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Bava Metzia, 26

BAVA METZIA 26 (3 Teves) - dedicated l'Iluy Nishmas Rebbetzin Sarah Gustman (wife of Hagaon Rav Yisroel Zev Gustman and daughter of Hagaon Rav Meir Bassin of Vilna) on the day of her Yahrzeit, by two Talmidim Muvhakim of Rav Gustman, Hagaon Rav Hillel Ruvel and Hagaon Rav Yisrael Azriel Zalisky - and in honor of the marriage of Rav Zalisky's son, Yitzchak Zvi, to his wife Rachel Dinah (Lasher) on 2 Teves 5762. May they be Boneh a Bayis Ne'eman b'Yisrael!


QUESTION: The Gemara explains that one may keep an object that he finds in an old wall when the object is very rusty. The rust shows that it does not belong to the present owner, and therefore the finder may claim that the object was left there from the times of the early Amorites and is not of Jewish origin.

However, even if it is possible that the object is from the Amorites, there certainly exists a possibility that it was lost by a Jew! Even if that Jew died, the object belongs to his heirs. It is true that the heirs would have been Me'ya'esh had they known that the object was lost. Nevertheless, since perhaps they were not aware that their father had such an object, it should be considered "Yi'ush she'Lo mi'Da'as."

ANSWER: The TORAS CHAIM explains that it is true that the object might have been lost by a Jew. However, since there is a possibility that it is from the Amorites, the finder is permitted to keep it out of doubt. (Since the object is not in the hands of its owner, the owner does not have a Chazakah on it, and the finder may keep it out of doubt (see Tosfos 23a, and Insights to 21b).)

If we permit a person to keep a Safek Aveidah, then why does the Gemara (26b) say that if one sees a Sela falling from one of three people walking together, the finder is not permitted to keep it because the owner will not be Me'ya'esh? The reason we assume that the owner is not Me'ya'esh is because if the amount found is worth even two Perutos, then perhaps the three of them were partners in the money and one of them relinquished his share to one of the other two partners, thereby making the Aveidah worth a Shaveh Perutah for the one who lost it. Since they are partners, they trust each other and assume that one of them must have found it and will later return it, and therefore they are not Me'ya'esh. Why should we make such an odd assumption to prevent the finder from keeping it? It should be considered at least a Safek and we should permit the finder to keep it out of doubt!

The answer may be derived from TOSFOS (DH she'Nafal) who explains that the Gemara is referring to a case in which the three people began to look for the coin together. The fact that they were looking for it together shows that they trust each other, and that is why we assume that they certainly were not Me'ya'esh.

However, RASHI (24b, DH Mi) writes -- when explaining the opinion of the Rabanan who do not permit a person to keep an object found in a place populated mostly by Kena'anim -- that the finder may not keep it because the Rabanan do not follow the principle of "Rov" with regard to monetary matters. This implies that he disagrees with Tosfos (at least according to the Rabanan who argue with Rebbi Shimon ben Elazar) and holds that we do take into account the Chezkas Mamon of the original owner and we do not let the finder keep it. Does the Halachah of our Mishnah apply only according to Rebbi Shimon ben Elazar?

Perhaps Rashi holds that when the Gemara answers that the object is rusty, it means that the owner was certainly Me'ya'esh if he left it there for so long, for he must have forgotten where he left it. The reason it is not "Yi'ush she'Lo mi'Da'as" is because we assume that any object that was intentionally placed in a particular place by its owner will certainly be remembered by the owner shortly afterwards (see Chart #8, footnote 8a).


QUESTION: Rava says that if a person saw a Sela fall and he picked it up with intention to steal it before the owner was Me'ya'esh, he transgresses three Aveiros.

A Sela, though, is an object that cannot have a Siman. Rava himself holds that "Yi'ush she'Lo mi'Da'as" is Yi'ush. Therefore, the finder should be permitted to keep the coin even if he picks it up before Yi'ush!


(a) The RAMBAN explains that the proper Girsa is "Amar *Rabah*" and not "Rava."

(b) The RASHBA and PISKEI RID explain that the Girsa in the Gemara is that "if one saw a Sela fall *from two people*." (This is the Girsa which Rashi here rejects.)

(c) RASHI seems to understand that Rava eventually agreed with Abaye that "Yi'ush she'Lo mi'Da'as" is not Yi'ush, and that is the ruling that he is following in the Sugya here. This is evident from the words of Rashi (DH Nakitna) who explains statements which are later elucidated by Rava according to the opinion of Abaye that "Yi'ush she'Lo mi'Da'as" is not Yi'ush.

TOSFOS (DH she'Nafal) asks this question on Rashi, and he notes that it is not logical to assume that Rava changed his mind. This is, however, what Rashi seems to hold.

(d) TOSFOS RABEINU PERETZ and the RITVA explain that the coin that fell was contained within a wallet and therefore it could be returned based on the Simanim of the wallet.

QUESTION: The Mishnah teaches that when a person finds coins in a store, he may keep them.

Why should the money not be acquired immediately by the storeowner? We learned earlier (11a) that one's Chatzer is Koneh an object for him, even when he does not know that it is there, as long as he is standing next to his Chatzer. The storeowner is standing in the store, and therefore his Chatzer (the store) should acquire for him the lost coins before anyone picks them up! (TOSFOS 26a, DH d'Shasich)


(a) TOSFOS answers that a Chatzer is not Koneh an object for its owner when it is possible that the owner will never find that object. Since coins are small (and they could become lost in the dirt), it is possible that the owner will never find them and thus the Chatzer cannot be Koneh them for him.

(b) The RAMBAN, RASHBA, ROSH and other Rishonim give another reason why the owner is not Koneh the coin through Kinyan Chatzer. They explain that at the moment that the coin hit the floor, the owner of the coin did not yet know that he lost it, until he felt that it was missing from his pocket. At that moment, the storeowner could not acquire the lost coin. Even though the owner was later Me'ya'esh, it does not remove the obligation of the storeowner to return the coin. Any lost object that enters a person's domain before Yi'ush cannot become his through Yi'ush, as the Gemara explains in Bava Kama (66a). (This is referred to as "b'Isura Asa l'Yadei.")

What is the logic of the distinction between whether the owner was Me'ya'esh before or after the object reaches the domain of the finder? After all, we find that if the owner was Mafkir a lost object after it reaches the domain of the finder, the finder may keep it. (See Gemara and Rashi 27a, "Afkurei Mafkir Lehu.")

The MORDECHAI cites the MAHARAM MI'ROTENBURG who explains that such Yi'ush is not valid, because it is considered like "Yi'ush b'Ta'us," mistaken Yi'ush. Had the owner known that the object had already reached the domain of a person who is able to return it to the owner, he would not have given up hope of retrieving it.

TOSFOS in Bava Kama (66a, DH Keivan) gives another explanation. Tosfos writes that "Yi'ush is not like Hefker." (Tosfos is explaining why Yi'ush does not help to enable a Ganav to be Koneh when a stolen object comes into his possession in the manner of "b'Isura Asa l'Yadei." In such a case, the logic of the Maharam does not suffice, since the Ganav certainly does not intend to return it.) What does this mean?

Tosfos might mean that Yi'ush does not remove the ownership of the object's original owner. Rather, it permits others to take it away from him. Once the object enters the domain of another person (whether the object is lost or stolen), the owner of that domain becomes obligated to return the object to its owner. This obligation prevents him from taking it away from the domain of the owner, since as long as it has an owner, he is required to bring it to that owner and not to take it out of the owner's domain. In contrast, if the owner was *Mafkir* the object, then the object has no owner and the Mitzvah of Hashavas Aveidah does not apply to it and the finder may keep it.

Why does Tosfos not answer the same way as the Ramban and other Rishonim, and say that the storeowner cannot be Koneh objects that come into his hands "b'Isura?" (MAHARSHAL cited by the SHACH)

1. The SHACH and MAHARSHA explain that Tosfos wants to explain the Mishnah even according to Rava, who holds that "Yi'ush she'Lo mi'Da'as" is considered Yi'ush," and the Yi'ush occurred before the object reached the floor. (However, it is possible that even according to Rava, the "Yi'ush she'Lo mi'Da'as" will not take effect until the owner leaves behind the coin that fell on the floor. Prior to that point, he would not be Me'ya'esh if he knew where the coin was.)

2. They answer further that Tosfos (DH Afilu) explains that the Mishnah is talking about a place inhabited mostly by Nochrim. Hence, the object is Hefker from the moment that it falls.

3. REBBI AKIVA EIGER explains that an object that is in one's Chatzer is not considered to be "b'Isura Asa b'Yadei" since he is not yet obligated in the Mitzvah of Hashavas Aveidah. Rebbi Akiva Eiger explains this by pointing out that if a Chatzer is Koneh for a person because it is like his Shali'ach, then it cannot obligate the owner to do a Mitzvah against his will, because "Ein Chavin l'Adam she'Lo b'Fanav." (If a Chatzer is Koneh because of "Yad," then perhaps it *can* obligate him in Hashavas Aveidah even if it is not a benefit to him.)

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