Bava Metzia - Daf 21
- אלו מציאות שלו...מצא פירות מפוזרין
The second Perek begins: אלו מציאות שלו – These finds belong to him, ואלו חייב להכריז – and these he is obligated to announce so the owner can come to reclaim it. The first list begins: מצא פירות מפוזרין – if he found scattered produce, מעות מפוזרות – scattered coins, and numerous other items which have no סימן – identifying mark, the finder may keep them, because the owner despairs of retrieving them.
Rebbe Yitzchak explains the first case as a kav’s volume of produce spread over an area of four amos. The Gemara asks that if the produce appears to have fallen from its owner, even a greater amount of produce found should belong to the finder, since he despairs of recovering it. If it appears to have been placed there intentionally, even a smaller amount should not belong to the finder, since the owner intends to come back for it. The Gemara explains that the case is: במכנשתא דבי דרי – with grain left at the gathering up from the winnowing place, where the owner took the bulk of the threshed grain and left this behind. An amount less than a kav spread over four amos is not worth the effort to retrieve, and the owner abandons them. Rebbe Yirmiyah posed numerous inquiries to determine if the primary factor is the retrievable produce’s value, or the effort involved in retrieving them.
- יאוש שלא מדעת
Amoraim discuss יאוש שלא מדעת – despair without awareness, where the owner would despair of retrieving his article if he would know it was lost but is not yet aware. Abaye says: לא הוי יאוש – it is not considered despair, and Rava says it is. The Gemara first clarifies the case: if the article has a siman, then the finder may not keep it even if the owner eventually explicitly despairs, since at the time he found it, באיסורא הוא דאתא לידיה – it came into his hand in a prohibited state, since the owner was not expected to despair. If it was swept away by the sea, he may keep it even if it had a siman, as the Gemara will later darshen. Their argument is about an article which lacks a siman. Abaye says the situation is not considered יאוש, דהא לא ידע דנפל מיניה – because [the owner] does not know that it fell from him, so he has not actually despaired. Rava says it is considered יאוש, since the owner will despair as soon as he realizes he lost it (because it lacks a siman); מהשתא הוא דמיאש – therefore, he is considered to have despaired from now, when it is lost.
- אדם עשוי למשמש בכיסו בכל שעה ושעה
Abaye is challenged from our Mishnah, which states: מעות מפוזרות הרי אלו שלו – if one found scattered coins…these belong to him. But since the owner may not be aware that he lost them, he has not yet despaired of retrieving them, and they should not be permitted to keep !? The Gemara answers by applying Rebbe Yitzchak’s principle: אדם עשוי למשמש בכיסו בכל שעה ושעה – a person is accustomed to touching his purse constantly to check if his money is still there. Therefore, we can assume the owner became aware of his loss, and despaired, before the coins were discovered. This principle is also used to explain why one may keep לשונות של ארגמן – tongues of purple wool, as the Gemara explains: אגב דחשיבי משמושי ממשמש בהו – since they are valuable, he constantly touches them to check they are there. The same explains a Baraisa which teaches that one may keep money found in synagogues, or any place which is frequented by many people.
