Bava Metzia 12bבבא מציעא י״ב ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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12bי״ב ב

עשו שאינו זוכה כזוכה מ"ט עניים גופייהו ניחא להו כי היכי דכי אגרו לדידהו נלקוט בנייהו בתרייהו

The Sages instituted an ordinance rendering a son of the sharecropper, who does not have the right to acquire property, like one who has the right to acquire property; i.e., they granted him a special right to acquire the gleanings. What is the reason for this ordinance? This arrangement is satisfactory for the poor people themselves, so that when they are hired under similar terms themselves, their sons will be able to glean the stalks after them.

ופליגא דר' חייא בר אבא דאמר רבי חייא בר אבא אמר רבי יוחנן לא גדול גדול ממש ולא קטן קטן ממש אלא גדול וסמוך על שלחן אביו זהו קטן קטן ואינו סמוך על שלחן אביו זהו גדול:

The Gemara comments: And Shmuel, in his above explanation of the mishna, disagrees with the opinion of Rabbi Ḥiyya bar Abba. As Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: The word adult in the mishna is not referring to an actual adult, and the word minor is not referring to an actual minor. Rather, with regard to an adult son who is dependent on the food of his father’s table for support, this is considered a minor in the context of the mishna. It is appropriate for one who is reliant on his father’s support to give items that he finds to his father. And with regard to a minor son who is not dependent on the food of his father’s table for support, this is considered an adult in this context, and any lost item that he finds is his.

מציאת עבדו ושפחתו העברים הרי הוא של עצמן: אמאי לא יהא אלא פועל ותניא מציאת פועל לעצמו במה דברים אמורים בזמן שאמר לו נכש עמי היום עדור עמי היום

§ The mishna teaches: The found item of his Hebrew slave or maidservant, it is theirs. The Gemara asks: Why does it not belong to the master? Let the slave be considered merely a laborer; and it is taught in a baraita: The found item of a laborer, i.e., a lost item that he found, belongs to him and not to his employer. In what case is this statement, that the item belongs to the laborer, said? It is said when the employer told the laborer to perform a specific task, e.g., he said to him: Weed for me today, or: Till for me today. Since the employer specified the task that he hired the laborer to perform, and that task did not include finding lost items, the laborer has rights to the item that he himself found.

אבל אמר לו עשה עמי מלאכה היום מציאתו לבעל הבית

The baraita continues: But if the employer said to the laborer: Work for me today, without specifying the nature of the work, the found item is the employer’s, as finding ownerless items is included within the general category of work. Since a Hebrew slave is duty-bound to perform all types of labor for his master, why doesn’t his master acquire all items that he finds?

אמר רבי חייא בר אבא אמר רבי יוחנן הכא בעבד נוקב מרגליות עסקינן שאין רבו רוצה לשנותו למלאכה אחרת

Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: Here we are dealing with a slave who pierces pearls [margaliyyot], which is such a profitable activity that his master would not want to transfer him to another line of work even for a moment. Therefore his status is like that of a laborer who is hired to perform a specific task.

רבא אמר במגביה מציאה עם מלאכתו עסקינן

Rava said: We are dealing with a case where the slave lifts a found item along with performing his work. Since there is no need for him to interrupt his work in order to take the item, his taking the item costs his master nothing, so it belongs to the slave.

רב פפא אמר כגון ששכרו ללקט מציאות והיכי דמי דאקפי אגמא בכוורי:

Rav Pappa said: An item found by a laborer belongs to his employer only in a case where he hired him specifically to collect found items. The Gemara asks: But what are the circumstances in which one would hire a person to find ownerless items? The Gemara answers: It is in a case where a lake flooded its shore with fish, and after the water receded, the fish remained on the shore. One would hire laborers to gather those fish.

האי שפחה היכי דמי אי דאייתי שתי שערות מאי בעיא גביה

§ The mishna teaches that an item found by a Hebrew maidservant belongs to her. The Gemara asks: What are the circumstances of this maidservant? If the reference is to a maidservant who has grown two pubic hairs, which is a sign of adulthood, why is she with her master? A Hebrew maidservant who reaches adulthood is emancipated.

ואי דלא אייתי שתי שערות אי איתיה לאב דאבוה הויא ואי דליתיה לאב תיפוק במיתת האב

And if she is a maidservant who has not yet grown two pubic hairs and is still considered a minor, then if her father is still alive, the found item is her father’s, and if her father is not still alive, she should have gone free with the death of her father.

דאמר ריש לקיש אמה העבריה קנה עצמה במיתת האב מרשות האדון מקל וחומר ולאו איתותב ריש לקיש

As Reish Lakish says: A Hebrew maidservant acquires herself from the authority of her master through the death of her father, and this halakha is derived from an a fortiori inference: Signs indicating puberty release her from her master’s authority but do not release her from her father’s authority, as although she shows signs indicating puberty she remains under her father’s authority with regard to certain matters. Therefore, is it not logical that her father’s death, which releases her entirely from the father’s authority, would release her from the authority of her master? Clearly, there is no situation where a Hebrew maidservant can acquire an item that she finds. The Gemara answers: But wasn’t the opinion of Reish Lakish conclusively refuted? It is not accepted as halakha.

נימא מהאי נמי תיהוי תיובתא

The Gemara suggests: Let us say that there is a conclusive refutation of his opinion from this mishna as well. If a Hebrew maidservant is emancipated once her father dies, there is no possible situation in which a Hebrew maidservant who finds an ownerless item acquires it for herself.

לא לעולם דאיתיה לאב ומאי הרי הן שלהן לאפוקי דרבה:

The Gemara rejects this suggestion: This mishna is not a refutation of Reish Lakish’s opinion, as perhaps it is actually referring to a case where the father is alive. And what is the meaning of the phrase: They are theirs? It does not mean that the item belongs to the maidservant; rather it is stated in order to exclude the possibility that it belongs to her master. The maidservant acquires the found item, and through her, her father acquires it.

מציאת אשתו: גירשה פשיטא

§ The mishna teaches that the found item of his ex-wife, whom he divorced, belongs to her, even if he has not yet given her payment of the marriage contract that he owes her. The Gemara asks: If he divorced her, it is obvious that the item is hers. Why does the mishna specify this?

הכא במאי עסקינן במגורשת ואינה מגורשת דאמר רבי זירא אמר שמואל כל מקום שאמרו חכמים מגורשת ואינה מגורשת בעלה חייב במזונותיה

The Gemara answers: Here we are dealing with a case where there is uncertainty whether she is divorced or whether she is not divorced. As Rabbi Zeira says that Shmuel says: Everywhere that the Sages said that there is uncertainty whether a woman is divorced or whether she is not divorced, her husband remains obligated to provide for her sustenance. Furthermore, the Sages instituted an ordinance that an item found by a wife belongs to her husband, and that this right is reciprocal to his obligation to provide for her sustenance. Therefore, one might reason that here too, since the husband is still obligated to provide for his wife he retains the right to items that she finds.

טעמא מאי אמור רבנן מציאת אשה לבעלה כי היכי דלא תיהוי לה איבה הכא אית לה איבה ואיבה:

But this is not the halakha, as what is the reason that the Sages said that an item found by a wife belongs to her husband? It is so that she should not be subject to her husband’s enmity due to the fact that he is supporting her and yet she keeps any item that she finds. Here, however, let her be subject to much enmity. He should resolve the uncertainty and finalize the divorce as soon as possible, and perhaps this enmity will facilitate reaching that goal.

מתני׳ מצא שטרי חוב אם יש בהן אחריות נכסים לא יחזיר שבית דין נפרעין מהן אין בהן אחריות נכסים יחזיר שאין בית דין נפרעין מהן דברי רבי מאיר

MISHNA: With regard to one who found promissory notes, if they include a property guarantee for the loan he may not return them to the creditor, as, if he were to return them, the court would then use them to collect repayment of the debts from land that belonged to the debtor at the time of the loan, even if that land was subsequently sold to others. If they do not include a property guarantee, he returns them to the creditor, as in this case the court will not use them to collect repayment of the debt from purchasers of the debtor’s land. This is the statement of Rabbi Meir.

וחכמים אומרים בין כך ובין כך לא יחזיר מפני שבית דין נפרעין מהן:

And the Rabbis say: In both this case and that case he should not return the promissory notes to the creditor, as, if he were to return them, the court would in any event use them to collect repayment of the loan from purchasers of the debtor’s land.

גמ׳ במאי עסקינן אילימא כשחייב מודה כי יש בהן אחריות נכסים אמאי לא יחזיר הא מודה ואי כשאין חייב מודה כי אין בהן אחריות נכסים אמאי יחזיר נהי דלא גבי ממשעבדי מבני חרי מגבא גבי

GEMARA: With what case are we dealing? If we say it is a case when the liable party, i.e., the debtor, admits that he wrote the promissory notes and that the debts have not yet been repaid, then when the promissory notes include a property guarantee, why should the finder not return them to the creditor? Doesn’t the debtor admit to the debts? And if it is in a case when the debtor does not admit to the debts, claiming that he dropped the promissory notes after he repaid his debts, then even when the promissory notes do not include a property guarantee, why should the finder return them to the creditor? Granted, the creditor cannot collect these debts from liened property that has been sold, but he can collect from unsold property. The returning of the promissory note would be disadvantageous to the borrower, who claims that he repaid the loan.

לעולם כשחייב מודה והכא היינו טעמא דחיישינן שמא כתב ללות בניסן ולא לוה עד תשרי ואתי למטרף לקוחות שלא כדין

The Gemara answers: Actually, the mishna is referring to a case when the liable party admits to the debts, and here, this is the reason that the finder may not return the promissory notes: It is that we are concerned that perhaps the debtor wrote in the promissory note that he would borrow the money in Nisan but he did not actually borrow the money until Tishrei, and between Nisan and Tishrei he sold land. These lands are not liened to the debt, as the liability to repay the loan took effect only when he actually borrowed the money. And the creditor will come to repossess the land that was sold between Nisan and Tishrei from the purchasers, unlawfully.

אי הכי כל שטרי דאתו לקמן ניחוש להו הכי

The Gemara asks: If so, if the court must be concerned that the date on a promissory note predates the actual loan, we should likewise be concerned that all promissory notes that come before us to the court are perhaps predated.

כל שטרי לא ריעי הני ריעי

The Gemara answers: The credibility of all promissory notes in general has not been compromised, as they remain in the creditor’s possession, which is the correct location in the case of an outstanding loan. The credibility of these promissory notes has been compromised by the fact that they were lost.

אלא הא דתנן כותבין שטר ללוה אף על פי שאין מלוה עמו לכתחילה היכי כתבינהו ניחוש שמא כתב ללות בניסן ולא לוה עד תשרי ואתי למטרף לקוחות שלא כדין

The Gemara asks: But with regard to that which we learned in a mishna (Bava Batra 167b): One may write a promissory note for a borrower even if the lender is not with him because it is the borrower who assumes liability based on the note, the question arises: How can one write this promissory note ab initio? Let us be concerned that perhaps the borrower wants to write the note as he intends to borrow money in Nisan, but will ultimately not borrow the money until Tishrei, and the lender might then come to repossess the land that the borrower sells between Nisan and Tishrei from the purchasers, unlawfully.

אמר רב אסי

Rav Asi said: