Masechet Bava Metzia 6a-12b

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Pulling an Animal
30 Apr 2009
Torah

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 6a-b

The first Mishnah in Masechet Bava Metzia (2a) discusses the case of shnayim ochzin be-tallit – two claimants holding one end of a cloak, each claiming that it belongs to him. Our Gemara asks how we should treat the case if one of them is makdish (declares it sanctified to the Temple) what he claims belongs to him.

To examine this question, our Gemara tells the story of two people who each claimed ownership of a bathhouse.  One of the claimants announced that he was being makdish the bathhouse, a statement that led Rav Chananiah, Rav Oshaya and the rest of the Sages to refrain from entering it. This decision was not based on a definitive ruling, but was made because the Sages were unsure about the status of the bathhouse at this point. Rav Oshaya instructed Rabbah to pose the question to Rav Chisda in Kafri in order to receive a ruling on the matter. Upon reaching Sura, he met Rav Hamnuna who suggested that the question could be compared to a case of safek bechor (a situation where it is not clear whether an animal was firstborn and belonged to the kohen or not), where the animal cannot be used for any ordinary purposes. Rabbah rejected the comparison, arguing that we must distinguish between a safek bechor whose holiness is integral – it comes automatically when it is born – and our case where any holiness is imparted on it from its owner’s declaration.

The city of Kafri was situated in Bavel, about 20 kilometers south of Sura. It apparently contained an ancient Jewish community, since it was the seat of the Reish Galuta – the head of the Diaspora community – for a time. Most likely our story of the bathhouse took place in Pumbedita, which was where Rabbah lived, and on his way to Kafri, he first traveled through Sura where he met Rav Hamnuna.


Bava Metzia 7a-b

Up until this point in the discussion of how to rule when two people are both holding – and claiming ownership of – a single object, we have been dealing with things that can theoretically be divided between the two parties. Our Gemara brings a baraita that discusses a case where two people are holding onto a shetar – a legal document (in this case a promissory note) – where the lender claims that it is his and he had dropped the note and the borrower agrees that it had once been the lender’s but that now he had paid the debt and it belonged to him. The baraita quotes a disagreement in this case, with Rabbi Yehuda HaNasi ruling that the shetar should be examined by the courts to see if it is reliable and Rabban Shimon ben Gamliel arguing that the two people should divide the sum of money that is in doubt.

In reaction to the discussion that follows, Rabbi Elazar states that division would only make sense if they were both holding the tofes or the toref, but if one is holding the tofes and the other is holding the toref, each of them will be given the part that they are holding.

All legal documents are made up of two parts – the tofes, which is the standard language that applies in all cases, and the toref, which are the individualized parts of the documents, like the people’s names, and so forth. The word tofes stems from a Greek term meaning “stamp” or anything that is made using a single mold that is used over and over again. Sometimes the word matbe’a is used, which has a similar meaning. The word toref also likely has it roots in Greek, from a term meaning something that changes or is unstable. Aside from names and dates, the toref can also include special conditions that are applied to this particular situation or business deal.


Bava Metzia 8a-b

Aside from the cases described in the first Mishnah (2a) where two people were both holding a cloak and claiming ownership, the Mishnah also describes other situations in which ownership claims are made. If two people are riding an animal, for example, or if one was riding and one was leading the animal, the Mishnah rules that we will treat their claims of ownership the same way we treat people who are each holding an object.

The ruling of the Mishnah notwithstanding, Rav Yosef quotes Rav Yehuda as having a tradition from Mar Shmuel that in a case where one person is riding the animal and another leading the animal only one of them can claim ownership – unfortunately he did not remember which one it was. Does the rider have a stronger claim because he is holding the animal, or does the leader have a stronger claim because the animal is directed by his actions? Ultimately Rav Yehuda suggested to Rav Yosef that they can clarify this question based on a Mishnah in Masechet Kilayim (8:3), where according to Shmuel’s reading of the Mishnah, if two animals that cannot be harnessed together for work are pulling a cart, only the person leading the animals will be held liable; the person sitting in the cart will not. Thus we can conclude that Shmuel’s position is that someone riding an animal cannot claim ownership – certainly not when someone else is leading the animal.

The obvious question that is raised by the rishonim is that our Mishnah comes to a clear conclusion that offers credence to the claims of the rider, as well – how can the amoraim Shmuel, Rav Yosef and Rav Yehuda suggest otherwise?

One suggestion that is raised is that Rav Yehuda is examining different kinds of “riding.” Will the Mishnah’s ruling be true only if the rider is actively driving the animal, or even if he is passively riding on it? The Ran suggests that we cannot reach any conclusions from the Mishnah where the case is that the rider claims to have already taken possession of the animal before he began to ride it.


Bava Metzia 9a-b

The Gemara on today’s daf continues the discussion of riding and leading animals, and whether either (or both) of those activities will support the claim that the person owns the animal.

The Gemara quotes a baraita where we learn that two people pulling (moshchim) a camel or directing (manhigim) a donkey can claim that they own the animal. Similarly, if one was pulling and the other directing, their claims would be accepted. Rabbi Yehuda disagrees, arguing that for a camel only meshichah will be significant while for a donkey only manhigah would be significant.

From this discussion the Gemara suggests that we can conclude that riding the animal will not be significant in either case, since the possibility of riding is not raised at all. In response the Gemara says that the situations that appear in the baraita may only be those in which there is a disagreement between the Tanna Kamma and Rabbi Yehuda, but in a case where all agree – i.e. if the person is riding the animal – there is no need to mention it in the baraita at all.

The difference between manhigim – directing a donkey – and moshchim – pulling a camel – stems from the animals’ respective temperament and nature as well as from the way these animals were trained. A donkey is “directed” in the sense the donkey walks ahead, leaving the person in charge (the chamar) walking behind the animal, holding a stick with which he directs the animal. This would not work with a camel, so the common practice was to muzzle the animal and have the person in charge (the gamal) walking in front and pulling the animal which follows him. The difference in the way each of these animals was treated was so stark, that an expression used by the Sages to indicate an internal contradiction was hamar-gamal, meaning a person who must play two contradictory roles simultaneously.


Bava Metzia 10a-b

One of the themes that is discussed on today’s daf is ein shaliach le-davar aveira – literally, that a person cannot be made an agent to sin – i.e. that a person must take responsibility for his own actions, and cannot blame another person for having told him to perform a forbidden act.

According to the Gemara in Kiddushin (42b) the underlying principle of ein shaliach le-davar aveira is based on the fact that the messenger’s true obligation is to follow the directions of God, not of another person – divrei ha-rav v’divrei ha-talmid, divrei me shom’im!

The Talmud Yerushalmi presents a discussion on this point as to whether the concept of shelichut – of making someone your agent to act on your behalf – is true in all cases, and certain situations – like this one – are exceptions, or if we would ordinarily assume that a person cannot pass on responsibilities to another, and we need a special source in order to permit shelichut to work. This discussion impacts on the question of a shaliach le-dvar aveira since according to the first approach we need to explain why shelichut will not work in the case of a forbidden activity; according to the second approach it is obvious that we will not allow the creation of shelichut to do something forbidden.

Tosafot Ri”d argues that the Gemara does not mean to suggest that we would have thought that the messenger could have freed himself from responsibility for performing a forbidden act with the argument that he was only following orders. It is clear to us that an intelligent person must take responsibility for what he does. The discussion on this matter was solely to clarify whether the person who instructed the messenger should also be held accountable, since he was the one who instigated the action.


Bava Metzia 11a-b

The Mishnah on our daf, as well as the Mishnah that preceded it (10a) focus on how a person might take possession of an object that he finds by taking hold of it himself or by claiming it as being on his property. The case in our Mishnah describes how a person who sees people running after an ownerless animal to claim it can say “my field takes possession of the animal on my behalf” – assuming, of course, that the animal is on his property. According to the Mishnah, if the animal cannot move, e.g. if there is a deer with a broken leg or if there are young birds that do not yet fly, then the individual’s property can take possession for him. If, however, the deer was running normally or the birds were flying, then his statement has no significance.

According to Tosafot, in order to take possession of the animal, the owner of the field would not even need to say “my field takes possession of the animal on my behalf” – if conditions allow the owner to claim the animal it will work automatically. The Mishnah only includes this statement in order to emphasize that in cases where conditions would not allow him to claim the animal, even making such a statement would not help him. The Rosh suggests that he needs to make the statement in order to keep the people who are chasing the animal from taking hold of something that he has already laid claim to.

The Bet Yosef disagrees, ruling that the owner of the field must make a public claim to the animal, even if it is in his field. While it is true that the Sages established a rule that dalet amot koneh – that the four cubits that surround a person take possession of things on behalf of the person – even without his laying a claim to them, that is a unique enactment made in order to avoid disagreements. Such an enactment was never applied to the person’s field, however.


Bava Metzia 12a-b

While the previous two Mishnayot dealt with how a person can claim an object by taking possession of it himself or by having his field take possession on his behalf, the Mishnah on today’s daf discusses how a person can come to own something through the efforts of family members.

According to the Mishnah, if an ownerless object is picked up by someone’s underage children, his non-Jewish slaves or his wife, it belongs to him. If, however, the children were adults, the slaves were Jewish or if he and his wife were in the midst of divorce proceedings, then the object would belong to the finder.

Two of these cases are fairly straightforward. Whatever a non-Jewish slave finds belongs to the owner, because halacha perceives such a slave as being fully owned by the master, as opposed to a Jewish slave who is really a long-term contractual worker. A man’s wife is supposed to turn over to her husband things that she finds because of a rabbinic ordinance that suggests this arrangement in order to minimize potential friction between the couple. Once she has received a divorce – even a questionable one – the relationship has ended and the sages are no longer concerned with their relationship.

The case of children turning over things that they find to their father is more complicated. Rabbi Chiya bar Aba quotes Rabbi Yochanan as teaching that the terms used in the Mishnah – ketanim and gedolim – cannot be translated as “underage” and “adult” in this context, rather ketanim means that they are still being supported by their father and eat as his table, while gedolim means that they are no longer being supported by their father, having left his home. As far as sons are concerned, the source for this is a rabbinic enactment aimed at limiting friction in the home. With regard to daughters, some suggest that the rule is the same, while Rashi and the Rambam believe that this is a biblical law, based on the passage in Bamidbar (30:17).


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.