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Bava Metzia, 21


QUESTION: Rava and Abaye argue whether "Yi'ush she'Lo mi'Da'as" is considered Yi'ush or not -- that is, whether a person may keep for himself an object that he found before the owner realizes that he lost it. If the object was lost by being swept away by the sea or by the river, then it certainly is permissible to keep it even before the owner knows about the loss, for the verse itself permits it as the Beraisa later (22b) explains. Rather, the argument applies to an object that has no Siman, and which was lost in a normal manner. Abaye says that it is not considered Yi'ush since the owner does not yet know that he lost it. Rava says that since the owner will eventually have Yi'ush, we consider there to be Yi'ush from now.

The Gemara attempts to prove the opinion of Rava from our Mishnah which states that a person who finds money scattered on the ground may keep it, even though he cannot prove that the owner knew that he lost it before the the finder picked it up. The Gemara answers that the finder may indeed assume that the owner knew about the loss immediately because of the principle of Rebbi Yitzchak, who asserts that a person constantly checks his pockets for his money.

The principle of Rebbi Yitzchak teaches only that the owner realizes that the object was lost. It does not teach that the owner gave up hope, with Yi'ush, of ever getting his item back. How, then, can we assume that the one who lost the coins was Me'ya'esh as soon as he found out about the loss? We cannot answer that we are certain that the owner is Me'ya'esh since it has no Siman and he cannot possibly reclaim it, because what, then, is the difference between an object without a Siman and any object with a Siman that is swept away by the sea? Why is it that the Torah permits keeping objects that are swept away by the sea? It is clear from many Rishonim that the object is permitted because we may assume that the owner certainly gave up hope (see RASHI to Bava Kama 66a, DH Motzei; RAMBAM, Hilchos Gezeilah v'Aveidah 11:10; and RITVA 26b. The Rambam there explains that the Halachah of an object swept away by the sea is a law in Yi'ush. The RAMBAN (Milchamos to 22b) also explains like this, and he cites RABEINU CHANANEL who says this as well.)

This is what the Gemara means when it says that the object is "lost to all mankind." The Beraisa means that if it is possible that another person might find the object, the owner does not give up all hope, because he conceivably might convince the finder that the item is his, even without a Siman. However, if no person will find the object, then the owner cannot possibly have hope of ever reclaiming it. Since the owner must certainly give up hope when his item was swept away by the sea, we can assume that even if he is yelling that he does not give up hope, or he is running after his item, he does not really mean what he says, and his intentions (Devarim she'b'Lev) override his actions and words, because we are certain (with an "Umdena") of his intentions. (See Ritva in Kesuvos 3a.)

For the same reason, Abaye agrees that an object that is swept away by the sea is permitted even before the owner discovers his loss. Abaye agrees to Rava that if we are certain of what the person's decision and intention will be when he finds out about the loss, then we may act as if the person already found out about it and proclaimed his Yi'ush. Why, then, does Abaye disagree with Rava when an object without a Siman is lost? Apparently it is *not* absolutely clear that the owner will give up hope. In fact, if the finder sees that the owner clearly did not give up hope after losing an object without a Siman, he is not permitted to keep it, as the Gemara says later (on 26b). (This is also implicit in the words of the Beraisa which states that only when an object is lost to all of mankind do we assume that the owner certainly had Yi'ush.) Why, then, should we assume that the coin is permitted and the owner was Me'ya'esh, if we know that the owner realizes that he lost the coin?

(Although the RASHBA (21b) explains the Halachah of an object swept away by the sea differently and says that such an object is permitted because the Torah gives it a status of Hefker, and not just because of Yi'ush, nevertheless, the Rashba also will explain that the reason the Torah gives it a status of Hefker is because it is a type of object that a person normally despairs of ever retrieving. Because of that the Torah says that even if he is not Me'ya'esh, the person's Da'as is disregarded ("Batel Da'ato Etzel Kol Adam"), and it is considered as though he made it Hefker. The Torah makes it Hefker only because it is something for which a person is certainly Me'ya'esh and gives up hope of retrieving. The Torah does not give that status to a lost item that has no Siman, so, obviously, such an item's status of Hefker is not something that is so certain. Hence, the question remains: why is person allowed to keep it when it has no Siman?)

ANSWER: The reason a person may keep for himself an item that he finds that has no Siman when it is not known whether the owner knows about it is because we assume that the owner was Me'ya'esh based on a Rov -- most people are Me'ya'esh when they lose something that has no Siman, and therefore we do not have to suspect that the one who lost it is part of the Mi'ut, the minority. The problem with this, however, is that we rule that "Ein Holchin b'Mamon Achar ha'Rov" -- we do not follow Rov in monetary matters (like Shmuel rules in Bava Kama 26b), and thus why should we follow the Rov here in order to let the finder keep the Aveidah?

The answer to this is that TOSFOS (23a, and in Bava Basra 23b) explains that we apply "Ein Holchin b'Mamon Achar ha'Rov" because the Chazakah that a person is holding on to an object is stronger than a Rov. The fact that a person is holding on to an object ("Chezkas Mamon") is a greater proof that it belongs to him than the proof of a Rov. In the case of an Aveidah, though, the object is not in anyone else's hands. Therefore, when the person who finds it picks up the Aveidah and has it in his hands, and the person who lost it is not holding it now in his hands, a Rov tells us that the owner was probably Me'ya'esh and thus the finder should be able to keep it, and there is no Chazakah countering that Rov.

This may give us insight into the argument between Rava and Abaye. Abaye agrees in one case that we say that if a person's intention can be surmised then we can assume that that is his intention even before the owner knows that the Aveidah is lost. That case is a case of an item swept away by the sea, where we know with absolute clarity (an "Umdena") that the person would be Me'ya'esh. We know it with such certainty that even if the person would stand and proclaim that he is not Me'ya'esh, we would say that he certainly is malingering and the truth is that he is Me'ya'esh. Rava, on the other hand, holds that even when we have a Rov that tells us that the person probably will be Me'ya'esh when he finds out about the loss, we can assume, based on that Rov, that the person is already Me'ya'esh even before he actually finds out about the loss. Just as the Rov tell us that we can assume that he will be Me'ya'esh, the Rov is able to make it as if he was already Me'ya'esh even though he did not yet think about being Me'ya'esh. Abaye says that "Yi'ush she'Lo mi'Da'as" is not Yi'ush, because the Rov can only tells us what he already did, but if he did not think it yet, the Rov cannot make what he did not think as if he already thought it -- only an "Umdena" can do that.

This answers the question of the RA'AVAD. The Ra'avad asks why is the subject of "Yi'ush she'Lo Mi'Da'as" not related to the subject of "Bereirah?" "Bereirah" refers to when a person makes a Kinyan dependant on a future event. If we rule "Ein Bereirah," then the Kinyan cannot take effect, since the future event is not known at the time of the Kinyan; we do not say that what happens in the future can clarify retroactively whether this Kinyan took place. The opinion that says "Yesh Bereirah" maintains that we can retroactively clarify whether the Kinyan took place. The same, then, should apply with "Yi'ush she'Lo mi'Da'as!" If we rule "Ein Bereirah," then the Yi'ush should not take effect, and if we rule "Yesh Bereirah," then it should take effect!

The answer might be that even if we rule "Ein Bereirah," that means only that an event that did not yet take place cannot be retroactively shown to have been destined to take place, since the event did not yet occur at the time that the Kinyan was made. With regard to Yi'ush, though, the very fact that a person will most likely be Me'ya'esh takes the place -- and accomplishes the function -- of the actual Yi'ush. According to Rava, it is similar to an "Umdena" whereby we say that the fact that a person will probably say something makes it as if he has already said it. This cannot apply to any future events that have not yet occurred, other than a person's future decisions which are known based on a Rov.

If we rule "Yesh Bereirah," then why should it not be obvious that "Yi'ush she'Lo mi'Da'as" is considered Yi'ush?

We can answer this, too, based on what we have said above. Bereirah can effect a Kinyan only when the Kinyan is made with a clear stipulation that it should be dependant on the future event. If the Kinyan is not made with such a stipulation, then why should the future event change what was done in the past? (See TOSFOS in Bechoros 56b, DH Livror, and in Temurah 30a, DH v'Idach.) In the case of "Yi'ush she'Lo mi'Da'as," the owner certainly does not stipulate at any point that the status of the object should depend on whether he is Me'ya'esh in the future. Therefore, there is no reason to compare this to Bereirah. On the other hand, Rava's argument is that the fact that most people are Me'ya'esh should make it as if the one who lost the item was actually Me'ya'esh at the moment that he lost the object.

QUESTION: The Gemara says that after the "Nemushos" (the last group of poor people) pass through the fields collecting Leket, all of the other poor people are Me'ya'esh from anything that might be left in the field, and therefore anyone else may take whatever is left from the Leket, even if he is not poor. Poor people from other cities are Me'ya'esh from the Leket in this city from the start, because they assume that the poor people of this city will collect it all and leave nothing. REBBI AKIVA EIGER (in Gilyon ha'Shas, Derush v'Chidush, and Tosfos Rebbi Akiva Eiger on the Mishnayos) asks why should the Leket be permitted to take because poor people in other cities are Me'ya'esh from the Leket in this city? There are poor Ketanim, minors, in neighboring cities who also are entitled to collect the Leket. The Gemara (22b; see Tosfos there, DH d'Lav) explains that the Yi'ush of a Katan does not make an item Hefker to permit a finder to keep an item that he loses, because it is considered "Yi'ush she'Lo mi'Da'as" until he becomes an adult.

How, then, can the "Yi'ush" of poor Ketanim from other cities permit people to take the Leket?


(a) The SHA'AREI YOSHER (5:19) and DIBROS MOSHE (31:8) explain that the Gemara in Chulin (134b) tells us about a landowner who lived in a city that had no poor people to collect the Leket from his field. He asked Rav Sheshes what to do, and Rav Sheshes told him that he may take the Leket himself, because the verse states that Leket is to be left "le'Ani v'la'Ger" (Vayikra 19:10), for the poor person and the stranger, and not for animals of the wild. It seems from the Gemara that the reason it is permitted for people to take Leket when poor people do not claim it is because of a special allowance in the verse. Consequently, it is not necessary for the poor people to be Me'ya'esh in order to permit others to take the Leket. Rather, as soon as no poor people claim it, the Torah permits anyone to take it. The RAMBAM (Hilchos Matnos Aniyim 1:10) -- when he cites the Mishnah quoted in our Gemara which permits people to take Leket after the last wave of poor people -- prefaces this Halachah with the teaching of the Gemara in Chulin that the Torah does not want people to leave Leket for the wild animals to take. This implies that our Gemara is not relying on Yi'ush to permit Leket to others, and thus the fact that there are poor minors in other cities presents no problem, since they are not claiming the Leket. The Acharonim explain that according to the Rambam, this is the intention of our Gemara as well. The Gemara does not mean to say that Leket is permitted because poor people in other cities are Me'ya'esh, but rather it is permitted because those poor people are not collecting it and, therefore, the Torah permits people who are not poor to take Leket which is not being collected.

However, from the words of the Rambam it seems evident that the Gemara in Chulin and our Gemara are addressing two different aspects of Leket that is forsaken by aniyim. The Rambam explains that the Derashah in Chulin is not addressing the monetary issue involved in stealing from Aniyim. Rather, it is discussing the issue of Isur v'Heter. Is Ma'aser Ani similar to Terumah which is, first, not permitted to those who are not Kohanim and, second, must be delivered to Kohanim by the owner. The Gemara in Chulin proves from the verse that Leket is not prohibited to those who are not Aniyim, and that there is no Mitzvah to deliver the Leket to Aniyim. Therefore, if they do not come and take it, the owner is permitted to take it.

Our Gemara is addressing a different issue. Even if there is no Isur involved, the Leket is "Mamon Aniyim" -- it belongs to the poor people in the world. What permits a rich person to take it when poor people are not interested in taking it? The Gemara answers that poor people are Mafkir it, or Me'ya'esh from it. Hence, Rebbi Akiva Eiger's question returns: since the poor minors are not able to be Mafkir or Me'ya'esh from their portion of the Leket, why should it be permitted for others to take it without compensating the poor people?

(b) Perhaps there is a difference between Yi'ush on an object that is privately owned, and Yi'ush on Matnos Aniyim. The Yi'ush of a minor cannot permit his object to be taken by others, just as the minor cannot make any Kinyan because he has no Da'as. Matnos Aniyim, however, do not belong to the minor. Rather, they are the collective property of the general group known as Aniyim, poor people. This is not the same as a partnership, in which many people own one object, because the Matnos Aniyim can be given to any single poor person without compensating the others. We must view Matnos Aniyim as property which can *potentially* be given to any member of the group of the poor of Yisrael, but not the personal property of any one of them (yet). Hence, the minor Aniyim do not yet own this Leket, such that it should be necessary for them to give it away through Yi'ush or Hefker. Rather, they simply have to remove themselves from the group of Aniyei Yisrael who are candidates to receive this Matanah. The Yi'ush, even of minors, is able to remove themselves from this group of candidates; since they do not expect to receive it, they will not present themselves as candidates. That is why even Yi'ush of minors can permit others to take the Leket. (M. Kornfeld)

QUESTION: The Gemara teaches that after the "Nemushos" (the last group of poor people) pass through the fields collecting Leket, "any person" is permitted to take Leket. Why should the Leket not be acquired automatically by the owner of the field, through Kinyan Chatzer, as we find earlier (12a) that a person's Chatzer is Koneh an item for him "she'Lo mi'Da'ato," even when he does not know about it? (TOSFOS REBBI AKIVA EIGER, Pe'ah 8:1)

Perhaps the Mishnah is discussing a Chatzer she'Einah Mishtameres -- an unprotected field -- and thus when the owner is not standing near it and does not have intention to be Koneh with it, it cannot be Koneh for him, as the Gemara earlier (12a) explains. (In our case, there is a good chance that the Chatzer is not Mishtameres, because the owner must leave the gates open to allow the poor people to enter and collect the Leket.)

Rebbi Akiva Eiger asks, though, that if this is correct, the Gemara earlier should have cited the Mishnah in Pe'ah as proof that a Chatzer she'Einah Mishtameres is Koneh for a person "she'Lo mi'Da'ato!" The Gemara discusses at length the question of whether such a Chatzer is Koneh for a person "she'lo mi'Da'ato," but it does not cite this Mishnah as support.


(a) The D'VAR AVRAHAM (1:13, in footnote there) writes that perhaps the Gemara does not cite the Mishnah as proof that a Chatzer she'Einah Mishtameres is not Koneh, because the Mishnah perhaps does not mean that every person may take the Leket, but rather it means that the *owner* is indeed Koneh the Leket through Kinyan Chatzer. Why, then, does the Mishnah state that "Kol Adam," any person, is permitted to take it? It means that if the owner wants, he may acquire it for himself, and if he is not interested in acquiring it for himself, then anyone else may take it.

(b) According to TOSFOS (26a, DH d'Shasich), a simple answer may be suggested. Tosfos writes that when one is not aware of the object in one's Chatzer, one's Chatzer cannot be Koneh for him any object that the owner might never find, even if it is a Chatzer Mishtameres (see Insights to 26b). Accordingly, the Leket which remains after all of the groups of poor people have combed the field has a good chance of not being found by anyone, and never being found by the owner, and therefore the Chatzer will not be Koneh it for him.

QUESTION: The Gemara cites a proof for Abaye's view from a Mishnah which states that if a person finds figs underneath a fig tree that is standing in a private yard but which leans over the public road, he may take them, but he may not take olives or carobs from underneath a private olive or carob tree. The Gemara says that this proves Abaye's opinion: fig trees often shed their figs and therefore it is considered "Yi'ush mi'Da'as" since the owner realizes that the figs will fall and he expects people to take them thinking that they were dropped by a passer-by. In contrast, olives and carobs normally do not fall off of trees, and therefore it is "Yi'ush she'Lo mi'Da'as."

Rav Papa answers that the Mishnah can also be understood according to the opinion of Rava, as follows. A passer-by normally assumes that any fruit found under a tree that overhangs the public road fell from that tree, and not from other passers-by. Therefore, the owner of an olive or carob tree is not Me'ya'esh from what falls from his tree and lands under it (it is similar to a "Davar she'Yesh Bo Siman," a lost object that has a Siman, in which case we do not call it "Yi'ush she'Lo mi'Da'as"). However, when a person's figs fall from the tree, they become disgusting; the owner is not interested in them anymore and, therefore, he is Mafkir whatever falls. RASHI (DH Im Nefilasah) writes that the Gemara means that since figs become disgusting when they fall, the owner is Mafkir them, and since the owner knows that they are going to fall he is Me'ya'esh from them and Mafkir them from the start.

This answer of the Gemara was given to explain Rava's opinion. Rava holds that "Yi'ush she'Lo mi'Da'as" *is* considered Yi'ush. Therefore, even if the owner did *not* expect the figs to fall, since he would have been Me'ya'esh had he known that the figs fell, they should be permitted now! Why, then, does Rashi comment on this answer of the Gemara that the owner knew from the start that the figs would fall and therefore he was Me'ya'esh from them as soon as they fell? It is not necessary to say this according to Rava! (MAHARAM SHIF, LECHEM MISHNAH in Hilchos Gezeilah v'Aveidah 15:15)

ANSWER: Perhaps Rashi's intention is to teach us that this answer of the Gemara is not given exclusively according to Rava. Once the Gemara gives this answer, it has retracted its original understanding of the Beraisa, and the Gemara is now explaining that even Abaye will agree that the difference between figs and carobs is not that figs fall more often that carobs. Both fruits tend to fall. Rather, since figs become disgusting when they fall, the owner is Mafkir them, whereas when carobs fall, the owner is not Me'ya'esh from them at all. That is why Rashi writes that the owner knew all along that his figs would fall and he is Me'ya'esh from them; Rashi is pointing out that the Gemara's conclusion applies to Abaye as well as to Rava.

This is evident, in fact, from the Rishonim (22b; see RAMBAN in Milchamos, and TOSFOS DH me'Achar), who explain that Abaye also will learn the Beraisa the way that Rava learned it, according to the Gemara's conclusion.

It could be that the factor which forced Rashi to explain the Gemara in this way is the Gemara later (22b) which states that when dates fall beneath a palm tree, the owner is Me'ya'esh because of the insects and pests that tend to get to the fruits before he does. (According to Rashi there (22b, DH Heichi), the Gemara is discussing the exact same situation as the Beraisa in our Gemara.)

If the Gemara did not change its understanding of Abaye, it should not be necessary to write that the owner gives up hope because of the insects. Our Gemara initially understood that the reason the owner is Me'ya'esh from retrieving anything that falls is because passers-by will take them, and not because they will be eaten by insects! If our Gemara would have been concerned that insects would eat it, then the fact that the owner's tree is standing over the fallen fruit would not prevent the insects from eating it. Consequently, it should still be considered "Yi'ush she'Lo mi'Da'as." Rashi therefore explains that the Gemara changed its mind about the passers-by taking whatever is under the tree; the Gemara now assumes that even according to Abaye no passers-by will take what is under the tree. Therefore, the Gemara (22b) is justified in saying that insects will eat dates under a tree, but the dates will not be taken by passers-by. (In the case of the trees mentioned in the Beraisa of our Gemara, we are not worried about the insects, either because their fruit is not as sweet as dates, or because it is discussing an area where there are less insects (RITVA 22b).)

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