YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)

Introduction to the Study of Talmud

By Rav Josh Amaru

Elu Metziot shiur #4,  21b.

Today's shiur includes the vocabulary list for the shiur itself. If you wish to consult the full cumulative vocabulary list, it is found at http://www.vbm-torah.org/talmud2/vocab.htm.

As usual, the citations to the text of the gemara are linked to the online scan of the daf, for those who do not have an open gemara before them.

Summary of last shiur:

   Last week we explored the parameters of the famous makhloket between Abaye and Rava as to whether yeush she-lo mi-da’at counts as yeush or not.  We saw that the gemara focuses the disagreement on a case in which one finds an object that has no siman.  In such a case, Rava says that even in a scenario in which we can presume that the owner is unaware of his loss, since in the end he or she will give up hope of recovery, we can regard the yeush as already having taken place and the finder may keep the object.  Abaye disagrees and holds that actual yeush must take place before the finder may acquire the object.  Thus, according to Abaye, two conditions must be met in order for the finder to take possession:

1. There must not be a siman on the object that would make it possible to identify it, and thus the owner is mityaesh.

      The gemara opens with the phrase “Ta shema”, literally “come hear.”  When you see ‘Ta shema’, you know that the gemara is now quoting a (usually) Tannaic precedent in order to prove a point.  In this case, the precedent is a phrase from our mishna (on 21a).  Recall that our mishna is made up of a list of items that if found can be kept by the finders since they have no simanim.  The gemara quotes the first item on this list – scattered fruit – and points out that nowhere in the mishna does it say that we know that the owner has noticed that he has lost the fruit.  The mishna seems to support Rava, that yeush she-lo mi-da’at is yeush, i.e. that even before the owner has discovered his loss, the finder may keep the found object. 

     How can Abaye respond?  Is it not true that the mishna, by its silence on the issue, implies that we do not need to establish awareness of the loss on the part of the owner, giving rise to actual yeush?  As a matter of fact, we have already resolved this problem.  On the previous page, we already saw that the case of ‘scattered fruit’ is problematic (see shiur #2).  There R. ‘Ukva bar Chama resolved the problem by making an ‘Ukimta’, a limiting case, and saying that the case of scattered fruits does not refer to ordinary lost fruits but specifically to the leavings of the threshing floor.

Textual note:Take note of the little letter (ג) that appears between the words “mekanashta מכנשתא” and “de-beizari דביזרי.”  If you remember from the previous amud, the gatherings of the threshing floor were described in a slightly different form:  מכנשתא דבי דרי mekanashta de-bei dari.  It is the same word in both places and is probably merely a printer’s error that it is modified here.  The small (ג) refers us to Hagahot ha-Bakh, the comments of the Bakh (short for bayt khadash, written by R. Yoel Sirkis, Poland 1561-1640).  Hagahot ha-Bakh are short comments on the text, usually with suggestions for textual corrections.  These comments are marked with small Rashi-script letters in parentheses in the text and printed somewhere in the margin of nearly every page of gemara.  In this case they are printed on the left margin, roughly at the same height as the gemara we are learning.  Ironically, at least in the edition I have in front of me, the Bakh’s comment pointing out the error in the text is itself mis-marked.  The relevant comment is not (ג) but (ב).  If you look, you will see that the Bakh emends our text to match that which appears on 21a - מכנשתא דבי דרי - mekanashta de-bei dari.

The reason why the finder may keep these leavings is not because we presume yeush in the absence of simanim.  Rather, this is a case in which the owner deliberately abandoned these fruits because it was not worth his while to pick them up.  If we understand the mishna in this way, the question of the validity of yeush she-lo mi-da’at does not arise for this is a case in which there was certainly yeush, as the fruit was deliberately abandoned.

     Let us continue.  This time we will look at series of ‘Ta shema’ quotes at once.  Learn the gemara from (line 18) “Ta shema ma’ot mefuzarot… until “… u-khederabi Yitzhak” (line 29).  Make use of the schematic analysis lines 4-12 and the vocabulary page. 

The gemara quotes the next item from our mishna – scattered coins and uses it to challenge Abaye’s position as before.  In no place does the mishna mention that scattered coins belong to the finder only the owner was aware of their loss.  This would imply that the finder may keep the coins even when the owner has not yet been mityaesh, and thus yeush she-lo mi-da’at is valid! 

     In defense of Abaye’s position the gemara invokes a psychological-behavioral principle quoted in the name of R. Yitzchak.  R. Yitzchak says that people normally check that the contents of their purse are intact at frequent intervals.  Given this fact, we can assume that anyone who has lost money is aware of that loss.  Thus the mishna, in permitting lost money to the finder is not assuming that yeush she-lo mi-da’at is valid yeush, but that at least in the instance of lost money, we can assume that it is not a case of yeush she-lo mi-da’at, of yeush that the owner is not yet aware of, but of actual yeush.

     The same argument is made about the next items in the mishna’s list of found objects.  Rounds of pressed figs and baker’s loaves have no simanim and thus they belong to the finder.  The mishna makes no qualification that the owner must be aware of the loss.  The gemara’s defense of Abaye’s position is that here too there is reason to presume that the owner is aware of the loss.  Since these items are heavy, very little time will go by before the owner notices.

     In a last attempt to use our mishna to support Rava’s perspective, the gemara refers to stripes of purple wool that the finder may keep. These are not heavy so we cannot use the argument made in the previous example.  But they are expensive, and thus, according to Abaye, we can presume that the owner is aware of his loss according to R. Yitzchak’s principle that a person checks his purse at frequent intervals.  So too, with expensive items, a normal person will check on them regularly.

     Some of you may be a bit puzzled by this series of attacks and rebuttals on Abaye’s position.  They all turn on essentially the same point:  As we mentioned above, according to Abaye, in order for the finder to be permitted to keep the lost object, two conditions must be met:  1. The lost object must not be identifiable, i.e. it must not have any simanim, which creates a presumption that the owner is mityaesh of ever recovering it.  2.  The owner must be aware of the loss before the object is acquired by the finder so that actual yeush can take place.  Our mishna includes a list of objects lacking simanim, thus meeting the first condition, but makes no mention of circumstances that would ensure the fulfillment of the second condition.  This would imply that there is no such requirement and thus that the presumption of future yeush is sufficient (as Rava claims).  Abaye’s answer asserts that in each case listed in the mishna, there is reason to assume that the owner has been made aware of his loss and thus was actually mityaesh.

     One might say that Abaye’s reading of the mishna seems very unconvincing; After all, if the mishna is a list of siman–less items that one is immediately aware when they are missing, it should have said so.  To this complaint one can reply in two ways:  first of all, the mishna itself does not mention even the criterion that everyone agrees upon:  that objects must not have simanim in order to belong to the finder.  The mishna merely gives a list whose nature is debatable.  Abaye’s understanding of the list, so long as it is internally consistent, is logically of the same value as Rava’s.  Secondly, even if we do find Abaye’s reading of the mishna unconvincing, we must remember the context.  Abaye asserts a legal doctrine, that yeush she-lo mi-da’at is invalid.  This doctrine is not based exclusively on our mishna but on Abaye’s broader understanding of the nature of ownership that is founded on many different examples and precedents. Some of those precedents fit the rule better than others, but in order to defend his position, Abaye does not need to convince us that his reading is the correct reading of the mishna.  He merely needs to convince us that it is possible to read the mishna his way, such that it does not function as a precedent contradicting the principle that yeush she-lo mi-da’at is not yeush. 

     Before we conclude, let’s look at one more ‘Ta shema’.  Learn from the next Ta shema until “…Adam asui le-mashmesh be-kiso be-khol sha’ah,’ lines 13-15 in the schematic analysis.  This time, we have the same question as before, only the precedent is a baraita and not our mishna.  The baraita teaches us that one who finds money in a public place, like a synagogue or beit midrash, may keep his or her findings since the owners are mityaesh.  Here too, asks the gemara, since the baraita does not mention it, it would appear that it does not matter whether the owner is aware of the loss such that he or she can be mityaesh, ergo yeush she-lo mi-da’at is valid.  As we would expect by now, the answer invokes R. Yitzhak’s rule that people check their purses all the time to ensure that their money is not lost.  Thus we can assume that the owner is aware of the loss and has reached an actual state of yeush.

     As a matter of fact, it would appear that R. Yitzhak’s rule was originally stated as a comment on the last baraita.  Notice that in the previous references to his rule, the gemara referred to it with the phrase “u-khedeRabi Yitzhak”, literally “and in accordance with (the rule of) R. Yitzhak.  In this last case, the gemara does not make reference to the rule as a known thing but states it straight out:  R. Yitzhak said, etc.   

     The reliance on R. Yitzhak’s rule has an interesting repercussion.  Assuming that the halakha is in accordance with Abaye, and yeush she-lo mi-da’at is not considered yeush (we will discuss this question in a later shiur), then a finder may keep lost objects only when we have reason to believe that the owner is aware of his loss.  Thus there may be circumstances in which the lost object has no simanim and thus there is no way of finding the owner, but the finder may not keep it for himself.  According to R. Yitzhak, this is not the case with money and other things of value since people pay attention to their money.  Today, this may be true of significant sums of money but what about small change?  Are people aware when they drop a quarter?  I do not know the answer to that but if the answer is no, then one cannot pocket the quarter one finds in the street.  Just to be clear, the above is mere speculation – I am not aware of any modern discussion of this topic and the accepted pesak halakha is that the finder may keep lost coins, based upon R. Yitzhak’s ruling that a person checks his purse at frequent intervals.

Schematic analysis #4

Schematic analysis of daf 21b from “Ta-shema...” (line 15) until “…lemashmesh bekiso bekhol sha’a” (line 34)

New Key words

אגב – בגלל agav: since, because of

אוקימתא –ukimta: noun form of lokim to establish or maintain.  An ukimta refers to the specification of a (class of) case(s) in which a particular law applies.  This usually serves to narrow the scope of the law and thus avoid a difficulty.

אמאי – מדוע amai: why, what for

הכא – כאן – hakha, here

התם – שם hatam:  there

מיניה – ממנו – minei, from it

נמי nami – also -

תא שמע -   Ta shema – Come and hear.  Ta shema is the opening of a quote from a precedent, usually a Baraita, but occasionally a mishna or a meimra of Amoraim.  Most often (as in the case on 21b), Ta shema is used to introduce a precedent that prima facie proves the point of one side of a makhloket.

New Vocabulary

אגב – בגלל agav: since, because of

אמאי – מדוע amai: why, what for

הכא – כאן – hakha, here

התם – שם hatam:  there

חשיבי – יקר chashivi: valuable

יקירי – כבד yakiri: heavy

למשמש -  lemashmesh, to touch and feel, to check by touching

מיניה – ממנו – minei, from it

מכנשתא דביזרי – gatherings of the threshing floor (see 21a and shiur #2)

נמי nami – also -

תא שמע -   Ta shema – Come and hear.  Ta shema is the opening of a quote from a precedent, usually a Baraita, but occasionally a mishna or a meimra of Amoraim.  Most often (as in the case on 21b), Ta shema is used to introduce a precedent that prima facie proves the point of one side of a makhloket.