Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 11a

we derive [the law regarding] a found object from [the law regarding] divorce,¹  and the other²  is of the opinion that we do not derive [the law regarding] a found object from [the law regarding] divorce.³  And if you wish I will say: As regards a female minor there is no difference of opinion [and all agree] that we derive [the law regarding] a found object from [the law regarding] divorce, but here they differ regarding a male minor: One⁴  says: We derive [the law regarding] a male minor⁵  from [the law regarding] a female minor, and the other⁶  says: We do not derive [the law regarding] a male minor from [the law regarding a female minor]. And if you wish I will say: One deals with one case⁷  and the other deals with another case, and they do not really differ [as regards the law].

MISHNAH. IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE [E.G.,] AFTER AN INJURED STAG [OR] AFTER UNFLEDGED PIGEONS,⁸  AND SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME',⁹  IT DOES ACQUIRE POSSESSION FOR HIM.¹⁰  BUT IF THE STAG RUNS NORMALLY, OR THE PIGEONS FLY [NATURALLY], AND HE SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME,' THERE IS NOTHING IN WHAT HE SAYS.¹¹

GEMARA. Rab Judah said in the name of Samuel: This¹²  is, provided he is present by the side of his field. But ought not his field to acquire it for him [in any case], seeing that R. Jose, son of R. Hanina, said:¹³  A man's 'ground' acquires [property] for him [even] without his knowledge? — These words apply only to a [piece of] 'ground' that is guarded,¹⁴  but when [the piece] of 'ground' is not guarded, [then the law is that] if [the owner] is present by the side of his field he does [acquire the property], [but] if [he is] not [present] he does not [acquire it]. And whence do you derive that when [the piece of] 'ground' is not guarded [the owner] does [acquire the property] if he is present by the side of the field, [but that he] does not [acquire it] if [he is] not [present]? — From what was taught: If one stands in town and says, 'I know that the sheaf which I have in the field has been forgotten by the labourers,¹⁵  [and it is my wish that the sheaf] shall not be regarded as forgotten',¹⁶  I might think that it shall not [in any circumstances]¹⁷  be regarded as forgotten: the scriptural verse therefore tells us: And thou hast forgot a sheaf in the field [etc.]¹⁸  implying 'only if thou hast forgotten it [while thou wast] in the field [does the law of the forgotten sheaf apply] and not [if thou hast forgotten it when thou hast returned] to town.' Now, this seems self-contradictory. First you say: 'I might think that it shall not be regarded as forgotten' — from which it would appear that [in fact] it is regarded as forgotten; and then the Gemara¹⁹  concludes: 'Only if thou hast forgotten it [while thou wast] in the field [does the law of the forgotten sheaf apply] but not [if thou hast forgotten it when thou hast returned] to town' — from which it would appear that [in the case discussed] it is not regarded as a forgotten [sheaf]. It must therefore be assumed that what is meant is this: In the field, [i.e.,] if it was forgotten at the outset, [while the owner was still in the field,] it must be regarded as [a] forgotten [sheaf], [but] if it was remembered [by the owner in the field] and was subsequently forgotten [by the labourers] it is not regarded as [a] forgotten [sheaf]. For what reason? Since he was standing near it [in the field, the field] acquires it for him. But [when the owner is again] in town, even if [the sheaf] was at first remembered [by him] and was forgotten later [by the labourers in the field], it must be regarded as [a] forgotten [sheaf].²⁰  For what reason? Because he is not there beside it, so that [the field] does not require possession [of the sheaf] for him. But how does it follow?²¹  Perhaps it is a Biblical decree that [only that which is forgotten by the owner while he is] in the field shall be subject to the law of the forgotten sheaf, but that [when the owner is] in town [again] the sheaf is no more subject to that law?²²  The Scriptural verse says [further]: Thou shalt not go back to fetch it — this is to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this needed to indicate that disregard of the law involves the transgression of a negative command?²³  — If that were so, the Scriptural verse would only have to say 'Thou shalt not fetch it'. Why does it say: 'Thou shalt not go back'? [Obviously] in order to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this [additional phrase] still required for [the rule] which we have learned: That which is in front of him [who is engaged in reaping] is not [subject to the law of the] forgotten [sheaf]; that which is behind him is [subject to the law of the] forgotten [sheaf], as it is included in the prohibition: 'Thou shalt not go back [to fetch it]'.²⁴  This is the general rule: All that can be included in the prohibition 'Thou shalt not go back [to fetch it]' is [subject to the law of the] forgotten [sheaf]; all that cannot be included in the prohibition 'Thou shalt not go back [to fetch it]' is not [subject to the law of the] forgotten [sheaf]?²⁵  — R. Ashi said: The Scriptural verse says: It shall be [for the stranger]²⁶  etc., so as to include that which has been forgotten [by the owner when he is back] in town.

'Ulla also said:²⁷  'This is, provided that he is present by the side of his field'. And Rabbah b. Bar Hanah said likewise: 'This is, provided that he is present by the side of his field'. R. Abba placed before 'Ulla the following objection: It happened once that Rabban Gamaliel and some elders were going in a ship.²⁸  Rabban Gamaliel then said: The tithe which I shall measure off [when I come home] is given [by me] to Joshua.²⁹

1. That just as her 'ground' acts for her as regards a bill of divorcement it also acts for her as regards a found object.
2. Resh Lakish.
3. Divorce is a matter that has to do with the ritual part of the Law, while the claim to a found object is only a matter of money. In regard to the latter the deduction from Ex. XXII, 3, dealing with theft, to include 'ground' may be explained as an extension of the law of agency, i.e., the thief's 'ground' is treated as his, agent and it may be applied to other 'money matters'. The Scriptural indication is however necessary in the case of theft, as otherwise we might have thought that a thief's premises do not act for him, because of the principle that 'there is no agent for a sinful act'.
4. R. Johanan.
5. Which is not indicated anywhere in the Bible.
6. Resh Lakish.
7. Resh Lakish states the law regarding a found object — that it is not acquired by means of one's 'ground' — and R. Johanan states the law regarding a bill of divorcement — that it is acquired by means of one's ground. Or alternatively it could be said that one deals with the case of a male minor, and the other deals with the case of a female minor, and this accounts for the difference in their decision. It may thus be assumed that R. Johanan and Resh Lakish do not differ at all as regards the law as it applies to each case, and that they would both uphold each other's decision.
8. The injured stag and the unfledged pigeon cannot move out of the field in which they are found, and will therefore remain there, unless someone takes them away. The field, in these circumstances, acts for the owner and acquires the animal or the birds for him, if the owner expresses his wish in this respect before the others have taken hold of these finds. (V. however, Tosaf a.l.)
9. V. supra. 10b.
10. They become his property, and the others have no right to take them away.
11. As the animals or birds are not staying in the field his 'ground' cannot acquire them for him.
12. The Mishnaic law that the field acquires for its owner the injured stag and the unfledged birds that are found there.
13. B.K.. 493; infra 102a, 118a; Hul. 141b.
14. As when it is surrounded by a fence.
15. I placed the sheaf there so that the labourers might see it and bring it home.
16. It shall not he subject to the law regarding a sheaf which has been forgotten in the field — the law given in Deut. XXIV, 19: When thou reapest thy harvest in thy field, and hast forgot a sheaf in the field, thou shalt not go back to fetch it etc.
17. I.e., even if the owner himself forgot it subsequently.
18. Deut. XXIV, 19.
19. [MS.M. 'Talmud', v. infra p. 206, n. 6.]
20. The argument of the Gemara would then be as follows: 'I might think that it shall not be regarded as a forgotten sheaf, The Scriptural verse therefore tells us: And thou hast forgot a sheaf in the field etc., meaning thereby: Only when thou art in the field it is necessary that thou thyself shalt forget the sheaf in order to make it available for the stranger etc., but when thou hast returned to town it is not necessary that thou thyself shalt forget the sheaf: the forgetfulness of the labourers in the field has the same effect as thine own.
21. That the meaning of the verse is as stated, and that the conclusion of the Baraitha is correct (Tosaf.).
22. The emphasis in the verse would then be that the law of the forgotten sheaf only applies to [H] ('in the field') but never to [H] ('in the town').
23. Carrying with it the penalty of thirty-nine lashes.
24. This phrase is superfluous and thus serves as a basis for this deduction.
25. Pe'ah VI, 4.
26. Deut. ibid.
27. 'Ulla expressed the same view as Rab Judah expressed in the name of Samuel (v. p. 59. n. 9).
28. Cf. Hor. (Sonc. ed) pp. 70f.
29. Joshua b. Hananiah, who was a Levite and was entitled to receive the first tithe. (Cf. 'Ar. 11b.) Rabban Gamaliel was afraid that if he waited till he returned home he would be too late to perform the duty of tithing for that year. [Or that the members of his household might make use of the produce on the assumption that he had set the tithe aside before his departure, incurring thereby the guilt of eating untithed produce]. According to the view of Rabbenu Tam (Tosaf. a.l. and Kid. 26b) this happened on the eve of the Passover festival of the fourth year, when all the tithe offerings had to be 'put away' (cf. Deut. XXVI, 12ff.)

and the place [where it lies] is leased to him [by me].¹  And the other tithe²  which I shall measure off is given [by me] to Akiba b. Joseph³  that he may acquire possession of it for the poor, and the place [where it lies] is leased to him [by me].⁴  Now, were R. Joshua and R. Akiba standing by the side of the field of Rabban Gamaliel [when the latter made that declaration]?⁵  — He ['Ulla] then said to him [R. Abba]: This student seems to imagine that people do not study the law.⁶  When he [R. Abba] came to Sura⁷  he related to those [at the College]: This is what 'Ulla said, and this is the objection that I placed before him. One of the Rabbis then answered him: Rabban Gamaliel made them acquire the movable property through the immovable property.⁸  R. Zera accepted it. R. Abba did not accept it. Said Raba: He [R. Abba] did right in not accepting it: for had they not a 'cloth' by which to acquire from him [the tithes] as 'exchange'?⁹  [It must] therefore [be said that] the enjoyment of the right [to give the tithes to whom one likes]¹⁰  is not [regarded as something that has a] money [value] by which one could acquire [goods] as 'exchange'. In the same way [it must be said that] the enjoyment of this right is not [regarded as something that has a] money [value] for the purpose of being acquired through immovable property.¹¹  But this is not so: In regard to the priestly perquisites¹²  [the term] 'giving' is used in Scripture:¹³  'Exchange' is a commercial transaction; [whereas the acquisition of] movable property through immovable property is [a transaction to which] 'giving' [may be] legitimately [applied].¹⁴  R. Papa says:¹⁵  [In a case where there is] a person bestowing [upon the recipient] the right [to the property] it is different.¹⁶  And whence do you derive this? From what we have learned [in our Mishnah]: 'IF A MAN SEES PEOPLE RUNNING AFTER A LOST OBJECT' etc. And [in regard to this] R. Jeremiah said in the name of R. Johanan: 'This is, provided that [if] he runs after them and can overtake them.'¹⁷  R. Jeremiah then asked: What is the law regarding a gift?¹⁸  R. Abba b. Kahana approved [of the distinction implied in] this question, [and he answered: If the objects are given to the owner of the field, they become his] even if he runs after them, and cannot overtake them. For what reason? Is it not because [where there is] a person bestowing [upon the recipient] the right [to the property] it is different!

Said R. Shimi to R. Papa: Behold there is [the case of] a bill of divorcement [thrown by the husband into the wife's house or court-yard],¹⁹  where there is a person bestowing upon the recipient the right to its possession²⁰  — and yet 'Ulla said: 'That is, provided that she is present in the vicinity of her house or her court-yard'! — [The case of] a bill of divorcement is different, as it may be given even against her will. But can it not be concluded [the other way] by means of a Kal wa-homer: If [in the case of] a bill of divorcement, which may be given against [the wife's] will, it is valid if she is standing by the side of her house or her court-yard, but not otherwise, how much more should this be so in the case of a gift, for which [the recipient's] consent [is necessary]? — Therefore R. Ashi said:²¹

1. This enabled Joshua to acquire the tithe without actually taking possession of it, as movable property may be acquired either by pulling it or having it placed within one's premises (v. supra 9b). According to Ma'as. Sh. V, 9 the leasing of the premises was confirmed by the immediate payment of a nominal rental by Joshua to R. Gamaliel.
2. The tithe which had to be given to the poor in the third and sixth year after the Sabbatical year.
3. Who held the office of almoner.
4. Ma'as. Sh. V, 9.
5. It is obvious that in this case the condition laid down by 'Ulla and the other Rabbis could not have been fulfilled. The conclusion must therefore be drawn that a person's premises may acquire for him the objects placed therein even if he is not standing by the side of the premises.
6. B.B. 84b.
7. Cf. supra 6b.
8. The leasing of the ground on which the tithes were lying enabled Joshua and Akiba to acquire the tithes, not because the ground acted for them as their 'hand' or 'agent', but because of the principle that 'movable property, which cannot be pledged as security to a lender, may be acquired together with immovable property, which can be pledged as security to a lender,' by means of the payment of the purchase price of the immovable property (v. Kid 26a). Rabban Gamaliel could therefore have leased to Joshua and Akiba any other piece of ground, with the same effect so far as the acquisition of the tithes is concerned. Even movable property which is received as a gift can be acquired in the same way. (Cf. loc. cit.)
9. Heb. [H] halipin; cf. Ruth. IV, 7. What need was there then for Joshua and Akiba to pay R. Gamaliel for the lease of the ground? Cf. supra p. 30. n. 3.
10. The tithe offered by R. Gamaliel to Joshua and Akiba was not really the former's property as it belonged by law to the Levite poor. R. Gamaliel's right was limited to the choice of the person to whom the tithe was to be handed over. This right has no money value in the sense indicated to enable the recipient of the tithe to acquire it in association with a transaction of 'exchange'.
11. In the same way, and for the same reason, the tithe could not be acquired by means of the payment of the purchase price for immovable property. But it could be acquired in the way in which an ownerless object is acquired by one in whose premises it is placed, and for this reason the method employed by R. Gamaliel, as originally interpreted (by leasing his ground on which the tithe was lying), was correct.
12. Including the portions due to the Levites and to the poor.
13. Deut. XXVI, 12.
14. 'Giving' precludes selling, and 'exchange' is a method of sale. But the acquisition of movable property, even when it is received as a gift in association with immovable property is legally valid, and it is not regarded as a sale. This method may therefore be employed in reference to tithes.
15. R. Papa upholds the original version regarding R. Gamaliel's method of distributing the tithes by means of his 'ground'.
16. Literally: 'Where another mind causes one to acquire them,' i.e., where the recipient does not acquire (ownerless) goods by his own action, but has them conferred upon him by the owner, as in the case of R. Gamaliel. In such a case there is no need for the recipient to 'be standing by the side of the field,' as laid down by 'Ulla and others in regard to the case in our Mishnah.
17. The injured animal and immature birds are assumed to be able to move along slowly through the field, where they can be overtaken by the owner.
18. If someone's animals or birds have landed in a strange field and their owner gives them to the owner of the field as a present, Must the owner be able to overtake them in order to be able to acquire them, or not?
19. V. Git. 77b; and supra 10b.
20. It is the husband's intention that the wife should take possession of the document, so that she may be divorced by it.
21. R. Ashi acknowledges the validity of the arguments advanced by R. Shimi and R. Shesheth, and he gives a new reason for the distinction between a bill of divorcement and a gift. In both cases the ground on which the object is placed acts as the recipient's agent, whether the recipient is present or not. Where the recipient has no knowledge of the action, the agency is valid only if the action yields an advantage or benefit to the recipient. Where the action results in a disadvantage (loss or injury) to the recipient, it has no validity. Therefore, in the case of a gift, the recipient's ground acquires it for him, whether he is aware of it or not. But in the case of the bill of divorcement thrown into the wife's house or court-yard (against her will) the agency of the premises is not effective because the result would be a disadvantage to her, and in such a case the premises could only act for her if she is present and aware of what is happening, for then the premises would be regarded as 'her hand' (cf. supra 10b) and not merely as her agent. Therefore the divorce is not valid unless the woman was beside her premises when the bill was thrown.