The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Metzia 20a-b
Our Gemara introduces a ruling made by the amora Shmuel, that if someone who lends money to another person then sells the promissory note to a third party, he still retains the right to forgive the loan. Although the Gemara concludes that the individual who purchased the note – and, presumably the obligation – can return to the seller and demand a refund, nevertheless this ruling demands an explanation.
Several approaches are put forward by the rishonim and commentaries. According to the Rambam, the entire concept of selling the note is a rabbinic enactment, so the true biblical obligation remains in the hands of the original lender, who therefore retains the right to announce that he forgives the loan. Once the biblical obligation is removed, the purchaser has no claim to collect. The Ra’avad offers a different approach, arguing that the borrower has no obligation to the man who purchased the note; his sole obligation is to pay back the person who lent him the money, no matter who is holding the note. Thus, if the original agreement clearly stated that the borrower would pay back the lender or anyone else who the lender appoints or transfers the loan to, the lender would not be able to forgive payment. The Sefer Hashlamah takes the Ra’avad’s approach one step further and says that even if the lender did not forgive the loan, the person who purchased the note would not be able to collect the loan directly, rather he can only ask the lender to demand payment on his behalf.
As noted, the Gemara concludes that if the lender forgives the loan, the individual who purchased the note can return to him and demand a refund. In such a case, the rishonim disagree as to whether the lender will be obligated to pay the entire value of the loan or if he will only have to refund the money that was paid for the note.
Bava Metzia 21a-b
Returning lost objects is a topic covered in some detail in the Torah (see Shemot 23:4-5, Devarim 22:1-4), but the Torah does not discuss a situation when the owner of the lost object cannot be located easily. What rights and responsibilities does the finder have with regard to the object? When might he be able to claim it as his own? These are the issues discussed in Perek Elu Metziot, the second perek of Masechet Bava Metzia, which begins on today’s daf.
The first Mishnah in the perek opens with a list of lost objects that belong to the finder and a list of lost objects that must be announced in an attempt to locate the owner. The general principle is clear. Those objects that have a siman – some identifying mark that will allow the object to be claimed by its rightful owner – must be announced. Things that do not have identifying marks can be claimed by the individual who found them.
The Ritva points out that the Mishnah does not distinguish between objects that must be announced and those that do not need to be announced, rather it clearly states that some lost objects belong to the finder. By doing so the Mishnah teaches that even if the original owner brings witnesses who testify that the object belonged to him and that he lost it, nevertheless the finder keeps it if it does not have identifying marks. The reason for this ruling is explained by Rabbeinu Chananel – although yei’ush (literally “despair,” i.e. when the owner of an object gives up hope of recovering it) on its own may not allow an object to transfer from one owner to another in all cases, when an object is lost, all agree that yei’ush will allow that transfer to take place – and we always assume that there is yei’ush on an object with no siman.
Bava Metzia 22a-b
Of all the Amoraim, Abayye and Rava are presented as epitomizing the discussions that take place in the Gemara. In all of their arguments in the Gemara, the halacha always follows Rava’s opinion, with only six exceptions. Those six are referred to by the Gemara by the acronym – YAL KGM:
- Ye’ush shelo me-da’at (on our page) – when a person does not realize that he has lost an object until after it is picked up by someone else, and he gives up ownership when he realizes it, can we apply it retroactively?
- Ade zomem lemafrei hu nifsal – (Bava Kamma 73a) when witnesses are found to be unreliable, does their status change as of that time or from the time that their false testimony was made?
- Lehi ha-omed me-elav (Eruvin 15a) – when a pole is standing on its own (it was not placed there by a person), can it be used as part of the structure that will create a legal private domain on Shabbat for the purpose of carrying?
- Kiddushin she-lo nimseru le-bi’ah (Kiddushin 51a) – if a couple gets married, but will be unable to consummate their marriage, does it have legal significance?
- Gilui da’at be-gittin (Gittin 34a) if a person makes a statement that can be understood as affecting the divorce that has been sent to his wife, must we take it into consideration when ruling on the validity of the divorce?
- Mumar la’avor aveira le-hakh’is (Sanhedrin 27a) – Can a person who commits sins be trusted to testify in court?
The disagreements between Abayye and Rava are amongst the most important in the Gemara, to the extent that deep, significant Talmudic discussions are called havayot d’Abayye ve-Rava. Although it is difficult to discern two clear distinctive approaches, generally speaking we find that Abayye was more formalistic, while Rava is more open and his opinions are based more on logical thinking
Bava Metzia 23a-b
As we noted in the Mishnah (daf 21a) lost objects that have a siman – some identifying mark that will allow the object to be claimed by its rightful owner – must be announced and returned. Things that do not have identifying marks can be claimed by the individual who found them. Our Gemara works at determining what might be considered a siman. Would the weight of an object be a siman? How about its placement?
In an attempt to clarify some of these questions, the Gemara points out an apparent contradiction between two statements of tanna’im. In the first, a baraita teaches that someone who finds chaviyot – barrels – of wine, oil, grain, olives, etc. can keep them. Our Mishnah, however, rules that jugs of wine and of oil that are found must be announced and returned. In response to this seeming inconsistency, Rabbi Zeira quotes Rav as saying that the Mishnah must be talking about a case where there is a siman, specifically that the jugs were rashum – they were sealed.
A chavit was a large earthenware utensil that was used to hold a variety or things – usually liquids, and most often wine. It was closed with a megufah, a type of plug or stopper that was made from clay. The megufah could not fully seal the opening of the chavit, which was made to be opened and closed easily. In order to close the chavit totally, it was customary to seal the stopper with soft clay or mud – an activity referred to as roshmim. It was not unusual for the owner of the chavit to place a sign or signature in this clay. Thus, as opposed to the havit itself, which was a commercial, standardized object, the rishum was a unique signature, done by every person differently.
Bava Metzia 24a-b
As we have learned, when someone loses an object and it has no siman on it – no distinguishing mark that the owner would be able to identify – we assume that there is yei’ush (literally “despair,” i.e. that the owner of an object gives up hope of recovering it) and the finder would be allowed to keep it. On our daf we learn that there are situations where a person will have yei’ush and despair of recovering his property, even if there is a siman on it. Rabbi Shimon ben Elazar teachers that in a case where a person saves something from the hands of a wild animal like a lion, a bear, a tiger, etc. or if he saves it from the ocean or from a flowing river, the finder can keep the object because the owner gives up any hope of recovery.
The Gemara tells a number of stories that support and clarify this ruling. In one of them we learn about a dayo – a type of bird – which stole a piece of meat from the meat market and threw it among the palm trees on someone’s property. The finder went to Abayye to ask what he was obligated to do with this meat, and Abayye ruled that he could keep it. In explaining Abayye’s ruling the Gemara argues that being taken by the dayo would be considered like something lost at sea, where we can assume yei’ush by the owner.
The dayo of our story is identified as the milvus migrans – the Black Kite – a bird of prey that is found throughout the world. These birds eat small animals and carrion. They often live in close proximity to cities and are even found in densely populated areas, where they are daring enough to swoop down and take meat from humans, whether it is offered to them or not.
One other issue dealt with by this Gemara is why the meat is considered to be kosher, given that we lost sight of it and the bird may have taken it from anywhere. The Gemara concludes that someone would have had to have watched it from the time it was taken until the time it was dropped if it is to be considered kosher.
Bava Metzia 25a-b
As we learned in the first Mishnah in our perek on daf 21a, lost objects that have a siman – some identifying mark that will allow the object to be claimed by its rightful owner – must be announced and returned. Things that do not have identifying marks can be claimed by the individual who found them. The Mishnah on our daf discusses objects that cannot have a siman on them, e.g. fruits or coins, and whether a siman can be created for them by collecting them in a bag or by placing them in a certain pattern. For example, the Mishnah teaches that three coins placed one upon another can be considered a siman, and if they are found placed that way they must be announced and returned.
Our Gemara introduces the teaching of Rabbi Yitzhak Migdalah (the Maharatz Hiyot suggest that his name derives from this halakhah that he taught) who teaches that this ruling is true only if they are set up as a migdal – a tower. If they are found assembled in some other way, it would not be considered a siman. Among the possible arrangements of coins that the Gemara investigates – without reaching a clear conclusion – are:
- ke-shir – like a necklace
- ke-shurah – in a straight line
- ke-hatzubah – in a triangle
- ke-sulam – like a ladder
Rav Ashi raises one further situation – ke-avnei bet kulis – and the Gemara concludes that such a case would need to be announced and returned.
Avnei bet kulis are three coins that are set up so that the two coins on the bottom support a third coin that rests on top of them.
Bet kulis was one of the offshoots of the Roman god Mercurius, which was considered the god of trade and commerce. There was a common practice to set up icons on the roads in his honor, and the accepted manner of worship was for the traveler to add a rock to the pile that was placed there in his honor. The first stones, which invited other passer-bys to add to the pile, were set up in this pattern, which is why the pattern is called avnei bet kulis.
Bava Metzia 26a-b
Since the beginning of Masechet Bava Metzia we have been discussing fulfillment of the positive commandment to return lost objects. What if the finder did not return the object? What commandments has he transgressed?
Rava teaches that if someone sees another person drop a coin, and he picks it up before the owner despaired of recovering it and intended to keep it for himself, he has transgressed three separate commandments:
- Lo tigzol – do not steal (see Vayikra 19:13)
- Hashev teshivem – return the lost object (see Devarim 22:2)
- Lo tukhal lehitalem – you must not ignore the lost object ((Devarim 22:4)
Furthermore, according to the reading in our Gemara, even if the finder then changed his mind after yei’ush – after the owner despaired of recovering the coin – and returned it to its owner, he is simply giving a present to the individual who lost the coin; he cannot erase his transgressions.
Although this last sentence appears in most versions of the Gemara, many of the rishonim claim that it is a later addition that was included in the Gemara, and was inserted as an explanatory comment by Rav Yehuda’ei Gaon. The problem that is raised with this ruling is that we ordinarily see gezel – stealing – as a lav ha-nitak la’aseh – a negative commandment that is offset by a positive commandment. Since the Torah (Vayikra 5:20-23) juxtaposes stealing with returning, it is understood that the sin of stealing can be removed by fulfilling the mitzvah of returning the stolen object. This problem was so vexing to many of the rishonim that the Ra’avad and others erased this line from their Gemarot.
There are explanations offered to explain why even returning the stolen object would not remove the transgression in this case. The Radbaz, for example suggests that in the case of a stolen object, the mitzvah of returning it – and erasing the sin of stealing – remains forever. The commandment to return a lost object, however, remains in force only until the original owner despairs of getting it back. Once the original owner despairs, there is no longer any mitzvah of returning the object, and the opportunity to remove the transgression disappears with it.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.