Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 10a

our Mishnah would then be in accord with the Rabbis.¹  But if you say that the difference of opinion concerns [a case where] a rich person [gleaned] for a poor person, but that all agree [in the case] of a poor person [gleaning] for a poor person that one transfers possession upon the other, with whose view is our Mishnah in accord? It agrees neither [with the view of the Rabbis nor with [that of] R. Eliezer!²  — He ['Ulla] answered him: Our Mishnah speaks of [a case] where [the person who picked up the article] said: [I took possession of it] first.³  This also stands to reason! Since the second clause teaches: IF AFTER GIVING IT TO HIM, THAT PERSON SAYS: 'I ACQUIRED IT FIRST,' THERE IS NOTHING IN WHAT HE SAYS, what need is there to state FIRST in this second clause? Surely even if he did not say FIRST [it would be assumed that] he meant 'FIRST'?⁴  It must therefore be concluded that it was intended to let us know that in the first clause also he stated 'first'.⁵  And the other?⁶  The wording of the second clause is intended to throw light on the first: In the second case he said 'FIRST' but in the first case he did not say 'first'.⁷

Both R. Nahman and R. Hisda Say: If a man lifts up a found object for his neighbour, the neighbour does not acquire it.⁸  For what reason? Because it is like one who seizes [a debtor's property] on behalf of a creditor, thereby causing loss to [the debtor's] other [creditors],⁹  and one who seizes [a debtor's property] in behalf of a creditor, causing loss thereby to [the debtor's] other [creditors], does not acquire [the property].¹⁰  Raba asked R. Nahman: [A Baraitha teaches:]¹¹  A labourer's find belongs to himself. This decision only applies to a case where the employer said to the labourer: 'Weed for me to-day', [or] 'Hoe for me to-day.'¹²  But if he said to him: 'Do work for me to-day.' the labourer's find belongs to the employer!¹³  — He [R. Nahman] answered him: A labourer is different, as his hand is like the hand of his employer.¹⁴  But does not Rab say: 'The labourer may retract even in the middle of the day? — He [R. Nahman] answered him [again]: Yes, but as long as he does not retract [and he continues in the employment] he is like the hand of the employer. When he does retract [he can withdraw from the employment] for another reason,¹⁵  for it is written: For unto me the children of Israel are servants; they are My servants¹⁶  — but not servants to servants.¹⁷

R. Hiyya b. Abba said in the name of R. Johanan: If one lifts up a found object for his neighbour, the neighbour acquires it. And if you will say: Our Mishnah [differs]!¹⁸  — [it is because our Mishnah deals with a case] in which he said, 'Give me it,' and did not say, 'Acquire it for me.'¹⁹

MISHNAH. IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO HAS SEIZED IT IS ENTITLED TO ITS POSSESSION.

GEMARA. Resh Lakish said in the name of Abba Kohen Bardala: A man's four cubits acquire [property] for him everywhere. For what reason? — The Rabbis instituted [this law] in order that people might not be led to quarrelling.

Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] Pe'ah. Raba said: R. Jacob b. Idi raised an objection from the [tractate of] Nezikin.²⁰  Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] Pe'ah:²¹  If he [a poor man] takes part [of the gleanings] of the corner [of a field] and throws it over the rest [of the gleanings],²²  he cannot claim anything. If he falls Upon it, [or if] he spreads his garment upon it, he may be removed from it. And the same [law applies] to a forgotten sheaf.²³  Now if you say that a man's four cubits acquire [property] for him everywhere, let the four cubits [of the poor man] acquire for him [the gleanings on which he fell]! — Here we deal with a case where the man did not say. 'I wish to acquire it.' But if the Rabbis instituted [this law], what does it matter if he did not say, ['I wish to acquire it']? — Since he fell [upon it], he made it clear that he wished to acquire it by falling [upon it]²⁴  but did not wish to acquire it by means of [his four cubits].

1. [Who disregard the potential miggo and do not admit the argument. 'Since the person who picked up the article for the rider could, if he had wished, have picked it up for himself, he may also confer possession of it upon his neighbour.' The latter therefore can rightly retain the article if he wishes to do so. At this stage the Gemara presumes that he had originally picked up the article for the rider, but that he subsequently refused to hand it over to him.]
2. For it would appear from our Mishnah that one cannot ordinarily acquire an object for someone else, and the only way in which one can confer upon the other the right of possession is by handing the object over to him.
3. The reason why the rider cannot claim the found object unless it has been handed over to him is that the other person claims to have picked it up straight away for himself. But if the other person had picked it up for the rider it would have belonged to the latter straight away, for we say that since, if he had wished, he could have taken possession of it for himself, he may also take possession of it for his neighbour.
4. When he claims the article after handing it over, he must surely mean that he acquired it first for himself. There would be no sense in his claim that he acquired it for himself after he disposed of it to the rider.
5. I.e., that the person who picked it up maintained that he took possession of it for himself right at the beginning. And the last clause teaches us that even if he claims to have picked it up for himself straightaway, his plea is not accepted, for by handing over the article to the rider he made it clear that he originally meant to acquire it for that person.
6. R. Nahman — what is his view regarding the use of the word FIRST in the second clause?
7. The use of the word FIRST in the second clause makes it clear that it was intentionally excluded from the first clause. [For there, even if he did not say 'first', but picked it up for the rider, the rider would still have no claim to it until it had been delivered to him.]
8. Cf. Bezah, 39b.
9. The person who lifts up a found object for someone else does not benefit himself, and he deprives other people of the chance of finding and acquiring the object. He is therefore like a person who comes and seizes a debtor's property for the benefit of a creditor, thus depriving other creditors of the chance of recovering their debt.
10. As the creditor in whose behalf he seized the property had not authorised this man to act on his (the creditor's) behalf his intervention is illegal and constitutes an infringement of the rights of the other creditors (Rashi). [According to Tosaf, the same law would apply even where he had been authorized by the creditor. V. Keth. 84b; Git., 113.]
11. V. infra 12b; 118a,
12. As the work which the labourer is to do for the employer is specified it cannot include anything else, not even finding and acquiring an ownerless object. If the labourer has spent any time in finding and acquiring the object, the employer may deduct payment for the time lost, but he cannot claim the object.
13. Since the work is not specified it includes anything that the labourer may do during the time of his employment, so that the object that he finds and acquires during that time belongs to the employer. This would show that when one lifts up a found object for his neighbour the neighbour acquires it — in contradiction to R. Nahman and R. Hisda.
14. The employer's right to the object found by his employee has nothing to do with the question whether one may acquire an object for a neighbour, as in the case of the employer the reason why he is entitled to the object found by his employee is that during the time of the employment the employee belongs to the employer, and anything that the former acquires during that time belongs to the latter.
15. The fact that the labourer may terminate the employment any time he likes does not imply that he does not belong to the employer while the engagement lasts and that he can acquire a found object for himself during that time. There is another reason for the right conceded to the employee to terminate his engagement whenever he likes.
16. Lev, XXV, 55.
17. The freedom of the individual ought not to be jeopardised by an engagement which is to bind the employee to work for the employer against his own inclination, as if he were the employer's chattel, Cf. B.K. 116b.
18. In that it says that the person who picked up the object and said, 'I took possession of it,' acquired it for himself, even though he acted for the rider who told him to give it to him.
19. Had the rider said: 'Acquire it for me by picking it up on my behalf' the object would have belonged to the rider. By saying: 'Give it to me,' the rider made it clear that the found object was to become his only when it was handed over to him. The other person is therefore entitled to keep the object.
20. The three 'Babas' ('Gates': Baba Kamma, Baba Mezi'a, and Baba Bathra), formed originally one tractate, which was called 'Nezikin'.
21. Ch. IV, Mishnah 3.
22. In order to acquire it by this act.
23. V. Deut. XXIV, 19.
24. He preferred to acquire the gleanings by the act of falling upon them, believing that this would be legally more effective than the claims of the four cubits sanctioned by the Rabbis, And as he did not intend to exercise the right afforded him as regards the four cubits, the right lapsed, and there was nothing in his action of throwing himself upon the gleanings to entitle him to claim their possession.

R. Papa said: The Rabbis instituted [the law of the] four cubits only in a public place.¹  but the Rabbis did not institute [such a law] in a private person's field.²  And although the Divine Law gave [the poor person] a right therein, it gave him the right to walk in it and glean its corners, but the Divine Law did not give him the right to regard it as his ground.³  Raba said: R. Jacob b. Idi raised an objection from [the tractate of] Nezikin: IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO SEIZED IT IS ENTITLED TO ITS POSSESSION — now if you will say [that] the four cubits of a person acquire for him [an ownerless object] everywhere, let his four cubits acquire it for him [in this case also]? — Here we deal [with a case] where he did not say, 'I wish to acquire it.' But if the Rabbis instituted [the right of the four cubits], what does it matter if he did not say it? — As he fell [upon the object] he made it clear that he wished to acquire it by falling [on it] but did not wish to acquire it by means of the four cubits. R. Shesheth said: The Rabbis instituted [the law of the four cubits] in regard to a side-street, which is not crowded, [but] in regard to a high road, which may be crowded, the Rabbis did not institute [this law]. But does it not say 'everywhere'? — [The term] 'everywhere' is to include the [ground on both] sides of the high road.⁴

Resh Lakish said further in the name of Abba Kohen Bardala: A girl who is [still] a minor⁵  has neither the right [to acquire, an object by means] of her 'ground'⁶  nor the right [to acquire an object by means] of her 'four cubits'.⁷  But R. Johanan said in the name of R. Jannai: She has the right, both in regard to her ground and in regard to her four cubits. Wherein do they differ? — One⁸  is of the opinion that [the scriptural term] 'ground'⁹  is included in her 'hand'; just as her 'hand' acts for her, so her 'ground' also acts for her. But the other¹⁰  is of the opinion that 'ground' [acts] In the capacity of 'agent';¹¹  and as she has not the power [while she is a minor] to appoint an agent to act for her¹²  neither can her 'ground' act for her. But is there anyone who says that 'ground' is regarded as 'agent'? Was it not taught: [If the theft be found at all] in his hand [alive];¹³  — [from this] I would gather [that the law applies] only [when it is found in] 'his hand': how do we know that the same law applies [when the theft is found on] his roof, in his court-yard and in his enclosure?¹⁴  Because we are told: [If the theft] 'be found at all',¹⁵  [which means]: 'wherever [it may be found].'¹⁶  Now if your view is that 'ground' [acts] because it is regarded as agent, then we must conclude [that there] is an agent for a sinful act,¹⁷  whereas it is held by us¹⁸  that there is no agent for a sinful act?¹⁹  — Rabina answered: We say 'there is no agent for a sinful act' only when the agent is subject to the law prohibiting the act, but in regard to [a thief's] 'ground', which cannot be said to be subject to the law prohibiting the act [of stealing] the responsibility [does not lie with the agent, but it] lies with the originator [of the deed]. But if so — what if one says to a woman or a slave: 'Go and steal for me,' seeing that they are not subject to the law prohibiting the act [of stealing].²⁰  does the responsibility in this case also lie with the originator [of the deed]? — I will tell you: A woman and a slave are subject to the law prohibiting [theft], only they are temporarily unable to pay,²¹  as we learnt: When the woman has been divorced and the slave set free, they are obliged to pay.²²  R. Sama said: When do we say, 'there is no agent for a sinful act'? — [Only in a case] where [the agent is at liberty to choose: to] do it if he wishes, and not do it if he does not wish. But in regard to a 'ground' [where. e.g., a stolen animal is found], seeing that it has no will but must receive [what is deposited therein, the responsibility lies with the originator [e.g., of the theft]. Wherein do they differ?²³  — They differ [in the case where] a priest says to an Israelite: 'Go and betroth for me a divorced woman'²⁴  or [where] a man says to a woman:²⁵  'Cut around the corners of the hair of a minor:'²⁶  according to the version which says that whenever [the agent has the choice to] do it if he wishes, and not to do it if he does not wish, the responsibility does not lie with the originator; here also he has the choice to do if he wishes and not to do it if he does not wish, [and therefore] the responsibility does not lie with the originator. But according to the version which says that whenever the agent is not subject to the law prohibiting the act, the responsibility lies with the originator, in these [cases] also, seeing that [the agents] are not subject to the laws prohibiting the acts, the responsibility lies with the originators. But is there anyone who says that 'ground' is not included in [the term] 'hand'? Has it not been taught: [And he shall give it] in her hand²⁷  — from this I would learn only that 'her hand' acts for her. How do we know [that] her roof, her courtyard and her enclosed space [also act for her]? Because the Scriptural verse emphasises, 'And he shall give', [which implies that he may give it to her] anywhere.?²⁸  With regard to a divorce there is no difference of opinion [and all agree] that 'ground' is included in her 'hand'. The difference of opinion exists only as regards a found object: One²⁹  is of the opinion that

1. Such as a high road, a public thoroughfare, or a lane, a side-street and an alley adjoining an open space — places that are open to everybody.
2. Where, having regard to the limited space, it is impossible to assign to each person four cubits.
3. For the purpose of acquiring an object situate on that ground.
4. But not side-streets and alleys.
5. Cf. Keth. 39a.
6. Lit. 'Court'.
7. Therefore, if she is married, the husband cannot divorce her by throwing the bill of divorcement into her court or into the space constituting her four cubits in a public place, although in the case of a wife who has attained her majority (cf. Keth. 39a) this would be a valid way of effecting her divorce (cf. Git. 78a).
8. R. Johanan.
9. Used in Deut, XXIV, 1: that he writeth her a bill of divorcement, and giveth it in her hand. cf. Git. 77b. That the term 'hand' means also 'possession' may be gathered from Num, XXI, 26.
10. Resh Lakish.
11. Not because it is like her 'hand' and thus 'acts' automatically, but because the ground stands to her in the relation of a messenger to the sender, or of an agent to the originator of a deed, for which a free will or a sense of legal responsibility is required. A minor cannot therefore be represented by such an agent. The right of an adult person, whether man or woman, to act through a messenger, or agent, as regards marriage and divorce, is derived from Deut, XXIV, 1. v. Kid. 41a.
12. Only a 'man' and a 'woman' can appoint agents to act for them, but not a minor. Cf. Kid. 42a.
13. Ex, XXII, 3.
14. I.e., that one is guilty of theft if an animal walks into an enclosed space belonging to him, and he locks it in.
15. The emphatic term [H] is taken to indicate: 'wherever it may be found'.
16. Cf. infra 56b; B.K. 65a; Git, 77a.
17. That the responsibility for the act rest upon the principal originator, who instructed the agent, and not upon the agent who carried out the instruction. The sinful act in this case is the act of stealing the animal.
18. V. Kid. 42b.
19. I.e., if one commits an illegal act on the instruction of someone else the guilt rests upon the performer of the act, and not upon the one who gave the instruction, as each person is bound to obey the law given by the Supreme Master, and one has no right to carry out the instruction of another person if it is contrary to the divine Law.
20. At least so far as the penalties involved are concerned, as they are unable to pay. Cf. B.K. 87a.
21. The married woman cannot pay because she cannot dispose of her property without her husband's consent, and the slave because everything he has belongs to his master,
22. For an injury they caused in their previous state, while they were unable to pay (B.K. 87a).
23. What practical difference is there in the views expressed by Rabina and R. Sama?
24. A priest may not take to wife a divorced woman. (Lev. XXI, 7.) Betrothal marks the two parties concerned husband and wife.
25. A woman is not subject to the prohibition of rounding the corners of the head (Lev. XIX, 27) as she is not subject to the prohibition contained in the second half of the same Biblical verse, neither shalt thou mar the corners of thy beard. Cf. Kid. 35b; Naz. 57b.
26. A minor is mentioned for the reason that an adult will not allow anyone to round the corners of his head, as the Biblical prohibition applies to 'rounding' as well as to 'being rounded'.
27. Deut. XXIV, 3.
28. The term [H] 'and he shall give' is taken as having no exclusive reference to the following word [H] ('in her hand'). Had the emphasis been restricted to 'in her hand' the term used would have been [H] (Rashi). The inference therefore is that any place belonging to her, i.e. her 'ground', is as good as her 'hand', and not because the place is her 'agent', for the fact that the woman can appoint an agent in connection with either marriage or divorce is already indicated in this verse by the word [H] 'he shall send her' (cf. Kid., 41a), and need not be indicated again by [H]. Git. 77a.
29. R. Johanan.