Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 12a

[A person's] 'ground' [acts for him because] it is included in [the term] 'hand', and is no less effective than a [human] agency: In the case of a bill of divorcement, where the agency would work to her disadvantage, [we say that] one may not do anything to a person's disadvantage except when the person is present. But in the case of a gift, where the agency would work to the advantage [of the recipient, we say that] one may do something to a person's advantage when the person is absent.¹

[To revert to] the above text: 'IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE etc. R. Jeremiah said in the name of R. Johanan: This is provided that if he runs after them he can reach them. R. Jeremiah asked: What [is the law] in [the case of] a gift? R. Abba b. Kahana approved of the [distinction implied in the] question [and answered]: 'Even though if he runs after them and cannot reach them.' Now, Raba asked:²  If one throws [away] a purse through one door and it falls through another door,³  what is the law? [Do we say that even] when a thing does not come to rest in the air it is regarded as being come to rest there,⁴  or not? — R. Papa said to Raba, (and according to some R. Adda b. Mattena said to Raba, while according to others Rabina said to Raba): Is not this the same as [the case in] our Mishnah: IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE [etc.]. and R. Jeremiah said in the name of R. Johanan: 'This is, provided that if he runs after them he can reach them', and R. Jeremiah asked: 'What is the law in the case of a gift?' and R. Abba b. Kahana approved of the [distinction implied in the] question [and answered]: 'Even though if he runs after them and cannot reach them'?⁵  [Raba] answered him: You speak of [a case where the objects were] moving [on the ground]: moving [on the ground] is different, as it is like resting.⁶ 

MISHNAH. AN OBJECT FOUND BY A MAN'S SON OR DAUGHTER WHO ARE MINORS,⁷  OR BY HIS CANAANITE BONDMAN OR BONDWOMAN,⁸  OR BY HIS WIFE,⁹  BELONGS TO HIMSELF. AN OBJECT FOUND BY HIS SON OR DAUGHTER WHO ARE MAJORS, OR BY HIS HEBREW MANSERVANT OR MAIDSERVANT, OR BY HIS WIFE WHOM HE HAS DIVORCED, ALTHOUGH HE HAS NOT PAID [HER THE AMOUNT DUE TO HER ACCORDING TO] HER MARRIAGE-CONTRACT, BELONGS TO THE FINDER.

GEMARA. Samuel said: For what reason has it been laid down that an object found by a minor belongs to his father? Because when he finds it he brings it hurriedly to his father¹⁰  and does not retain it in his possession. Shall we then say that Samuel is of the opinion that a minor has no right to acquire anything for himself [and that this is] in accordance with Biblical law? Surely it was taught: If one hires a labourer [to work in his field] the son [of the labourer] may gather the gleaning behind [his father]?¹¹  [But if the labourer receives] a half or a third or a fourth [of the crops as wages] his son may not gather the gleaning behind him.¹²  R. Jose says: In either case his son and his wife may gather the gleaning behind him.¹³  And Samuel said: The halachah is like R. Jose. Now it is all well if you say that a minor has a right to acquire things for himself in accordance with Biblical Law. For then his son gathers the gleanings for himself, and the father acquires it from him. But if you say that a minor has no right to acquire anything for himself, then the son must gather the gleaning for his father; but his father is rich,¹⁴  — why then may his wife and son gather the gleaning behind him? — Samuel merely gave the reason of the Tanna of our Mishnah, but he himself does not hold that view.¹⁵  And does R. Jose hold the view that a minor has a right to acquire things for himself in accordance with Biblical law? Have we not learnt: An object found by a deaf-mute, an imbecile, and a minor [may not be taken away from them as the law of] robbery is applied to them out of consideration for the public good.¹⁶  R. Jose says: It is actual robbery.¹⁷  And R. Hisda says: It is actual robbery because of an enactment by the Rabbis; the difference is as regards reclaiming the object by law?¹⁸  — Therefore Abaye said: [The field] is treated as if the last gleaners had passed through it,¹⁹  so that the poor themselves dismiss it from their minds, thinking that the son of that [labourer] would gather the gleaning.²⁰  R. Adda b. Mattena then said to Abaye: Is it permissible for a man to cause a lion to lie down in his field in order that the poor may see it and run away?²¹  — Therefore Raba said:

1. Cf. Kid. 23a and 32b; A person's 'ground' acquires for him the object given to him, if even he is not present and is not aware of the gift, because it is assumed that he agrees that the 'ground' should act for him and receive on his behalf the gift from the donor, who wishes to bestow upon the recipient the right to the possession of the object. It is different, however, in the case of a found object, as there is no one to bestow upon the claimant the right to the property, and unless he is present, or the ground where the object is found is guarded (fenced in), the 'agency' cannot take effect nor can the principle of his 'hand' be applied when he is not present (Rashi).
2. Cf. infra 102a.
3. Through the door of a house belonging to another person.
4. So that the owner of the first house could claim the purse on the ground that his premises had acquired it for him before it reached the other house. Cf. Git. 77a.
5. In which case the animal or the birds are bound to get beyond his field and land on someone else's ground. And yet the law is that he acquires the animal or birds. The owner of the first house, through which the purse passed after being thrown (away), should therefore also acquire the purse.
6. There is no comparison between the case of the purse thrown through the door of a house, and the animal or birds moving through a field, as moving on the ground is like resting on the ground, and the owner acquires the objects before they leave his field.
7. Cf. Keth. 46b.
8. Cf. Lev. XXV, 46.
9. Cf. Keth. loc. cit.
10. It is therefore assumed that when he picked up the object he did it in behalf of his father.
11. Cf. Lev. XIX, 9.
12. As he receives part of the crops he is no more poor, and he is in the same position as the owner of the field. His son is therefore not allowed to gather the gleaning for him.
13. For although the labourer is no more poor, his son and wife may still be regarded as poor, and they may gather part of the crops.
14. As he receives part of the crops.
15. He himself does not hold that an object found by a minor belongs to his father.
16. Lit. 'ways of peace'.
17. Git. 59b.
18. According to the view of R. Jose the robbed object can be reclaimed by legal proceedings. But even according to him it is not a Biblical law that a minor has a right to acquire things for himself. Consequently by gleaning after his father, and on behalf of his father (who is now rich) he robs the poor.
19. Cf. Pe'ah VIII, 1. Abaye admits that a minor has no right of possession, but he advances another reason why a minor may glean after his father: When the poor learn that the labourer in the field has a wife and children they give up hope of finding any gleanings there. The field is thus regarded as one through which the old people ([H]) have passed (old people who come last and walk slowly and haltingly, so that they cannot miss anything still left on the ground) and in which everybody is allowed to take away the gleanings — even the rich — because of the assumption that the poor are satisfied that after these last gleaners have searched the field nothing worth taking is left.
20. This is why the son may gather the gleanings for his father.
21. If the only reason why the son is permitted to gather the gleaning is that his presence serves to keep the poor away, although he is not legally entitled to glean in the field, it is like placing a wild beast in the field in order to frighten the poor people away, which is, of course, wrong.

[In this case] the right to take possession has been conceded to one who really has no such right.¹  For what reason? — [Because] the poor themselves are pleased [with this concession], so that when they are hired [as labourers] their children may also be allowed to glean after them. Now this [Samuel's view]²  differs from that of R. Hiyya b. Abba. For R. Hiyya b. Abba said in the name of R. Johanan: [By] MAJOR [we do] not [mean one who is] legally a major, nor [do we mean by] MINOR [one who is] legally a minor, but a major who is maintained by his father is regarded as a minor, and a minor who is not maintained by his father is regarded as a major.³

AN OBJECT FOUND BY HIS HEBREW MANSERVANT OR MAIDSERVANT BELONGS TO THE FINDER. Why? Ought not [the servant] to be regarded as a [hired] labourer? And it has been taught: 'An object found by a [hired] labourer belongs to himself. This is the law only when [the employer] said to him: "Weed for me today; hoe for me today," but if [the employer] said to him: "Do work for me today." the object found by him belongs to the employer'?⁴  — R. Hiyya b. Abba said in the name of R. Johanan: The servant referred to here [in our Mishnah] is one [who does highly skilled work, such as] perforating pearls, so that his master does not wish to change him over to any other kind of work.⁵  Raba says: We deal here with [a servant] who picked up a found object while doing his work.⁶  R. papa says: [The object found by the hired labourer belongs to the employer] when [the employer] hired him to collect ownerless objects, as, for instance, when a meadow was flooded with fish.⁷

What kind of a MAIDSERVANT is it [that our Mishnah speaks of]? If it is one who has grown two hairs,⁸  what business has she with him [who claims to be her master]?⁹  And if she has not grown two hairs, then if she has a father the found object belongs to her father,¹⁰  and if she has no father she should have been released on the death of the father.¹¹  For Resh Lakish said: The Hebrew maidservant gains her liberty from the master through the death of her father, which law may be derived by means of a Kal wa-homer!¹²  — But was not Resh Lakish refuted?¹³  [Yes.] But does not this [law of our Mishnah] provide an additional refutation? — No. You may assume that [our Mishnah refers to a case where] the father is alive, but the words, IT BELONGS TO THE FINDER, mean [in her case] that the master is excluded.¹⁴

AN OBJECT FOUND BY HIS WIFE [WHOM HE HAS DIVORCED], etc. If he has divorced her it is self-evident [that the object found by her belongs to her]! — Here we deal with the case of a woman who has been divorced and yet is not divorced.¹⁵  For R. Zera said in the name of Samuel: Wherever the Sages have said [that a woman is] 'divorced and yet not divorced' her husband is obliged to maintain her.¹⁶  Now the reason why the Rabbis said that an object found by a wife belongs to her husband is that he may entertain no ill-feeling towards her. Here [it is obvious that the husband] entertains intense ill-feeling towards her.¹⁷ 

MISHNAH. IF ONE FINDS NOTES OF INDEBTEDNESS CONTAINING A MORTGAGE CLAUSE PLEDGING [THE DEBTOR'S] PROPERTY, ONE SHALL NOT RETURN THEM,¹⁸  BECAUSE THE COURT WILL ENFORCE PAYMENT ON THE STRENGTH OF THEM.¹⁹  IF THEY CONTAIN NO SUCH MORTGAGE CLAUSE, ONE SHALL RETURN THEM, BECAUSE THE COURT WILL NOT ENFORCE PAYMENT²⁰  ON THE STRENGTH OF THEM. THIS IS THE VIEW OF R. MEIR. BUT THE SAGES SAY: ONE SHALL NOT RETURN THEM IN EITHER CASE, AS THE COURT WILL ENFORCE PAYMENT [IN BOTH CASES].

GEMARA. With what kind of circumstances do we deal here? If the debtor admits [that the debt is due], then, even if there is a mortgage clause [in the documents], why shall [the finder] not return them, seeing that the debtor admits [that he has not paid the debt]?²¹  And if the debtor does not admit, why should [the finder] return [the documents where they do not contain a mortgage clause]? Granted that [the creditor] may not exact payment from encumbered property,²²  but he may certainly exact payment from unencumbered property!²³  — Yes. [It is] indeed [a case] where the debtor admits his debt, but the reason [why the documents are not to be returned is this]: We apprehend that they might have been written to secure a loan [say] in Nisan²⁴  whereas the loan was not granted until Tishri,²⁵  so that [the lender] would come to seize unlawfully the property bought [by others from the borrower during that space of time]. But if so, we ought to entertain the same fear as regards all documents that come before us? — Ordinary documents are not suspect, but these are suspect.²⁶  Then [the question arises] regarding the law that we learnt [in a Mishnah]: A note of indebtedness may be written for the borrower even when the lender is not present.²⁷  How do we write it deliberately [seeing that] we ought to apprehend that the note might have been written with the intention of borrowing in Nisan, whereas the loan was not granted until Tishri, so that the lender would seize unlawfully the property [which others will have] bought [from the borrower during that space of time]!²⁸  — Said R. Assi:

1. The Rabbis have conceded the son the right to glean after his father, although legally he has no such right.
2. That the reason why our Mishnah decides that the object found by a minor belongs to his father is that a minor has no right of possession.
3. Therefore an object found by a son who is maintained by his father, even if he be an adult, belongs to his father (to avoid ill-feeling), and an object found by one who is not maintained by his father, even if he be a minor, belongs to himself. (Rashi.)
4. Supra 10a; infra 118a. Thus we see that an object found by a hired labourer engaged to do general work belongs to the employer. The Hebrew servant ought to be treated in the same way, as his time is his master's, and anything he does is done for the master.
5. The master would therefore not wish him to interrupt his work in order to lift up a found object, the value of which would seldom exceed the value of his work, so that if it does happen that the servant lifts up a valuable object the master can only claim compensation for the time in which he interrupted his work in order to acquire the object.
6. The finding of the object involved no interruption in the servant's work. The object therefore belongs to the servant, and there is no compensation due to the master.
7. When a meadow has been flooded, and the fish remained after the waters have receded.
8. The sign of puberty.
9. [A Hebrew maid-servant secures her freedom on attaining puberty. Cf. Kid. 14b.]
10. As she is still a minor, v. supra 12a.
11. The death of her father necessitates her release.
12. Cf. Kid. 16a, and Keth. 43a.
13. V. Kid. loc. cit.
14. The words [H] used in the Mishnah are meant to indicate that the found objects do not belong to the master but become the property of the children's father (who acquires them from the children).
15. It is doubtful whether the divorce is valid, as when the husband has thrown to her a bill of divorcement in an open street, and it is not certain whether the document was nearer to him or to her when it fell to the ground.
16. Keth. 97b; Git. 74a; B.B. 47b.
17. Seeing that he tried to divorce her; consequently the husband forfeits all claim to whatever she finds.
18. I.e., to either of the parties named therein.
19. The Court will exact payment from the mortgaged property even if the debtor has sold it to others after incurring the debt. This may lead to injustice, as explained below in the Gemara.
20. The court will not exact payment from the purchasers of the debtor's real property, and the possibility of injustice will not arise.
21. And the creditor is legally entitled to exact payment from the mortgaged property even if the debtor has sold it, so there is no injustice.
22. Which the debtor disposed of after incurring the debt.
23. So that an injustice may still be done to the debtor, who may have paid the debt already, as he claims to have done.
24. The first month of the year, corresponding mostly to April.
25. The seventh month of the year, corresponding mostly to October.
26. The fact that they were not properly taken care of, and were thus lost, would show that no importance was attached to them. There is thus a prima facie case against their validity.
27. Cf. B.B. 167b.
28. V. p. 71, n. 2.