YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)


Introduction to the Study of Talmud
By Rav Josh Amaru

Elu Metziot shiur #8,  22a.

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.  The gemara can be found on-line at
http://www.e-daf.com/dafprint.asp?mesechta=22&daf=%2022a and http://www.e-daf.com/dafprint.asp?mesechta=22&daf=%2022b.

Key words and phrases are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  Other vocabulary words are marked in red and can be found on the vocabulary list at the end of the shiur.  Particularly important vocabulary words will have a link to the vocabulary list. 

Summary of last week: In continuing its discussion of yeush she-lo mi-da'at, the gemara brought up the case of one person taking teruma for another.  Originally it appeared that one person can take teruma from another's produce without the owner's knowledge, thus supporting Rava's position regarding yeush she-lo mi-da'at.  However, the gemara quickly limited the case to a scenario in which the teruma taker was previously appointed a shaliach (agent) and the question became a more technical one of what happens when the shaliach takes from the better quality produce.

    Before we begin learning the gemara for this week's shiur, a brief introduction.  In its next attempt to find a precedent that can help us determine the halakha in the dispute between Rava and Abaye, the gemara presents us with a baraita about the laws of tum'ah and tahara (ritual impurity and purity).  These laws are not so familiar to us today as almost all of their practical application depends upon the existence of the Temple.  To make a very long story short, persons, foods and utensils, when they are connected in various ways to the Temple service, must be tahor, ritually pure.  The rules of tum'ah and tahara are very complicated - more than one sixth of the mishna deals with them. 

   In our gemara we encounter one detail of these laws, that is based on the verse in Vayikra 11:38 - "If any water is put upon seed, and any part of their carcass fall on it, it shall be tamei (impure) to you."  From this verse the Rabbis learnt that foods (and some other things) can become tamei (ritually impure) only after they have come into contact with water (or certain other liquids).  The contact with liquid does not make the food tamei - it merely makes it capable of becoming tamei upon contact with a source of tum'a (ritual impurity).  After contact with water, the foodstuff is called mukhshar lekabel tum'ah מוכשר לקבל טומאה, i.e. - prepared to receive tum'ah.

  The halakha is that mere contact is insufficient - the owner of the foodstuff must view the contact with liquid favorably.  If he objects, or even is indifferent, then the foodstuff's status is unchanged.  The baraita quoted in the gemara deals with the circumstances under which a person's attitude toward the food's contact with water is considered favorable, so that the food is mukhshar, and can become tamei..  

    Now we can start.  Open to 22a and learn from "Ta shema odehu ha-tal...ת"ש עודהו הטל" (last words on the second to last line on the page) until "af ki yutan nami la-da'at.  אף כי יותן נמי לדעת."   (page 22b line 8).  See lines 1-6 of the schematic analysis

    The baraita we encounter teaches us that the rule of "ki yutan", i.e. the changing of the status of the food, such that it is mukhshar lekabel tum'ah, depends on the owner's approval that the food come into contact with liquid.  So long as the food is still in contact with the liquid, the owner's approval makes is "be-khi yutan."  Once that liquid, in the baraita's case the dew, has dried, the owner's approval of the contact with liquid is no longer effective and cannot work retroactively. 

    The gemara then analyzes this law, that retroactive approval does not work for "ki yutan."  Is this not because we cannot in general make use of someone's present state of mind (e.g. present approval of the fact that the now dry food was previously wet with dew) in order to establish something about the past?  This may sound a little abstract but the application to yeush she-lo mi-da'at is pretty clear:  Rava, in arguing that yeush she-lo mi-da'at is valid seems to be saying that a person's future yeush can be used to establish the fact that a state of yeush exists in the present.  Analogously, in the case of the dew on the food, we would say that since the owner will approve of the dew in the future, we regard that approval as applying from the time the food became wet.  We do not care that the owner's actual approval only takes place after the food is dry.  Our baraita confounds this reasoning.  According to the baraita, the owner must actually approve while the food is wet in order that ki yutan apply.  Rava must explain why yeush is different. 

    The gemara defends Rava's position by explaining that "ki yutan" is the exception. In general, one can apply knowledge of the owner's future mental states to the present and that is why Rava claims that yeush she-lo mi - da'at is valid.  Ki yutan, however, is a special case.  When the Torah teaches us this rule about contact with liquid being "makhshir le-kabel tum'ah", it spells the word "yutan" (it is put) in its abbreviated form - using the letters yod, tav, nun - י.ת.נ, rather than the more easily read, yod, vav, tav, nun - יותן.  The gemara understands this spelling to be indicative of the correct interpretation of the word:  ki - yutan כי יותן (passive form: "is put") should be interpreted in light of the alternative reading of ki-yitein כי יתן (active form: "he puts").  According to this interpretation, food only becomes mukhshar le-kabel tum'ah if the owner has actively brought the food into contact with liquid.  The issue here is not the owner's state of mind - approval or disapproval of his produce being wet - but what the owner does - does he put his food in contact with water.  For this reason, if the owner only discovers that there was dew on his grain after it dried, we cannot regard such a circumstance, even when the owner is pleased at this outcome, as an example of "ki yitein", "when he puts", i.e. as a case in which we view the owner as an active participant in the wetting of the food. 

    The difficulty with this answer is obvious.  If we require the owner's active participation - he must wet the food himself - what are we to make of halakha taught in the reisha, in the first half of the baraita.  There, we see that so long as the food is still wet, as long as the dew is still on it, we do not require the owner's active participation.  All that is required is his approval.  How can this be, given our interpretation of "ki yutan - ki- yitein?

    The gemara answers by referring us to a statement made (presumably in another context) by Rav Papa.  Rav Papa points out that there is a tension between the spelling of the words - ki yitein כי יתן - and the way in which they are correctly read (or pronounced) - "ki yutan כי יותן."  He explains that this arrangement is the way in which the Torah teaches us the correct application of the ki yutan rule.  The tension is resolved if we understand that ki yutan must be similar to ki yitein.  Just like putting water on grain is a deliberate, intentional act, there must be an element of intentionality even in the the passive case - when water is put on grain.

    How does Rav Papa's notion work?    Rav Papa interprets "ki yutan" in light of its spelling as "ki yitein."  Since, in the end the verse does use the passive voice, and describes a situation in which the seeds are wet without reference to the owner, it is clear that full-fledged owner participation is not necessary.  However we do require that the owner play a role such that there remains an element drawn from the "ki yitein" "when he puts" (active voice) reading of the verse.  This element is that the presence of the water be "le-da'at", with the owner's approval.  Look in Rashi, s.v. "la-da'at," on the third line of 22b, (text and translation appear after the schematic analysis). Rashi explains that the approval includes two elements:  the owner must be aware of the food's contact with liquid; he must approve of that contact.  This knowledge and approval, explains Rashi, can only be understood as an expression of the "ki yitein", "when he puts", of the verse if they take place while the food is still wet.  After the fact approval cannot be seen as an expression "ki yitein" of actively wetting the food.

    To return to Rava and Abaye:  On the face of it, this baraita does seem to challenge the notion that future states of mind can be legally significant in the present.  Rava, who claims that regarding yeush that is precisely the case, must explain why future yeush is effective but future approval of the presence of water is not.  The gemara does this by teaching us that the "ki yutan" rule has a special requirement - it must be "le-da'at" - it must involve real, actual knowledge. Potential, future knowledge is not sufficient. 

    We now turn to the last "Ta shema" in this long sugya of yeush she-lo mi-da'at. Learn from "Ta Shema de-amar R. Yochanan... ת"ש דאמר רבי יוחנן" until beya'a"l kega"m ביע"ל קג"מ,  lines 7-9 in the schematic analysis.  

    The gemara quotes a baraita that teaches about a special category of lost objects.  Do you remember zuto shel yam and sheliluto shel nahar from daf 21b?  Over there the gemara asserted the rule that items found in a flood, even when they have a siman, belong to the finder.  The gemara did not explain and merely referred us to "as we will explain later".

This baraita is quoted in the name of R. Yochanan.  This is somewhat unusual, though not unheard of, since R. Yochanan is an Amora and not a Tana.  R. Yishmael benYehotzadak is a Tana.  Note that the Masoret HaShas  includes a correction that replaces R. Yochanan with (the Tana) R. Shimon.   
  Our baraita is the "later." The Torah, after listing examples of lost objects, concludes, "and so shall you do with every lost thing of your brother's, that is lost to him, and you have found."  The Torah emphasizes that the mitzva of hashavat aveida, of returning a lost object, applies to objects that are "lost to him", i.e. their owner.  As we know, lost objects can be either with or without simanim, and the mitzva of hashavat aveieda depends upon yeush.  Our baraita concludes that there is another category.  Sometimes an object is not merely lost to him, its owner, but is lost to the whole world; e.g. something is swept away in a flood such that for a time, no one can recover it.  In these cases the baraita learns from the verse's emphasis on "lost to him" that hashavat aveida does not apply when the object is lost not merely to him but to everyone.  In such cases, we do say "finder's keepers."

    The gemara points out that the halakha that items "lost to all" are permitted to the finder must be parallel to the halakha about items that are merely lost to their owners, i.e. the ordinary case of lost objects.  In the case where the Torah permits lost objects to their finders, no distinction is made between whether or not they have a siman.  So too, where the Torah forbids the finder to keep what he or she has found, but rather commands that he or she return it, the presence or absence of a siman cannot be fundamental.  On the basis of this argument, the gemara concludes that the halakha follows Abaye, and yeush she-lo mi-da'at is invalid.   

    Let us take a closer look at this argument.  It is important to remember that whatever explanations we may give for a halakha, the fundamental source of its authority is the Torah text.  Thus all of our discussion of the laws of lost objects can be understood as an extended interpretation of the verses in Devarim 22:1-3:

The baraita about an object that was lost in the flooding of a river teaches us that these verses apply to two scenarios:

1.  When an object has been "lost to him" (the owner), but is in principle accessible to others, then there is a  mitzva of hashavat aveida, and the finder is forbidden to keep it. 

2. By implication, when an object is not "lost to him", but rather "lost to all," then its finder may keep it. In this "lost to all" scenario, the Torah has decreed that 'finder's keepers' is the rule even when the object has simanim, and could, in principle be returned. 

   In order to remain consistent, the gemara points out, we must say the same about the scenario in which the rule is hashavat aveida.  If in the "lost to all" case, the rule is "finder's keepers" regardless of the presence or absence of simanim, so too in the "lost to the owner" case, the rule must be "hashavat aveida" regardless of the the presence or absence of simanim.  

   "That cannot be right!" I imagine some of the readers saying to themselves.  "Haven't we been going on and on about simanim for eight weeks now!?  Is that not precisely what the mishna does - it distinguishes between different types of lost objects and determines the applicability of hashavat aveida  based upon whether or not there are simanim!?" 

    If that is what you have been thinking, you are correct, with one essential caveat.  The halakhot of lost objects and hashavat aveida can be divided along a single fault line - that of yeush.  The verses discussing hashavat aveida are all talking about a situation in which there has not yet been yeush. After yeush, we no longer regard the object as belonging to the owner and thus there is simply no one to whom to return it. Hence the Torah does not need even to discuss the case of a lost object after yeush

    In contrast, the case of "zuto shel yam," of an item lost in a flood that is "lost to all," is referred to in the verses discussing hashavat aveida.  The Torah has decreed that an object "lost to all" belongs to the finder, even though he or she has not been mityaesh.  

    With this idea in mind - let us return to the gemara'a argument.  The gemara argues that the two halakhot of hashavat aveida must be parallel.  Just like simanim do not matter in the case of "lost to all" and the finder always can keep the lost item, so too must we say that the absence of simanim does not matter in a case of "lost to the owner," in which there is a mitzva of hashavat aveida.  But when do we have a case of no simanim in which there is no yeush?  According to Abaye we do - the yeush she-lo mi-da'at scenario in which an object that has no simanim is found before the owner discovers the loss.  In that situation, hashavat aveida applies, since the object is only "lost to the owner," despite the fact that it has no simanim.  According to Rava, hashavat aveida would apply to such a case since there is automatic yeush in the absence of simanim.  Rava is then left with a difficulty - the "lost to all" and "lost to the owner" cases are not parallel:  The finder's keepers of "lost to all" applies irrespective of simanim while the "return the object" of "lost to the owner" applies only to objects with simanim

    If you recall the discussion from shiur #3, the gemara here is essentially rejecting the principle which we laid out there as underlying Rava's position.  There we explained that according to Rava, we view yeush as a legal principle that is determined by the nature of the lost object:  objects that are in principle unreturnable, i.e., that do not have simanim, are defined as subject to yeush.  The focus, according to Rava, is on the object rather than the owner's psychological state.  The baraita quoted here essentially asserts an alternative principle.  There is an object oriented principle:  "lost to all - lost to the owner" but it is not about simanim.  The fact that the Torah does not distinguish between objects with simanim and those without teaches us that simanim can only be indicators of the psychological state of yeush and cannot stand alone to define the legal status of the object.

In the text, we have explained the gemara's rejection of Rava more or less according to Rashi.  This explanation is founded on the understanding of the halacha of 'lost to all' as not based upon yeush.  Rather, it is a case of a gezeirat ha-katuv גזירת הכתוב, literally a "decree of the Writ", a law commanded by the Torah (as interpreted by the Sages) for which there is no given logical explanation.  Perhaps the whole notion of ownership is no longer applicable to an object that no one can access.  In any case, the gemara's argument, according to Rashi, depends upon interpreting the verses about hashavat aveida to be focused on a scenario in which yeush does not take place.  

    Ramban (R. Moshe ben Nachman, 1194-1270, Spain) and Rashba (R. Shlomo ben Aderet, 1235-1310 Spain) offer a different take on the gemara.  They gloss the text without the comparison between the forbidden and permitted (line 8 in the schematic analysis) and place the "tiyuvta de-Rava tiyuvta" (Rava is refuted)  immediately following the baraita.  They claim that the gemara's argument is as follows:  The baraita teaches us that when the Torah emphasized that hashavat aveida applies only when the object is "lost to him" (the owner), it implies that in all cases of "lost to all" the finder may keep the lost object.  As opposed to Rashi, who views this reading of the verse as a gezeirat hakatuv גזירת הכתוב, Ramban and Rashba understand the insight of the baraita to be that in cases of "lost to all", even yeush she-lo mi da'at works.  From the fact that the Torah needed to teach us specifically that yeush she-lo mi-da'at works in cases of "lost to all", we can draw the conclusion that it does not work ordinarily; i.e., in case where it is "lost to the owner."

    The difference between the two readings is significant.  According to Rashi, "finder's keeper's" is the rule in all "lost to all" cases, even when there is explicit evidence that the owner was not mityaesh.   According to Ramban and Rashba, the finder is allowed to keep the lost object even when it is 'lost to all', only because of yeush.  If the owner can show that he or she was not mityaesh, he or she could claim the object.     

    Upon concluding that Rava has no response to the challenge posed by the baraita about "lost to all," the gemara explicitly rules according to Abaye.  Moreover, we learn that the halakha follows Abaye in six cases, designated by the acronym YAL KGM יע"ל קג"ם.  The yod stands for our sugya, of Yeush she-lo mi-da'at.  Anyone interested in seeing what the other cases are should look in Rashi s.v. "ya"l ke-ga"m יע"ל קג"ם".  This ruling is of far-reaching halakhic significance mostly for what it does not say. There are hundreds of makhlokot between Abaye and Rava throughout the Talmud and the halakhic decisors have understood that the ruling is like Abaye only in these six cases.  In all the other cases, we rule like Rava.

    We have now successfully (I hope!)concluded the long sugya of yeush she-lo mi-da'at.  Unlike most Talmudic sugyot (pl. of sugya) the gemara states an explicit ruling.  As we will see, this is the exception rather than the rule and most makhlokot were not explicitly resolved in the text of the gemara.  The extraction of halakhic rulings from the gemara was a main focus of the generations after the gemara, but more on that another time.  

         

Schematic Analysis #8

Schematic analysis from 22a "Ta shema odehu ha-tal...ת"ש עודהו הטל"  until 22b "... beya'a"l kega"m ביע"ל קג"מ,."

Translation of gemara Schematic Analysis Text of gemara 22a

1.  Ta Shema: While the dew is still upon them, and [the owner] is pleased,  then be-khi yutan  applies to it.  When they (the grain or produce) have dried, even though [the owner] is [now] pleased, be-khi yutan does not apply.

Prooftext that supports one side of the makhloket.

1.  תא שמע: עודהו הטל עליהן ושמח הרי זה +ויקרא י"א+ בכי יתן. נגבו אף על פי ששמח - אינן בכי יותן.י

2.  Why (lit. What is the reason?) Is it not that we do not say, since we have revealed that he is pleased now,  it is as if he had been pleased originally'? 

Explanation how the prooftext challenges one position.

2.  טעמא מאי? לאו משום דלא אמרינן, כיון דאיגלאי מילתא  דהשתא ניחא ליה, מעיקרא נמי ניחא ליה? י

3.  There it is different: It is written, 'If one puts' -  [which means] when he puts [the water on].  Refutation explaining how the halakha of the prooftext is different from the subject at hand.

3.  שאני התם, דכתיב כי יתן - עד שיתן. י

4.  If so, this should apply also to the reisha?   Difficulty with the refutation in that in gives rise to an inconsistency in the reisha of the prooftext

4.  אי הכי, רישא נמי!י

5.  There (the reisha)[can be explained] according to R. Papa.

Explanation of the reisha in a way that is consistent with the refutation.

5.  התם כדרב פפא.י

6.  For Rav Papa pointed out a contradiction: It is written, 'If one puts'. and we read, 'If it be put'.  How is it to be explained? We require that 'being' (i.e. being wet) be like 'putting' [water or other liquid]: Just like 'putting' can only be done with knowledge (i.e. intentionally), so too 'being put' must happen with knowledge (i.e. with the agreement of the owner person).

Elaboration of said explanation.

6.   דרב פפא רמי: כתיב כי יתן וקרינן כי יותן, הא כיצד? בעינן, כי יותן דומיא דכי יתן; מה יתן לדעת - אף כי יותן נמי לדעת.

7.  Ta shema:  R. Yohanan said in the name of R. Ishmael  b. Jehozadak: From where[do we learn] that an article lost through the flooding of a river is permitted [to the finder]? It is written (Devarim 22:3) "And so shall thou you with his ass; and so shall you do with his garment; and so shall you do with every lost thing of your brother's, that is lost to him, and you have found."  [implying:] that is lost to him and may be found by any person [must be returned,] excluding [a case like] this, that is lost to him and may not be found by any person.

Prooftext that supports one side of the makhloket.

7.  תא שמע, דאמר רבי יוחנן משום רבי ישמעאל בן יהוצדק: מנין לאבידה ששטפה נהר שהיא מותרת - דכתיב (דברים כ"ב:ג) "וכן תעשה לחמורו וכן תעשה לשמלתו וכן תעשה לכל אבידת אחיך אשר תאבד ממנו ומצאתה" - מי שאבודה הימנו ומצויה אצל כל אדם, יצאתה זו שאבודה ממנו, ואינה מצויה אצל כל אדם.  י

8.  [Moreover], the object which is forbidden [to be kept by the finder] must be like the object which is permitted [to be kept by the finder]: Just as the permitted object may be kept irrespective of whether it has a siman or not, so the forbidden object  may not be kept irrespective of whether it has an identification mark or not.  [This is] a complete refutation of Raba Explanation how the prooftext challenges one position and conclusion that there is no refutation.

8.  ואיסורא דומיא דהיתירא, מה היתירא - בין דאית בה סימן ובין דלית בה סימן שרא, אף איסורא - בין דאית בה סימן ובין דלית בה סימן -  אסורה. תיובתא דרבא, תיובתא.

9.  And the law is in accordance with Abaye in [the cases indicated by the initials] Y'AL KGM. General principle in deciding makhlokot between Raba and Abaye.

9.  והלכתא כוותיה דאביי ביע"ל קג"ם. י

 

Selections from Rashi daf 22b

Translation

Rashi Text

la-da'at, with his knowledge - that he [the owner] be aware of the presence of the water (on the food) and approve of it.  So long as the dew is on them[the seeds], [we may regard] it is still [as if] he placed it. 

לדעת - שידע בנתינה, והוכשר בעיניו, ועודהו הטל עליהן עדיין הן בנתינתו. 

Y'A"L KeGa"M - they (the letters) are an acronym for different halakhot:  Yeush she-lo mi-da'at here, [the sugya of] a false witness is invalidated retroactively in [tractate] Sanhedrin (27a), [the sugya of] the board which stands by itslelf in [tractate] Eruvin (15a), [the sugya of] kidushin (betrothal) that does not lead to a sexual relationship in [tractate] Kidushin (51a), [the sugya of] revelation of intention regarding a bill of divorce in [tractate] Gitin (34a), [the sugya of] the validity of the testimony of an apostate who eats non-kosher food as a provocation in [tractate] Sanhedrin (27a). 

יע"ל קג"ם - סימני הלכות הן: יאוש שלא מדעת דהכא, עד זומם למפרע הוא נפסל בסנהדרין (כז, א), לחי העומד מאיליו בעירובין (טו, א), קדושין שלא נמסרו לביאה בקדושין (נא, א), גלוי דעתא בגיטא בגיטין (לד, א), מומר אוכל נבילות להכעיס פסול לענין עדות בסנהדרין (כז, א).

 

Key Gemara Terms

iglaei milta - the matter is revealed, understood

נגלה הדבר

אגלאי מלתא

be-khi yutan - lit. "if it is put."  Reference to Vayikra 11:38 - "If any water is put upon seed, and any part of their carcass fall on it, it shal be tamei (impure) to you." 

To say something is "be-khi yutan" is to say that it has come into contact with liquid under the appropriate circumstances such that is is now "mukhshar le-kabel tum'ah"  מוכשר לקבל טומאה, i.e., it is now capable of becoming tamei (ritually impure). 

בכי יותן

dumya - [it is] similar

דומה

דומיא

hashta - now

עכשיו

השתא

kavatei - according to him

כמו, בשיטתו

כוותיה

me-ikara - originally, initially

מההתחלה

מעיקרא

rami - points out or sets up a contradiction.

מנגיד

רמי

tiyuvta, itotiv - refutation, has been refuted. tiyuvta de-Rava tiyuvta תיובתא דרבא תיובתא means that this is a conlusive refutation of Rava's position.

 

תיובתא, איתותיב

General vocabulary

iglaei milta - the matter is revealed, understood

נגלה הדבר

אגלאי מלתא

be-khi yutan - lit. "if it is put."  Reference to Vayikra 11:38 - "If any water is put upon seed, and any part of their carcass fall on it, it shal be tamei (impure) to you." 

To say something is "be-khi yutan" is to say that it has come into contact with liquid under the appropriate circumstances such that is is now "mukhshar le-kabel tum'ah"  מוכשר לקבל טומאה, i.e., it is now capable of becoming tamei (ritually impure). 

בכי יותן

dumya - [it is] similar

דומה

דומיא

hashta - now

עכשיו

השתא

kavatei - according to him

כמו, בשיטתו

כוותיה

me-ikara - originally, initially

מההתחלה

מעיקרא

neicha lei - it is pleasing to him, it is in his interest

נוח לו

ניחא ליה

rami - points out or sets up a contradiction.

מנגיד

רמי

tiyuvta, itotiv - refutation, has been refuted. tiyuvta de-Rava tiyuvta תיובתא דרבא תיובתא means that this is a conlusive refutation of Rava's position.

 

תיובתא, איתותיב