בו סימן, דיכול ליתן סימן וליטול - מודינא בה דחייב להחזיר
Even if he is not running after them - They rely on their ability to recover tomorrow or another day, and are not mityaesh.	אפילו אין מרדפין נמי - דסמכי אהצלה דלמחר וליומא אוחרא, ולא מייאשי.
With difficulty -  If he does not rush to recover [the lost material] he will not recover it.  Therefore, if he is not pursuing (the lost property), [we can deduce] that he has made it hefker (ownerless), for he knew [that it was lost) and did not [try to] save it.	על ידי הדחק - ואם לא ימהר להציל לא יצילו, הלכך, אין מרדפין - אפקורי אפקרינהו, דהא ידעו ולא הצילו
Did not eat - [for fear] that they were stolen, as the owner did not know.	לא אכל - דגזל נינהו, שהבעלים לא ידעו.

 

Key Gemara Terms

 

iy hakhi,  if so	אם כן	אי הכי
hakha be-mai 'askinan, what are we dealing with here	במה עוסקים אנחנו כאן	הכא במאי עסקינן
ta'ama, the reason	הטעם	טעמא
mai irya, what is the relevance of	מה שייך	מאי אריא

General vocabulary

 

iy hakhi,  if so	אם כן	אי הכי
hakha be-mai 'askinan, what are we dealing with here	במה עוסקים אנחנו כאן	הכא במאי עסקינן
ta'ama, the reason	הטעם	טעמא
mai irya, what is the relevance of	מה שייך	מאי אריא
stama, ordinary, simple [case]	סתם	סתמא