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In our recent Chat room we explained a related issue, one of "yi'ush" - despair. In effect, we say an object which is found in a public area may have an owner, but we believe that the owner despairs of ever retrieving it. Examples include something which has washed up on shore or something which is found in the trash, or something which has no unique markings.

Why are we worrying this so much, or, as Werner asked in the recent Chat Room session, why don't we just simplify the whole process and say "Seeing is enough"?

I think the core of the answer lay in the Talmudic mindset of the Hakhamim, who were not only out to solve a problem, but create a model world based on the underlying truth of the Torah.

I mentioned in my last mailing that the Rabbis of the Talmud believed in a "Unified Field Theory", that is, the one truth which underlies and unifies the whole Torah. In fact, the Rabbis believed that this Unified Field underlies everything in life. In effect, all our actions are to be attuned to this oneness, ritually, morally and socially, every day of our lives. So when the Torah says that when we find a lost object we have to return it to the owners we have to model our lives according to the Torah. But in a practical world, that can't always be expected. Therefore, they wrestled with finding a way to reconcile practicality with the Torah's morality.

In effect, this is one of the issues discussed in last Monday's Chat Room:

Sslivko:…How do we know an object which was once owned is now ownerless?

Ilan: the Talmud explains a number of steps that some one must take if he found an object in order to become the owner

Werner: Which are...

Ilan: Going to "even hato'an" ["The Claiming Stone", a "Lost & Found" which was located in the Temple. The site was chosen because it was presumed that an owner looking for his lost object would visit the Temple for one of the pilgrimage festivals, or "regalim", at least once in a year. If he didn't claim it within a year cycle of festivals, the object was considered ownerless] in the regalim to announce it

Werner: Does that mean that the case in the Mishnah took place after it was announced at the even hatoan?

Sslivko: Could there have been times when it wasn't even necessary to go up to the even hatoan.

Werner: I suppose if it was clear (or pretty clear) that there was no way to return it to the owner

Ilan: e.g when there where no markings on the object I believe the Talmud talks of fruit in this matter

Sslivko: Yes, that is critical to our understanding of the first half of the Mishnah (presuming, as the Gemara does, that the Mishnah talks about two different circumstances, one of finding a lost object, one of a mistaken sale.) There is, however, another consideration which is also related to the topic of fruit as mentioned later in Bava Metzia 21a. What other qualification is possible in our case or in a similar case so that we do not have to go to the even?

Ilan: Also if the object is found in a place where one does not normally lose things like a place where people throw trash

Sslivko: Right. Which means that when the owner loses it, he believes he will not get it back. This is called yi'ush, or despair. For example, if we find something which has washed up on shore, we can feel reasonably assured that the owner lost hope of ever finding it again, thinking that it has washed out to sea, or irretrievably lost. These circumstances are what lay behind our Mishnah. In addition, the Mishnah here can only be understood as an outgrowth of the Mishnah in the second perek which explains which lost objects we presume are really lost, namely that the owner despairs of ever seeing it again.

Continuation of the Gemara, Bava Metzia, 2b-3a

[We have just explained that the Mishnah, rather than superfluously describing two cases, concisely described what procedure to follow in two instances in which we could not determine ownership. The first instance is one in which two people claim to have found the same object and the other where two people claim to have bought the same object. And, as the Gemara says, both are sufficiently different so that we could not have inferred one from the other. The Gemara now tries to explain the less obvious instance of sale in which two buyers think they made the purchase. The translation follows Steinsaltz]

Gemara: If the Mishnah is dealing with buying and selling, go see whose money the seller took? [Then we don't need any procedure]. No, we do need it, because he took it from both, from one he took willingly, from one he took it unwillingly, and we do not know from who he took it willingly and from whom he took it unwillingly.

[Now that we have determined that both instances are truly instances where we have no proof as to who has the better claim, the Gemara tries to find the underlying "klal" or principle of the Mishnah. Our Mishnah is a "stam" or anonymous Mishnah. The Amoraim of the Gemara believe that the Hakhamim of the Mishnahwere consistent in their beliefs, and if we can find out whose thoughts the Mishnah reflects, we can come to a closer appreciation of what it really says.]

Gemara: Shall we say the Mishnah is not in accordance with Ben Nannas. For if it were in accordance with Ben Nannas, doesn't he say elsewhere "How can both take an oath, surely one or the other will come to swear falsely?"

[cited from the Mishnah in Shavuot, 7:5. There, an employer tells his employees to go to a certain storekeeper and receive his wages in goods which will be charged to the employer's account. Afterwards, the employees claim they never received the goods while the storekeeper claims he gave the goods to the employees. The Hakhamim say the storekeeper swears he gave them the goods and it is charged to the employer's account; the employees must swear that they did not receive the goods, and then the employer pays them their wages. Ben Nannas says in that case, surely one of them will be swearing falsely. Therefore, neither swear and each receive what they claimed is owed to them without an oath. ]

You can even say the Mishnah goes according to Ben Nannas. In the Mishnah there, there is certainly a false oath. In our Mishnah here, you could say there is no false oath because the two may have picked up the garment at the same time.

[This is the Gemara's first attempt at finding an author for our Mishnah. What emerges is the realization that it's possible neither is lying , but each described reality as he saw it. The Gemara continues…]

Then say the Mishnah is not like Summakhos? For if the Mishnah were like Summakhos, doesn't he say "Money [whose ownership is] placed in doubt is divided between the claimants without an oath"? [ from Bava Kamma 46a, where a dead newborn calf is found next to an cow which has been gored by someone's ox. We do not know if the cow miscarried as a result of the accident or before. Summakhos says we divide the value of the calf between the owner of the cow and the owner of the ox. The Rabbanan say the owner of the cow has to prove calf was stillborn as a result of the damage from the ox.] Then you're saying the Mishnah follows the Rabbanan who argue with Summakhos. But don't they say "The burden of proof is on whoever tries to take the money out of someone else's property." [and here nobody needs to bring proof]

What is this! According to the Rabbanan, there, where both are not holding they say "The burden of proof is on whoever tries to take the money out of someone else's property." Here where both are holding, we divide it with an oath. But if you say Summakhos, there if neither hold on to the object we divide with no oath, here where both are holding on, how much more so! But you can even say it follows Summakhos. When does Summakhos says divide without an oath, when it's an instance of "shema and shema" - perhaps and perhaps [that is, when even the claimants don't know whose it is and make no claim with certainty], but in a case "bari and bari - certain and certain he does not say divide it without an oath.

But according to Rabbah bar Rav Huna who says Summakhos holds his view even in a case of "certain and certain" what can we then say?

3a
Even then, we can say our Mishnah is in accordance with Summakhos. Summakhos stated his view in a case where there was an external doubt about the money[ that is, where there is doubt about the ownership independent of the claims]. Here, where there is no external doubt about the money, [the claims of the two put the object in doubt] he does not apply his view.

With this we finish our review of the Talmud in Bava Metzia. We will post the text and questions in the Forum as well. Please join us in the Talmud chat this Sunday at 4:00 PM Jerusalem time (We change the clocks this week, so we will be 7 hours ahead of the east coast United States.) I look forward to seeing you on line.

Questions:

1. We've said an object becomes ownerless after the owner's yi'ush. (We say, in Hebrew, he is "mitya'esh". The Gemara in the second chapter discusses the issue of "yi'ush shelo mida'at"t", that is, when the owner loses something which he can never retrieve but doesn't yet realize he lost it. Is it considered ownerless or not?
2. The instance in Shavuot in which Ben Nannas appears seems unfair. If we read it as is, it seems as if we penalize the owner. Why should the owner on the account of a someone who is clearly not telling the truth?