Identifying Marks (27a-27b)

  • Harav Aharon Lichtenstein
  1. Bava Metzia 27a-28a, “Ibbaya lehu… de-leiteih damei ve-yaniach.”
  2. Gittin 27a, “Ha-mevi get… li-zman merubbeh;” 27b, “Rav Ashi amar… i de-rabbanan.”
  3. Bava Metzia 27b; Raavad (Shitta Mekubbetzet), s.v. “Ve-zeh lashon ha-Raavad.”
  4. Rambam, Hilkhot Geirushin 3:11.
  5. Rambam, Hilkhot Gezeila Ve-aveida 13:1-5.
  1. What are distinctive marks (simanim muvhakim)?
  2. For what issue may we rely on non-distinctive marks?
  3. Is it feasible to rely on marks for biblical issues even if identifying marks are not of biblical origin?
  1. Identifying Marks and Returning a Lost Get
The passage on 27a deals with a lost get, and one of the ways to return a get to its rightful owner is the method which is utilized for returning all sorts of lost objects: identifying marks (simanim simanin; singular, siman).Just as one may return lost objects on the basis of identifying marks, it is possible to return the get based on simanim.
The Rambam (Hilkhot Gezeila Ve-aveida 13:4) writes: “At first, whenever a person who lost an item came and identified it by marks, it would be returned to him, unless he was known as a deceiver.”This means that one may return a lost object to someone who knows its marks.If so, one may return the get by the simanim on the body of the get.
However, Rav Ashi, in our passage, specifies that this mark must be a distinctive mark, such as a hole in the parchment next to a specific letter.Thus, Rav Ashi confirms the possibility of returning a get by simanim, but he adds a certain limitation: it is possible to return only based on identifying marks which are distinctive (muvhakim), because it is possible to rely on them on a biblical level.The Gemara notes that this is because of his doubt as to the status of non-distinctive simanim — are they valid on a biblical or rabbinical level?Therefore, one should not return a get based on them.
In order to understand this point, we have to consult the second chapter of Bava Metzia, in which the Gemara deals with laws of lost objects and their return.As we have said, one of the common techniques in this regard is returning via simanim, and this issue is dealt with at length.It turns out that there are three types of marks:
  1. Inferior marks — marks by which an item cannot be identified.  The classic example is the color of garments; this is insufficient to identify the lost object.
  2. Mediocre marks — which are common marks, and based on them it is possible to return lost objects.  The classic examples of these simanim are “an object’s measure, weight, its number or the place where it was lost” (Rambam op. cit. 13:5).[2]
  3. Distinctive marks — which constitutes a positive identification of the lost object, “a hole at the side of such-and-such letter” — if the document has a hole next to a certain letter, one may assume that this mark is unique.  Therefore, if one loses a get which has a hole next to letter X, and then he finds a get with the same mark, one may assume that this is the get which was lost.
The inevitable question arises: what is the difference between a distinctive (3) and a mediocre (2) siman? When it comes to simanim muvhakim, there is a consensus that even by Torah law, one may return an item based on them, while concerning a mediocre siman, the Gemara in Bava Metzia (27) has some doubt as to whether we return a lost object based on them by biblical law or only rabbinical institution.The ramification of this question, whether we may rely on mediocre marks rabbinically or biblically, is returning a get based on them: if mediocre simanim are biblically valid, one may rely on them to return even a get, which will allow this woman to marry anyone; if these simanim are valid only rabbinically, one may not return the get based on them.
What is the role of simanim in returning lost objects?
Simply put, the aim of simanim is to identify an object.This we may clearly establish based on the parallels between returning lost objects and other halakhic domains in which the law of simanim is applicable.One of them is crossbreeding, discussed in Chullin (79a-b):
This is what it means: it may be bred neither with any kind of horse nor any kind of donkey, because we do not know its species.  Why do we not check the simanin?  After all, Abbayei has stated: “If its voice is harsh, it is the offspring of a she-donkey; if its voice is shrill, it is the offspring of a mare…”  
R. Abba said to his servant, “When you harness the mules to my carriage see that they are very similar and then harness them.”  This shows that he is of the opinion that we do not take into consideration the seed of the father and that simanin are biblical.
Rashi explains this in the following way:
Simanin are biblical” — since we rely on simanin and permit what would otherwise be forbidden, this indicates that relying on simanin to return lost objects, as we say in the second chapter of Bava Metzia (27), is biblical.  If it were rabbinical, it would have been enough for the rabbis to have instituted this for monetary matters, but could they institute regarding prohibitions?  This indicates that they are biblical.  There, in the second chapter, we ask whether simanin are biblical or rabbinical.
Thus, the Gemara says that one may classify an animal as a horse or donkey by simanim, visual (or audible) markers.  It is understood that this identification has biblical ramifications, for the prohibition of crossbreeding donkeys and horses is biblical, and it must therefore be at a level which is sufficient biblically.  If it is valid to identify an animal according to simanim for the issue of the prohibition of crossbreeding, one may rely on simanim in every place to make a positive identification of an item. 
Rashi concludes based on this that simanim have validity on a biblical level in every place, and we end up learning that the aim of simanim is to identify the object conclusively.  However, the Ramban (ad loc.) disputes Rashi’s conclusion, proclaiming, “What does one have to do with the other?”  Even if we use simanin to settle questions of biblical import, the fact remains that concerning a lost object, we must be concerned that the person giving these signs is not in fact the rightful owner, but he either happened to notice them or is blindly guessing. 
The Ramban states that even though the law of crossbreeding requires a biblical level of clarification, one should not conclude from the passage which deals with it that simanim are biblical, because for the issue of returning lost objects, the simanim require one to deal not only with identifying the object but also with the possibility that the person claiming to be the owner is not in fact the owner.
To summarize, we have seen the possibility to return the get based on simanim, but only simanim muvhakim.  We have seen what simanim muvhakim might be, and we have dealt with the aim of the simanim generally.  Two aims ultimately may be seen: first, the identification of the object; second, to ascertain that the claimant is indeed the owner of the object, not a fraud who is merely trying his luck by guessing these marks.
A question in conclusion: what is more difficult — to return lost objects according to simanim or to come to a decision about laws of prohibition according to simanim?  We must give some thought, on the one hand, to the view of the Ramban in Chullin (who says that simanim are designed to prevent a problem of fraud), and on the other hand, to the ramifications of the possibility that simanim are rabbinical.
2.  Distinctive and Non-Distinctive Marks
From the Gemara on Gittin 27, it becomes clear that if simanim are from the Torah, one may rely on non-distinctive marks, and if the simanim are not biblical, one may rely only on simanim muvhakim.   This determination raises a question in terms of the nature of the distinction between simanim which are and simanim which are not muvhakim, because it is implied that even if simanim are not from the Torah, one may rely on simanim muvhakim.  What is the difference between simanim muvhakim and those which are not muvhakim?  Are both of them operating on the same plane, but simanim muvhakim are better simanim, or perhaps there is an essential distinction between simanim muvhakim and those which are not muvhakim?
Rashi in our passage (27b, s.v. Ve-davka) explains simanim muvhakim as follows: “This is a distinctive mark, for there is no clearer testimony than this.”  From Rashi’s words, it seems that simanim muvhakim are in another category, and it is possible to compare them to testimony, for this is a most absolute proof. 
On the other hand, there are Rishonim who believe that simanim muvhakim operate on the same plane on which regular simanim operate.  The Raavad analyzes the question of how we can rely on simanim muvhakim, as follows:
If simanin are rabbinical, I do not know from where we might derive this.  One might say that it is “‘It shall remain in your possession until your brother seeks it’ — until you seek your brother if he is a deceiver or is not a deceiver.”  Now we have the doubt as whether these simanin are distinctive marks or not.  For if they are distinctive and the Rabbis are the ones to institute a rule to return a lost object by a non-distinctive mark, a get would be excluded; but if they are not distinctive, even a woman’s get would be included, because it is biblical.
(Shitta Mekubbetzet, Bava Metzia 27b)
The Raavad wonders why we are so confident that one may rely on simanim muvhakim, and he responds that the “seeking” which the Mishna (Bava Metzia 28b) demands of the finder, which is derived from the verse “Until your brother seeks” (Devarim 22:2), relates certainly to an identification based on simanim, and the question is only as to which simanim they are talking about.  According to Rashi’s view, this question does not even arise, because simanim are equivalent to eyewitness testimony, and they do not require a specific derivation from the verse.  Between the lines, we may note that, according to the Raavad, there is no basic distinction between simanim muvhakim and simanim which are not muvhakim (at least at the level of the Gemara’s presumption).   
It turns out that we learn that there are two basic approaches to the distinction between simanim muvhakim and simanim which are not muvhakim.  According to one approach, there is a qualification distinction between them, while according to the other approach, essentially they are equal, separated only by degree.  Following the distinctions between these approaches, one may set out a number of ramifications:
1.  Understanding the question of whether simanim are biblical — if we follow the view of Raavad, there is no qualitative distinction between the types of simanim: the question is only what level of siman is required, then there is no essential question of our attitude towards simanim.  However, according to Rashi’s view, simanim muvhakim are in the category of evidence, so the question of whether simanim are biblical is an essential question: are we relying on testimony only — whatever may be considered a compelling and conclusive proof — or is it sufficient to clarify an item’s status based on markers that are less than unequivocal?     
2.  Returning a lost object to a deceiver.  In Hilkhot Gezeila Ve-aveida 13:3, the Rambam writes:
If the owner of the lost object comes and identifies it by marks that are not distinctive, it should not be returned to him until he identifies it by distinctive marks.
When a person is known as a deceiver, a lost article should not be returned to him even if he identifies it by distinctive marks.  Rather, he must bring witnesses who testify that the article is his.  Our Sages said: “‘It shall remain in your possession until your brother seeks it’ — until you seek your brother if he is a deceiver or is not a deceiver.”
The question about a deceiver’s lost object may also relate to the question which we have raised concerning the law of simanim muvhakim.  If they are like testimony, there is no reason not to return the lost object to a person who comes looking for it, even if he is a deceiver; just as it is clear that if two witnesses will testify that the object belongs to the deceiver, we will believe them, it is clear also that if simanim muvhakim are like testimony, there is no reason not to return the deceiver’s lost object by distinctive marks. 
On the other hand, if even simanim muvhakim are not testimony but only a level of clarification, then it is possible that this clarification is based on the credibility of the seeker of the lost object, not only on the logical probability of the object identified by marks being his lost object.  Therefore, it is impossible to return an object to a deceiver, because he does not have the basic element of credibility.
3.  Conflict between different proofs — the Gemara in Bava Metzia 28a discusses cases such as these, and it rules that, essentially, whoever brings the better proof gets the object.  What would the law be if one side cites simanim muvhakim while the second side cites non-distinctive marks?  It is possible that this question depends on this above-mentioned analysis: if simanim muvhakim are in the category of testimony, they will overwhelm the non-distinctive marks; however, if simanim muvhakim are on the same plane and in the same category as simanim which are not muvhakim — though the former do possess a certain advantage — it is possible that this minimal advantage will not allow them to overwhelm standard simanim.    
The Shitta Mekubbetzet (loc. cit.) addresses this question, noting that since a non-distinctive mark suffices to return a lost object by biblical law, there is no reason to discriminate.  He concludes that there is not any difference between distinctive and non-distinctive marks in this case, allowing one type to overcome the other, because essentially they stand on the same rung in the ladder of proofs. 
We have seen, concerning simanim muvhakim, that there is a consensus that this is effective even if identification by simanim in general is not of biblical origin.  We have debated whether this is only because they are simanim on a higher level, or perhaps there is an essential distinction between types of simanim, and simanim muvhakim are in the category of evidence and no longer in the category of standard simanim.  We have seen that this question has ramifications for a number of assorted issues which arise in terms of returning objects by simanim.
For next week:
Presumption of Life (28a), by Rav Yosef Zvi Rimon
  1. Gittin 28a, mishna to mishna.
  2. When do we rely on the presumption of life (chezkat chayim)?  Tosafot s.v. “Ve-hinicho;” Tosafot, Bava Metzia 39b, s.v. “Dilma.”
  3. Is there someone who believes that there is no presumption of life at all?  Tosafot s.v. “Ha Rabbi Meir;” Tosafot s.v. “Teruma;” Penei Yehoshua s.v. “Amar leih teruma” (until “Be-Kuntres Ha-kelali sheli”). 
  4. Chezkat chayim as opposed to chazaka of marriage: Tosafot, Ketubot 23a, s.v. “Tarvaihu” (in Gemara there, line 2, “Eid echad omer… bi-fnuya ka-mashadei”); Penei Yehoshua loc. cit. [the continuation, “Ve-khen mukhach le-hedya mei-ha de-amrinan;” Shaarei Yosher, Shaar Ha-chazakot, ch. 9, s.v. “Ve-nireh le-aniyut dati le-taretz,” until “heim be-din safek” (see also next paragraph)].
  5. “One hour before my death” — Tosafot s.v. Shanei [Shaarei Yosher, Shaar Ha-chazakot, ch. 9, s.v. “Garsinan,” “Amnam,” “Al kein Nireh le-aniuyt dati”].
  6. “We do not worry that he has died, we do worry that he will die” — Rabbeinu Crescas, s.v. “Shema yamut;” Tosafot, Kiddushin 45b, s.v. “Be-feirush,” from “U-maaseh ira;” Noda Bi-Yehuda (I YD 56), until “shema yekabbel bah aviha kiddushin.”
Our passage deals with the question of whether a person who is not before us is presumed to be alive.First of all, we must analyze the scope of this law (when one can rely on chezkat chayim); afterwards, we must inspect the nature of the law and the relationship between this presumption and other presumptions (chazakot; singular, chazaka) which conflict with it.In the end, we must investigate the application of the matter in our passage.In our passage, there is a contradiction brought between our mishna and a beraita, and the Gemara cites three resolutions for the contradiction. We must investigate each of them in terms of these principles.

[1] This shiur was given as a shiur kelali in the yeshiva.  Special thanks go to Dov Daniel, who took notes on the shiur and edited it for the Virtual Beit Midrash.
[2] In fact the Rambam calls these marks “simanim muvhakim,” but there is no need to be shocked by this formulation.  In the meantime, we will assume simply that his intent is to give those simanim on the basis of which we return a lost object, and for this issue, they are muvhakim, even though by objective standards, which we describe here, they are defined as “mediocre.”