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Michael Levi Rodkinson.

New edition of the Babylonian Talmud. Original text edited, corrected, formulated, and translated into English (Volume 11) online

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Give to another ; so that if it would be returned to whom it was
first assigned, he would not acquire title to it, but the last one
would : and the Boraitha which states that it shall not be re-
turned speaks of the son of the testator, and the reason is, it is
to be feared that perhaps the testator has not given it to him be-
cause he has decided to assign it to another ; and, therefore, he
did not deliver it to him, and the son, after the death of the
father, to whom the intention of his father was known, assigned
the estate to another and already delivered the document to
him, and afterwards he decided to give it to the one to whom it
was previously assigned by his father, but as the document was
already given to the second, and he could not retract it, he de-
clared that the father's will was, to deliver it to whom it was first
assigned with the intention that the latter should summon the
party to whom the son had delivered his document, so that fi-
nally the estate should be divided among them. The court, there-
fore, may say it will not be returned for the reason explained



TRACT BABA METZIA (MIDDLE GATE). 41

above ; but if you wish that the man in question should get the
estate, go and draw up another document and deliver it to him
and then the will of your father will be complied with.

The rabbis taught : " If one finds a receipt (of a marriage
contract), it is to be returned to the husband when the woman rec-
ognizes it, but not otherwise." Now then, why should it not be
feared the same as above ? Perhaps she wrote it to deliver it in
Nissan and she had not delivered it before Tishri, and in the
meantime she had assigned to somebody else her marriage con-
tract for the benefit of the products in the interim from Nissan to
Tishri, and afterwards if the goods would be collected by her re-
ceipt, it would be illegal." Said Rabha : " Infer from this, that
the Boraitha is in accord with Samuel, who says : * When one
sells a note made for a loan and afterwards he relinquishes the
debt mentioned in the note, it is relinquished, and even his heir
can do so (so that the debtor must pay nothing and the money
taken for the note is to be returned).' " Abaye, however, said :
" Even if we should say that Samuel's decision is not to be con-
sidered, the case in question is to explain when the marriage
contract is in her possession and she brought it before the court.
According to Rabha's theory, however, the marriage contract is
not to be considered, for she may have had two." Abaye, how-
ever, rejoined : " First, it is not to be feared that there may be
two ; and secondly, the collection on account of the receipt takes
place from the date it was signed, no matter when it was deliv-
ered." The last statement of Abaye is in accord with his theory
elsewhere, that witnesses with their signature give title to whom-
ever the document was written.

MISHNA VII. : One who found documents in which was as-
signed by the court the property of the defendant in benefit for the
plaintiff, or obligations of supporting (his step-daughter, or) docu-
ments of Haliza or such where the annulment of a marriage of a
female minor is expressed, documents of a claim and of arbitra-
tion, and other documents made by the court, are to be returned
to whomever they belong. When one finds a note in a naipa or
bag or a roll or a bunch of notes, it must be returned. What is
to be considered a bunch ? Three bound together. R. Simeon
ben Gamaliel says : " When three notes of the same debtor and
different creditors are found, they should be returned to the
debtor; but if three different debtors from one creditor, then
to the creditor. If one finds a note among his own notes and
he does not know to whom it belongs, it shall be placed in court



42 THE BABYLONIAN TALMUD.

until Elijah will come. If there is a ffv/u<pGoyta, he shall act
according to it."

GEMARA: What is meant, claiming documents? In the
college of Babylon they used to explain it as documents of
plaintiff and of the defendant. R. Jeremiah, however, said :
" Documents of the arbiters taken by the parties."

"And all documents made by the court." There was found
a divorce which was written in the city of Shev^r^, which was
situated on the river Rackth, and it was brought in the court of
R. Huna. Said R. Huna: " It is to be feared that there are two
cities of such a name (therefore it is doubtful if it may be re-
turned)." Said R. Hisda to Rabba : " Look up this matter, for
in the evening R. Huna will inquire about it of you." Rabba
did so, and found the quotation stated above in our Mishna.
Said R. Amram to Rabba : " How can you, master, decide the
matter of a legal marriage from a money case?" And he an-
swered : " Tardus ! Did not the Mishna state documents of
Haliza, etc. (are these not documents of legal marriage) ? " In
the meantime the pillar of the college broke, and each of the
above sages claimed that this happened as a punishment for the
disgrace of his honor (Rabba because he was insulted by the
expression of R. Amram, and the latter because he was ashamed
of being called Tardus).

" A roll or a bunch of notes." The rabbis taught : " What
is called a roll ? " If there were no less than three ; and a bunch
must contain the same number, but in this case they must be
tied together. Shall we infer from this that such a knot is to
be considered as a sign of identification ? Said R. Hyya : " It
treats of a case where the notes of the bunch were also rolled,
one in the other." If it is so, then it is a roll (already mentioned
above). A roll means that each of the notes was rolled sep-
arately in it ; and a bunch means they were rolled together.
What shall be proclaimed: the number? Why, then, no less
than three : must he not proclaim it even when there were two ?
As Rabbina said elsewhere, that if one finds a number of coins
he must proclaim that he found money without mentioning the
number and without explaining what kind of money, the same
is the case here, he shall proclaim : " I have found documents,"
without any explanation (and the loser must explain their con-
dition and how many).

" R. Simeon ben Gamaliel," etc. If they belong to the
creditors, how could they be together ? But perhaps they were



TRACT BABA METZIA (MIDDLE GATE). 43

lost by the creditors while going to register them. The case was
when they were already registered. But perhaps they were lost
from the hand of the register. It is not usual for one to leave
his registered note with the register.

" When three borrowed from," etc. For if they were lost by
debtors, how could they be found together? But perhaps they
were lost on the way from the scribe's. The case was when three
different handwritings were found. Perhaps they were lost on
the way to the register's? Usually the creditor registers the
note, but not the borrower.

" If there is," etc. R. Jeremiah bar Abba said in the name
of Rabh : " A sv}x<pGovia that is in the hand of the creditor is
invalid even when it was written by himself, as it may be that
he prepared it in case the debtor would give him the money at a
time when it would not be easy for him to make a receipt, and
much less when it was written by a scribe, as it may be that he
expected money from the debtor, and while waiting for it, it
happened that the scribe called upon him. Does not our Mishna,
which states he shall do accordingly, contradict Rabh ? As R.
Saphra said elsewhere, if it were found between torn notes, so
also can be explained our Mishna. An objection was raised.
Gome and hear ; " A ffvfxqjoovia in which was proved by wit-
nesses (and the creditor denies that he received the money), it is
sufficient if the witnesses admit their signatures." Read : The
witnesses must be questioned if they saw the payment. There
is another objection : " A ffvpicpcovia which is proved by witnesses
is valid." It means that the payment was approved by the
court, and this explanation seems to be right, as the latter part
states that if there are no witnesses it is invalid, and it cannot
mean that no witnesses at all, as this would be self-evident.
Hence it must be explained that when it was not approved by
the court, it is considered as if there were no witnesses. In ad-
dition to the text mentioned above, we learn : " If there were
no witnesses, but it was in the hands of the depository, or it was
placed below the signatures, it is valid : and the reasons are that
a depository was trusted by the creditor ; and below the signa-
tures, because if it would not be paid, he would not permit them
to spoil the note."



CHAPTER II.

LAWS RELATING TO FOUND ARTICLES, WHICH MAY OR MAY NOT BE
KEPT WITHOUT PROCLAMATION, AND HOW FOUND ARTICLES
SHALL BE CARED FOR, ETC.

MISHNA /.: There are found articles which belong to the
finder without any proclamation ; namely, scattered fruits or
scattered money in a public thoroughfare, small sheaves, strings
of pressed figs, bread of a baker (as all bread of the baker is
alike; home bread, however, differs, and is recognizable), strings
of fish, pieces of meat, and shorn wool from the country where
it was shorn, cleansed flax, and stripes of scarlet wool вАФ all these
belong to the finder (when it was found in such a place where
people pass). So is the decree of R. Meir. R. Jehudah, how-
ever, maintains: If there is a change in the found article, which
usually ought not to be, as, e.g., he found a fragment of a clay
vessel in pressed figs, or he found a coin in a loaf of bread, he
must proclaim. R. Simeon b. Elazar says: All stew vessels
which are for sale he need not proclaim.

GEMARA: How much of the scattered fruit belongs to
him without proclaiming? Said R. Itzhak: " If in a distance
of four ells there were scattered fruits the measure of kab."
Let us see in what condition did he find it. If it was placed in
such a way as dropped unintentionally, why only a kab ? Even
if there are more, it should be his ; and if it was placed in such
a manner that it can be supposed they were placed intention-
ally, even less he should proclaim. Said R. Uqba bar Hama:
"It treats of a place where the grain is gathered from the barns,
and if he found the size of one kab scattered within four ells,
which it is too much trouble to gather, the owner of it usually
would not take such trouble and renounce his ownership, but if
it were scattered within a shorter distance, he may think, ' I
will take the trouble to pick it up afterwards,' and he does not
renounce his ownership." It was taught: " The renouncing of
hope in regaining a lost article, which it is not yet certain is
lost {i.e., the article was found before the loss was known to the
owner, but usually, becoming aware of its loss, he will not try

44



TRACT BABA METZIA (MIDDLE GATE). 45

to regain it). According to Abayi such must not be taken in
consideration, and Rabha, however, maintains it may." They,
however, do not differ when the article has a mark that in such
a case it must be supposed that when he will become aware of
it, he will not renounce his hope to regain it because of the mark;
and even if thereafter it was heard that he had renounced his
hope, still the finder has not acquired title, because at the time
he found it, it cannot be considered that the hope should be re-
nounced when the owner becomes aware of its loss, because there
is a mark, and he will certainly think, ' ' I will try to search for
it by identifying the mark." The same also do not differ when
the article was found at the seashore or near a waterfall, that it
belongs to him, even if it has a mark, because the law allows it,
as will be explained further on ; the point of their difference, how-
ever, is in case the article has no mark. Abayi is of the opinion
that the finder cannot acquire title to it, because the owner is not
yet aware of his loss. Rabha, however, maintains that he does,
because it is certain when the owner becomes aware of it that
he will renounce his hope. Come and hear. Our Mishna
states: " Scattered fruit, it is his." Although he did not know
whose it was? Said R. Uqba b. Hama: " The Mishna means
a case in the season of gathering the grain from the threshing
floor, which is considered an intentional loss." Come and hear.
Scattered money belongs to him, and certainly the loser of it
was not aware when he lost it (as if he were, he certainly would
pick it up), and nevertheless it belongs to the finder. This can
be explained as R. Itzhak said elsewhere: " Usually a man
inspects his purse frequently (and the loss of his money was
already known to him when the finder picked it up)." Come
and hear the other part of the Mishna: " Pressed figs and bread
of a baker ^ it is his." Why, the owner was not aware of it? It
also can be said because such are of great value he must have
been aware of the loss. [The same was objected to, based on
further expression of our Mishna, " Stripes of scarlet wool,"
and the answer was the same as above.] Come and hear (an-
other objection). " ;^at<f0'za which were found in a public thor-
oughfare, although they were near the field where they grew,
and also a fig tree the branches of which were bent toward the
street, and one found figs beneath, the people are allowed to
eat these, and it is not considered robbery ; they are free from
tithe." Now the Boraitha would not contradict Abayi, as the
cassia are of great value, and it is known where the fruit of the



46 THE BABYLONIAN TALMUD.

fig tree would drop ; but the latter part of the same Boraitha
states that if it were an olive tree or carob, it is prohibited.
Would not this be a contradiction of Rabha's statement ? Said
R. Abbahu : " It is different with an olive tree, as the color of
the olives is the same as that of the tree, and they can be recog-
nized wherever they are found * (and therefore the owner of
them does not renounce his ownership, thinking that any one
will recognize that they are his). If so, why should it be the
same with the fig tree mentioned above ? Said R. Papa: When
figs drop, they become soiled (therefore their owner does not
care for them any more). Come and hear. A thief or a robber
who took an article from one and gave it to another, or an arti-
cle falls into the Jordan and is washed up at another place,
and some one picked it up, the latter is entitled to it. Now
this would be correct concerning a robber or the Jordan, where
the owner sees his article lost, and renounces his hope of regain-
ing it; but with the case of a thief, has then the owner seen
him, that he should renounce his hope ? R. Papa interprets the
Boraitha, saying that it treats of an armed robber; but is it not
the same as a robber, which case has already been mentioned ?
It treats of two kinds of robbers. Come and hear: " If the
river has flooded one's beams, wood, or stones, and carried
them away to another field, the latter may use them, because
their owner has lost his hope." We see that the reason is
because it was certain that the one had renounced his hope
already, but when uncertain it is not to be used (and this would
contradict Rabha). The case was that the owners could have
saved the articles; if so, how is the latter part of the same to
be understood ? If the owner came to get them, he is obliged
to return them. Now, why going to get them ? If he could
save them he should be obliged to return, even if he had not
come to get them, etc. The case was that he could save them
with great trouble. If he came to get them, we see that he had
not renounced his hope; and if not, it is to be supposed that
hope is renounced. Come and hear (another objection). How
can a case be where one shall separate heave-offering without
the knowledge of its owner, and nevertheless the heave-offering

* The text here is complicated, and some of the commentators try to correct it ;
nevertheless, Rashi's opinion and Tosphat's opinion concerning it differ ; the com-
mentators after them, such as Lurie and Meier of Lublin, and also Edlias (Marsha),
discuss it also. We, however, have translated as best we could, so as to make it
understood.



TRACT BABA METZIA (MIDDLE GATE). 47

shall be valid ? Thus, if one goes to the field of his neighbor
and gathers grain, and has separated the heave-offering without
knowledge of the owner, if robbery can be suspected, the heave-
ofTering is not valid; and if not, it is; and how docs he know
that there is no robbery ? When the owner appears while his
neighbor is on his field engaged in the above-stated work, and
said to him, You should separate for the priest from the better
ones ; then, if better ones are found, the heave-oiTering is
valid, but if not it is invalid (because the remark of the owner
was but ironical, as there were no better ones). If, however,
the owner had added to the heave-offering, it is valid, although
better ones were not to be found. We see, then, if there were
better ones the heave offering is valid, though the separator did
not know of it while doing so (let it be the same with regard to
renouncing hope, that even when it comes afterwards, the finder
shall acquire title even before the renouncing was known ?).
Rabha explained this in order that the Boraitha shall agree with
Abayi's theory: " The owner, with his remark, appoints his
neighbor to be his messenger." (Said the Gemara:) It seems
that Rabha's explanation is correct, for if he would not become
his messenger, how can his act be of any value ? Is it not writ-
ten [Numb, xviii. 28]: "Thus shall ye also offer," etc., and
from the word " also," which is superfluous, it is declared that
it includes a messenger, and it is also declared there that as the
word " ye" means " it shall be done intentionally," so also if
this is done by the messenger the intention is necessary ? (hence
we see that only a messenger has the right to separate heave-
offering), and the above Boraitha must therefore be explained
that he appointed him as a messenger, saying, " Go and sepa-
rate " ; but he did not determine of which grain he should sepa-
rate. And usually the owners separate from the middle one;
the messenger, however, does so from the better one; now
when the owner comes and says, " Why did you not separate
from the better one ? " if there is to be found still better than
he had separated, his act is valid ; but if not, the saying of the
owner must be considered ironical, and the messenger's act is
of no avail.

Amaimar, Mar Zutra, and R. Ashi happened to be in the gar-
den of Mari bar Issak, and the gardener placed before them
dates and pomegranates. Amaimar and R. Ashi partook. Mar
Zjutra, however, did not ; meanwhile the host came and said to
his gardener: " Why did you not serve the rabbis with the best



48 THE BABYLONIAN TALMUD.

ones?" Said both Amaimar and R. Ashi to Mar Zutra:
" Why does the master not partake of it now ? Have we not
learned if better ones are to be found the heave-offering is
valid ? " And he answered : " So said Rabha, that this expres-
sion is to be cited in case of heave-offerings only, because it is a
meritorious act, and it may be assumed that the owner made
his remark with good intentions ; but here, it can be said that
he said so to the gardener only not to be ashamed (to be con-
sidered niggardly)." Come and hear. R. Johanan said in the
name of R. Ishmael b. Jehouzadok: "Whence do we know
that a lost article, which was flooded, is allowed to be used by
one ? Because it is written [Deut. xxii. 3] : 'In like manner
shalt thou do with his ass, and in like manner shalt thou do
with his raiment, and in like manner shalt thou do with every
lost thing of thy brother's which may have been lost by him,
and which thou hast found.' From which it is deduced that
when it is lost to him, but not to others; exclude, then, the
flooded article, which is lost to him and also for every one ; and
as in the case of flooding the article is allowed for use, no mat-
ter whether it had a mark or not, the same is the case with
an article which is not allowed for use, when it is not certain
that the owner of it has renounced his hope. No matter
whether the article has a mark or not, it is prohibited, even in
case where the hope would be renounced by the owner imme-
diately after he became aware of his loss." Hence Rabha's
statement is objected to, and the Halakha prevails according to
Abayi, as this is one of the six things. (See Baba Kama, p. 163.) *
Said R. Achi' the son of Rabha to R. Ashi: " Now as it is
decided that Rabha's statement is objected to, how then do we
eat dates which the wind blows away to the highway ? " And
he answered: " Because there are insects which consume them;
the owners of the dates therefore renounce their hope of such."
The former questioned again: " In case the trees belong to
orphans, who are disqualified to renounce their hope, let there-
fore all fallen dates not be used." And he rejoined: " Must
we then consider that the whole valley belongs to orphans?"
The former said again: " But if it be known that such is the
case, how is the law?" And he rejoined: "Then it is pro-
hibited."

" Small sheaves," etc. If the mark on the article in ques-

* la Tract Sanhederin the six cases will be named.



TRACT BAB A METZIA (MIDDLE GATE). 49

tion was of such a natiire that it could be effaced by stepping
on it, Rabba said: "That such a mark is not to be considered."
Rabha, however, said: " It is." An objection was raised fror-;
our Mishna. Small sheaves in public thoroughfare may be used
without proclamation, but if they were found on private ground
he may take it provided he proclaims. Now how was the case ?

If it treats of such that have not a mark, what shall he pro-
claim ? We must, therefore, assume that although they have
a mark they are his if found in public thoroughfares, because
the mark is usually effaced by stepping upon it; hence it is an
objection to Rabha. He may say that the Mishna treats of
such that have not a mark, and your question, What shall he
proclaim if on private ground? is to be answered that he shall
proclaim the place where it was found, as it was taught that
both sages mentioned above differ concerning the place. Rabha
maintains that it is a mark, and Rabba says it is not.*

Said R. Zbid in the name of Rabha: " The rule concerning
a lost article is this, as soon as the owner exclaims, ' Woe, the
damage I have had ! ' he does not care to search for it any more
(it is considered renouncing of hope, etc.)." The same said
again, in the name of the same authority: " The Halakha pre-
vails that sheaves on public ground belong to the finder in all
cases; however, in private thoroughfares, if it was found in such
a manner indicating that it was dropped, it can be used, and if
indicating that it was placed so intentionally, he may take it
providing he proclaims ; and in both cases it is only when it has
no distinguishing mark; but if there were, no matter in which
place, and how they were placed, he must proclaim."

"Strings of fish,'' etc. Why? Let the knot be the re-
quired mark ? It means, i.e., that it was found in the way as
fishermen usually tie it; but let the number be the required
mark. Such a number is used by all fishermen.

R. Shesheth was questioned whether a number is considered
a distinguishing mark or not, and he answered: " We have
learned this in the following: 'If one found silver or copper
vessels, a cassiteron of tin, or any other metal vessel, the finder
need not return it, unless the owner of it identify it by a mark

* In the text here similar questions are continued from the Mishna and Boraithas
concerning marks and articles which are destroj-ed by stepping upon them, and also
about places, whether it should be considered a mark for proclamation or not.
Objections and answers are made to the opinions of the above sages in the same
manner as above, which is already translated, and therefore we have omitted them.
4



so THE BABYLONIAN TALMUD.

or the exact weight of it. ' Now, as the weight is a mark, the
same is the case with the size and number."

" Arid pieces of meat,'' etc. Why let the weight be a mark?
when the Aveight was as customary with all butchers. But let
the kind of the piece be a mark, e.g., leg or shoulder, etc.
Have we not learned in the following Boraitha: If one found
pieces of fish or a bitten fish, he must proclaim ; barrels of wine,
oil, grain, dry figs, and olives are his ? It treats of a case when
there was a distinguishing mark in cutting it, as Rabba bar R.
Huna used to cut it in the form of a triangle. It is so also to
be inferred from the statement " a bitten fish " (and this is cer-


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Online LibraryMichael Levi RodkinsonNew edition of the Babylonian Talmud. Original text edited, corrected, formulated, and translated into English (Volume 11) → online text (page 13 of 24)