Bava Metzia - Daf 26
- ליזיל בתר בתרא
The Mishnah on the previous Daf taught that money found in a house which was rented to others may be kept, because the owner is unknown. The Gemara asks: ליזיל בתר בתרא – let us follow the last [renter], and assume the money is his!? A Mishnah teaches that coins found near animal dealers in Yerushalayim are assumed to be maaser sheni (which is what most animals were bought with in Yerushalayim), and coins found on Har Habayis are assumed to be chullin (even during the רגלים, when maaser sheni money is brought to Yerushalayim, because the money may have been lost beforehand, when most money is chullin). However, coins found in Yerushalayim itself depend on when they are found: during the year, they are assumed chullin, but during the רגלים, they are assumed to be maaser sheni. Rav Shemayah bar Zeira explained: הואיל ושוקי ירושלים עשוין להתכבד בכל יום – because the marketplaces of Yerushalayim were usually swept daily, so these coins were presumably lost recently. Here, too, the previous renters clear their belongings before leaving, and we should assume the last renter owns these coins!? Rav Menashya bar Yaakov answered that the house was last rented to three Gentiles (Rashi says the same applies to one), so the coins may be kept.
- ראה סלע שנפלה משנים
Rav Nachman quoted Rabbah bar Avuha answering that even if the house was rented to three Jews, he may keep the coins: the owner reasons that since there were only two other tenants with him, one of them must have found them. Since he has repeatedly asked them to return the coins, and they have not, whoever found them must have decided to steal them. Thus, the owner despaired from recovering his coins, and the finder may keep them. This reflects Rav Nachman’s other ruling: ראה סלע שנפל משנים – if someone saw a sela fall from one of two people, he must return it, because the owner does not despair of it. Since he is confident that his companion found it, he can force him to make a shevuah in Beis Din and recover his coin (his later despair when his companion will truthfully swear does not permit the coins to the finder, since יאוש שלא מדעת is not considered יאוש). If a coin fell from among three people, he may keep it, because the owner despairs (since he does not know who found it, he cannot force anyone to swear). Rava says that where it is possible that all three people jointly owned the coin, he may not keep it.
- Possible transgressions for unlawfully taking a lost item to keep
Rava said that if one saw a sela fall from its owner, and he took it before the owner despaired of it, with the intent to steal it: עובר בכולן – he transgresses all of [the possible prohibitions], namely: משום "לא תגזול" – you shall not steal, ומשום "השב תשיבם" – and you shall surely return them, ומשום "לא תוכל להתעלם" – and you shall not hide from the lost article. Even if he returns the item after the owner despairs, מתנה הוא דיהיב ליה – he has merely given him a gift, ואיסורא דעבד עבד – but the prohibition that he did, he did. If he took it with the intention to return it, but after the owner despaired, the finder decided to steal it, he only violates "השב תשיבם", since he never returned it [he did not physically steal it when he took it, nor did he violate “hiding” from the item, since he initially took it to return it]. If he waited for the owner to despair, and then took the sela for himself, he only violates "לא תוכל להתעלם."
