Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 27a

to one who purchases from a merchant;¹  but if one buys from a private individual, he is bound to return [the coins].²  And a tanna recited likewise before R. Nahman: This refers only to one who purchases from a merchant: but if from a private individual, he is bound to return [the coins]. Thereupon R. Nahman observed to him: 'Did then the private individual thresh [the grain] himself?'³  'Shall I then delete it?' he enquired. — 'No,' he replied; 'interpret the teaching of one who threshed [the grain] by his heathen slaves and bondswomen.⁴

MISHNAH. NOW, THE GARMENT TOO WAS INCLUDED IN ALL THESE: WHY THEN WAS IT SINGLED OUT?⁵  THAT AN ANALOGY MIGHT BE DRAWN THEREWITH, TEACHING: JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED, IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED.⁶

GEMARA. What is meant by IN ALL THESE? — Said Raba: In the general phrase, [and in like manner shalt thou do] with every lost article of thy brother.⁷

Raba said: Why should the Divine Law have enumerated ox, ass, sheep and garment?⁸  They are all necessary. For had the Divine Law mentioned 'garment' alone, I would have thought: That is only if the object itself can be attested, or the object itself bears marks of identification. But in the case of an ass, if its saddle is attested or its saddle bears marks of identification,⁹  I might think that it is not returned to him. Therefore the Divine Law wrote 'ass,' to shew that even the ass [too is returned] in virtue of the identification of its saddle. For what purpose did the Divine Law mention 'ox' and 'sheep'?' — 'Ox', that even the shearing of its tail, and 'sheep', that even its shearings [must be returned].¹⁰  Then the Divine Law should have mentioned 'ox', to shew that even the shearing of its tail [must be returned], from which the shearings of a sheep would follow a fortiori? — But, said Raba, 'ass,' mentioned in connection with a pit,¹¹  on R. Judah's view, and 'sheep' in connection with a lost article, on all views, are [unanswerable] difficulties.¹²  But why not assume that it comes [to teach] that the dung [too must be returned]? — [The ownership of] dung is renounced.¹³  But perhaps its purpose is to teach the law of identification marks? For it is a problem to us whether identification marks are Biblically valid [as a means of proving ownership] or only by Rabbinical law; therefore Scripture wrote 'sheep' to shew that it must be returned even on the strength of identification marks, thus proving that these are Biblically valid. — I will tell you: since the Tanna refers to identification marks in connection with 'garment', for he teaches, JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED, IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, it follows that the purpose of 'sheep' is not to teach the validity of identification marks.¹⁴

Our Rabbis taught: [And so shalt thou do with all lost things of thy brother's] which shall be lost to him:¹⁵  — this excludes a lost article worth less than a perutah. R. Judah said: And thou hast found it¹⁶  — this excludes a lost article worth less than a perutah.¹⁷  Wherein do they differ? — Said Abaye: They differ as to the texts from which the law is derived: one Master deduces it from, 'which shall be lost to him;' the other, from, 'and thou hast found it.'¹⁸  Now, he who derives it from, 'which shall be lost to him,' how does he employ, 'and thou hast found it?' — He requires it for Rabbanai's dictum. For Rabbanai said: And thou hast found it implies even if it has come into his possession.¹⁹  Now, he who deduces it from, 'and thou hast found it,' how does he utilize, 'which shall be lost to him?' — He needs it for R. Johanan's dictum. For R. Johanan said on the authority of R. Simeon b. Yohai:²⁰  Whence do we know that a lost article swept away by a river is permitted [to the finder]? From the verse, 'And so shalt thou do with all the lost things of thy brother which shall be lost to him and thou hast found it': [this implies.] that which is lost to him but is available²¹  to others in general, thus excluding that which is lost to him and is not available to others. And the other, whence does he infer Rabbanai's dictum? — He derives it from, and thou hast found it.²²  And the other, whence does he know R. Johanan's dictum? — From, [which shall be lost] to him.²³  And the other?²⁴  — In his opinion, to him has no particular significance.

Raba said: They differ in respect of [a loss worth] a perutah, which [subsequently] depreciated.²⁵  On the view that it is derived from, 'which shall be lost to him,' there is [the loss of a perutah]; but according to him who deduces it from, 'and thou hast found it,' there is not [a find of a perutah]. Now, he who emphasizes, 'which shall be lost' — surely, 'and thou hast found it,' must also be applicable, which is not [the case here]! — But they differ in respect of [an article now worth] a perutah, having appreciated.²⁶  On the view that it is deduced from, 'and thou hast found it,' there is [the find of a perutah]; whereas according to him who deduces it from, 'which shall be lost,' there is not [the loss of a perutah]. Now, he who emphasizes, 'and thou host found it' — surely, 'which shall be lost,' must also be applicable, which is not [the case here]! — But they differ in respect of [an article worth] a perutah, which fell and then rose in value again.²⁷  On the view that it is derived from, 'which shall be lost.' there is [the loss of a perutah]; but according to the opinion that it is inferred from, 'and thou host found it,' it must have had the standard of a 'find' from the time of being lost until found.

The scholars propounded: Are identification marks [legally valid] by Biblical or merely by Rabbinical law? What is the practical difference? —

1. Who himself buys from many people, so that the original ownership cannot be traced.
2. 'Private individual' means one who grows his own produce.
3. The money might have been lost by one of his workmen.
4. These have no rights of ownership, and even if they lost the money, it still belongs to their master.
5. Lit., 'did it go forth.'
6. Lit., 'it has claimants'. The last phrase excludes articles which the owner has abandoned. — The whole Mishnah is explained in the Gemara.
7. Deut. XXII, 3. — The 'singling out' of a garment is in the same verse: and in like manner shalt thou do with his garment.
8. Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them: thou shalt in any case return them unto thy brother … In like manner shalt thou do with his ass, and so shalt thou do with his garment. — Ibid. 1, 3.
9. But not the ass itself.
10. If the finder had occasion to shear these animals while in his Possession.
11. Ex. XXI, 33: And if a man shall open a pit … and on ox or an ass fall therein.
12. V. B.K. 54a. The Rabbis maintain that the maker of the pit is not responsible if a man or utensils fall therein, interpreting, 'ox,' but not man, 'ass,' but not utensils. R. Judah, however, maintains that he is responsible for utensils: hence the difficulty, why mention 'ass?'
13. Hence it need not be returned.
14. Though it is stated below that the Tanna may have mentioned identification marks in connection with 'garment' casually, yet that is sufficient to prove that in his opinion the purpose of 'sheep' is certainly not to prove their validity.
15. Literal rendering of Deut. XXII, 3. (E.V.: which he hath lost.)
16. Ibid.
17. That which is not worth a perutah is neither a loss nor a find.
18. But there is no difference in actual law.
19. Lit., 'hand.' V: supra. p. 2.
20. [Var. lec., 'b. Jehozadak,' v. supra p. 139. n. 4.]
21. Lit., 'found.'
22. [ [H] in the perfect following the imperfect [H] is taken to denote the pluperfect.]
23. Whereas his own deduction that the law applies only to a loss worth a perutah, is from 'lost.'
24. What does he derive from, 'to (from) him'?
25. I.e., when lost it was worth a perutah, but not when found.
26. When lost, it was not worth a perutah, but its value had increased to a perutah by the time it was found.
27. When lost, it was worth a perutah; then its value fell, but when found it was again worth a perutah.

In respect of returning a woman's divorce on the strength of identification marks:¹  should you say that they are Biblically [valid], we return it; but if only by Rabbinical law the Rabbis enacted this measure for civil matters only, not for ritual prohibitions?²  — Come and hear: NOW, THE GARMENT TOO WAS INCLUDED IN ALL THESE. WHY THEN WAS IT SINGLED OUT? THAT AN ANALOGY MIGHT BE DRAWN THEREWITH, TEACHING: JUST AS A GARMENT IS DISTINGUISHED IN THAT IT BEARS IDENTIFICATION MARKS AND IS CLAIMED, SO MUST EVERYTHING BE ANNOUNCED. IF IT BEARS IDENTIFICATION MARKS AND IS CLAIMED!³  — The Tanna really desires [to teach] that there must be a claimant; identification marks are mentioned only incidentally.⁴

Come and hear: [Therefore Scripture wrote 'ass,' to shew that even] the ass [too is returned] in virtue of the identification marks of its saddle!⁵  — Read: in virtue of the witnesses [attesting to the ownership] of its saddle.⁶

Come and hear: And it [sc. the article found] shall be with thee until thy brother seek after it [and thou shalt return it to him]:⁷  now, would it then have occurred to thee that he should return it to him before he sought after it!⁸  But [it means this:] examine him [the claimant], whether he be a fraud or not.⁹  Surely that is by means of identification marks!¹⁰  — No: by means of witnesses. Come and hear: Testimony¹¹  may be given¹²  only on proof [afforded by] the face with the nose, even if the body and the garment bear identification marks.¹³  This proves that identification marks are not Biblically valid! — I will tell you: In respect to the body, [the proposed identification marks were] that it was short or long;¹⁴  whilst those of his garments [are rejected] because we fear borrowing.¹⁵  But if we fear borrowing, why is an ass returned because of the identification of the saddle? — I will tell you: people do not borrow a saddle, because it chafes the ass ['s back].¹⁶  Alternatively, the garments [were identified] through being white or red.¹⁷  Then what of that which was taught: If he found it tied up in a purse, money bag, or to a ring, or if he found it amongst his [household] utensils, even a long time afterwards, it is valid.¹⁸  Now should you think, we fear borrowing: if he found it tied up in his purse [etc.], why is it valid? Let us fear borrowing! — I will tell you: A purse, wallet, and signet ring are not lent: a purse and a money bag, because people are superstitious about it;¹⁹  a signet ring, because one can commit forgery therewith.²⁰

Shall we say that this is disputed by Tannaim? [For it was taught:] Testimony may not be given¹²  on the strength of a mole; but Eleazar b. Mahabai said: Testimony may be so given.²¹  Surely then they differ in this: The first Tanna holds that identification marks are [only] Rabbinically valid,²²  whilst Eleazar b. Mahabai holds that they are Biblically valid? — Said Raba: All may agree that they are Biblically valid: they differ here as to whether a mole is to be found on one's affinity.²³  One Master maintains that a mole is [generally] found on a person's affinity;²⁴  whilst the other holds that it is not. Alternatively, all agree that it is not; they differ here as to whether identification marks²⁵  are liable to change after death. One Master maintains: Identification marks are liable to change after death;²⁶  the other, that they are not. Alternatively, all agree that a mole is not liable to change after death, and identification marks are valid only by Rabbinical law; they differ here as to whether a mole is a perfect mark of identification. One Master maintains that a mole is a perfect mark of identification,²⁷  whilst the other holds that it is not.²⁸

Raba said: If you should resolve that identification marks are not Biblically valid, why do we return a lost article in reliance on these marks?²⁹  Because one who finds a lost article is pleased that it should be returned on the strength of identification marks, so that should he lose anything, it will likewise be returned to him through marks of identification. Said R. Safra to Raba: Can then one confer a benefit upon himself with money that does not belong to him! But [the reason is this:] the loser himself is pleased to offer identification marks and take it back.³⁰  He knows full well that he has no witnesses; therefore he argues to himself, 'Everyone does not know its perfect identification marks,³¹  but I can state its perfect identification marks and take it back.' But what of that which we learnt: R. Simeon b. Gamaliel said: If it was one man who had borrowed from three, he [the finder] must return [them] to the debtor; if three had borrowed from one, he must return them to the creditor.³²  Is then the debtor pleased that it [the promissory note] is returned to the creditor? — In that instance, he replied to him, it is a matter of logic. If it was one man who had borrowed from three, he must return [them] to the debtor, because they are to be found [together] in the debtor's possession, but not in the creditor's:³³  hence the debtor must have dropped it. If three had borrowed from one, it must be returned to the creditor, because they are to be found in the creditor's possession, but not in the debtor's.

1. If a messenger was sent with a divorce but lost it before delivery. Subsequently a divorce was found, and the messenger identified it by means of certain marks therein.
2. It is a general principle that the Rabbis could freely enact measures affecting civil matters, since they had the power to abrogate individual rights of property under certain conditions. But they could not nullify ritual prohibitions. Hence, if identification marks are Scripturally valid, the divorce is returned to the messenger, who proceeds to divorce the woman therewith. But if they have no Scriptural force, the Rabbis could not institute a measure to free her from her marriage bonds which was not sanctioned by the Bible.
3. Thus it is explicitly stated that the validity of identification marks is deduced from Scripture, hence Biblical.
4. I.e., it may be that 'garment' teaches only that ownership must be claimed. Since, however, it is a fact that it can be claimed on the strength of identification marks, the Tanna mentions these too, even if their validity is only Rabbinical.
5. Cf. p. 170, n. 6.
6. Even if only the ownership of the saddle is attested, the ass too is returned: that is deduced from the verse.
7. Ibid. 2.
8. Surely not! Then why state it?
9. Translating: until thy brother's examination — i.e., until thou hast examined thy brother — in respect thereof. — Darash, besides meaning 'to seek', also connotes 'to make judicial investigation'; cf. Deut. XIII, 15: Then shalt thou (judicially) enquire (we-darashta).
10. Thus proving that they are Biblically valid.
11. To free a widow for marriage.
12. As to the identity of a corpse.
13. Yeb. 120a.
14. These are naturally rejected, since many people are short or long. But it may well be that others are accepted.
15. Granted that the ownership of the garments is established, that does not prove the identity of the corpse, as they might have been borrowed.
16. A saddle must fit its particular ass.
17. Cf. n. 4, [MS.M. omits this passage, and rightly so, seeing that it assumes that we do not fear borrowing, which would make the question that follows closely on irrelevant; v. n. 10.]
18. Git. 27b. If a messenger loses a bill of divorce, and then finds one in the places mentioned, it is valid, and we do not fear that it might be a different document written for another husband and wife with identical names. A bill of divorce had to be written specifically for the woman it was intended to free.
19. Believing it unlucky to lend them(Jast.).
20. [MS.M. adds here the passage it omits above, v. n. 7.]
21. Yeb. 120a.
22. Therefore they cannot establish identity to break the marriage bond. Cf. p. 169, n. 1.
23. I.e., a person born at the same hour and under the same planetary influence.
24. And therefore it cannot establish identity.
25. In Yeb, 120a, where this discussion is repeated, the text reads 'mole'.
26. Therefore they cannot establish identity.
27. Which leaves no doubt whatsoever. Even if identification marks in general are only Rabbinically valid, that is when they are not absolutely perfect; but if they are, they certainly have Biblical force.
28. Thus so far the problem remains unsolved.
29. I.e., why did the Rabbis give them validity for this purpose?
30. [The text is difficult and hardly intelligible as it stands. Read with some versions: 'The loser himself is pleased that it should be returned (to any claimant) on the strength of identification marks.']
31. Even if others have seen and can generally describe it, they cannot give a minute and detailed description. [R. Safra employs the term 'perfect identification marks' ([H]) in a loose sense, as any identification mark in general is valid for the recovery of a lost article; cf. also infra p. 177. n. 4. V. R. Nissim, Hiddushim, a.l.]
32. V. supra 20a, Mishnah.
33. Since there are three separate creditors.