Bava Metzia 27aבבא מציעא כ״ז א
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27aכ״ז א

בלוקח מן התגר אבל בלוקח מבעל הבית חייב להחזיר וכן תני תנא קמיה דרב נחמן ל"ש אלא בלוקח מן התגר אבל בלוקח מבעל הבית חייב להחזיר

in the case of one who purchases produce from a merchant, who acquired the produce from several suppliers and is unable to determine the source of the coins. But in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller. And likewise, the tanna who recited mishnayot and baraitot in the study hall of Rav Naḥman taught a baraita before Rav Naḥman: The Sages taught that the coins belong to the buyer only in the case of one who purchases produce from a merchant, but in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller.

א"ל רב נחמן וכי בעל הבית בעצמו דשן א"ל איסמיה א"ל לא תתרגם מתני' כגון שדשן ע"י עבדו ושפחתו הכנענים:

Rav Naḥman said to the tanna: But does the owner thresh the grain himself? His workers thresh the grain, and the coins could belong to one of them. The tanna said to Rav Naḥman: Based on the difficulty you raise, should I delete it from the collection of authoritative baraitot? Rav Naḥman said to the tanna: No. Interpret the baraita as referring to a case where the grain was threshed by his Canaanite slave or maidservant, and therefore any coins found intermingled with the produce belong to the owner.

מתני׳ אף השמלה היתה בכלל כל אלו ולמה יצאת להקיש אליה לומר לך מה שמלה מיוחדת שיש בה סימנין ויש לה תובעין אף כל דבר שיש בו סימנין ויש לו תובעים חייב להכריז:

MISHNA: This mishna is an excerpt from a halakhic midrash concerning lost items, based on the verse: “You shall not see your brother’s ox or his sheep wandering, and disregard them; you shall return them to your brother…And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:1, 3). The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that is should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find.

גמ׳ מאי בכלל כל אלו אמר רבא בכלל (דברים כב, ג) כל אבדת אחיך

GEMARA: When the mishna says that the garment was included in the generalization that one must return all of these items, in what generalization is it included? Rava said: It is included in the generalization: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:3).

אמר רבא למה לי דכתב רחמנא שור חמור שה ושמלה

Rava says: Why do I need all the specific items that the Merciful One writes that one must return: An ox, a donkey, a sheep, and a garment? One of them would seem to suffice.

צריכי דאי כתב רחמנא שמלה הוה אמינא ה"מ בעדים דגופה וסימנין דגופה אבל חמור בעדים דאוכף וסימנין דאוכף אימא לא מהדרינן ליה כתב רחמנא חמור דאפילו חמור בסימני האוכף

Rava answers: They are all necessary, as a unique halakha is derived from each example. As, if the Merciful One had written only “garment,” I would say: This matter, i.e., the mitzva to return a lost item, applies only in a case where the owner brings witnesses capable of testifying about the item itself or he describes distinguishing marks concerning the item itself; but with regard to returning a donkey to its owner in a case where he brings witnesses with regard to the saddle or describes distinguishing marks concerning the saddle and not on the donkey, say that we do not return the donkey to the owner. To counter this, the Merciful One writes: “Donkey,” from which it is derived that a donkey is returned to its owner even in a case where he describes distinguishing marks on the saddle.

שור ושה דכתב רחמנא ל"ל שור דאפילו לגיזת זנבו ושה לגיזותיו ולכתוב רחמנא שור דאפילו לגיזת זנבו וכ"ש שה לגיזותיו

Rava continues: With regard to the specific mentions of “ox” and “sheep” that the Merciful One writes, why do I need them? Rava answers: From “ox” it is derived that one must return even the sheared wool of its tail; and from “sheep” it is derived that one must return even its sheared wool. The Gemara challenges: And let the Merciful One write only “ox,” from which it is derived that one must return even the sheared wool of its tail, and derive all the more so that one must return the more substantial sheared wool of a sheep.

אלא אמר רבא חמור דבור לרבי יהודה ושה דאבידה לדברי הכל קשיא

Rather, Rava said: The term “donkey” stated with regard to damage in the category of Pit, according to the opinion of Rabbi Yehuda (see Exodus 21:33 and Bava Kamma 54a), and the term “sheep” stated with regard to a lost item, according to the opinion of everyone, are difficult. There is no explanation for why they are stated.

ואימא לגללים הוא דאתא גללים אפקורי מפקר להו ודילמא לסימנין הוא דאתא דאיבעיא לן סימנין דאורייתא או דרבנן כתב רחמנא שה דאפילו בסימנין מהדרינן וסימנין דאורייתא

The Gemara suggests: And say that the term “sheep” comes to teach the obligation to return the animal’s dung? The Gemara answers: One need not return dung, because the owner has renounced its ownership. The Gemara suggests: And perhaps the term “sheep” comes to teach the obligation to return an item based on its owner providing distinguishing marks, as we raised a dilemma: Is the halakha that an item can be identified using distinguishing marks by Torah law or is it by rabbinic law? Therefore, the Merciful One writes: “Sheep” in order to teach that it is not only through the testimony of witnesses, but even based on distinguishing marks that we return lost items to their owner. Resolve the dilemma and conclude that the halakha that an item can be identified using distinguishing marks is by Torah law.

אמרי מדקתני להו תנא לסימנין גבי שמלה דקתני מה שמלה מיוחדת שיש בה סימנין ויש לה תובעין חייב להכריז אף כל דבר שיש בו סימנין ויש לו תובעין חייב להכריז ש"מ דשה לאו לסימנין הוא דאתא:

The Gemara rejects this proof. The Sages say: One can understand the matter from the fact that the tanna teaches the concept of distinguishing marks together with the term garment. As it is taught in the mishna: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Conclude from it that the term “sheep” does not come to teach the obligation to return an item based on its owner providing distinguishing marks

תנו רבנן (דברים כב, ג) אשר תאבד פרט לאבידה שאין בה שוה פרוטה רבי יהודה אומר ומצאתה פרט לאבידה שאין בה שוה פרוטה

The Sages taught in a baraita: The verse states: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The Rabbis derive that this phrase serves to exclude a lost item in which there is not the value of one peruta, which due to its negligible value is not considered lost. Rabbi Yehuda says that this halakha is derived from the conclusion of that verse: “Which shall be lost from him, and you have found it.” The term “and you have found it” serves to exclude a lost item in which there is not the value of one peruta.

מאי בינייהו אמר אביי משמעות דורשין איכא בינייהו מר נפקא ליה מאשר תאבד ומר נפקא ליה מומצאתה

The Gemara asks: What is the practical difference between the two opinions? Ostensibly, the Rabbis and Rabbi Yehuda both state the same halakha. Abaye said: There is no practical difference. Rather, the interpretation of the meaning of the verse is the difference between them. One Sage, the Rabbis, derives it from the phrase: “Which shall be lost from him”; and one Sage, Rabbi Yehuda, derives it from the term: “And you have found it.”

ולמאן דנפקא ליה מאשר תאבד האי ומצאתה מאי עביד ליה

The Gemara asks: And according to the first Sage, the Rabbis, who derives the halakha that one need not return a lost item worth less than one peruta from the phrase “which shall be lost from him,” what does he do with the term: “And you have found it”?

ההוא מיבעי ליה לכדרבנאי דאמר רבנאי ומצאתה דאתאי לידיה משמע

The Gemara answers: According to the Rabbis, that term is necessary for the derivation of the halakha in accordance with the opinion of Rabbenai. As Rabbenai says in interpreting the verse: “And so shall you do with every lost item of your brother’s, which he has lost, and you have found it” (Deuteronomy 22:3), that the term “and you have found it” means that it assumes the status of a found item only when it actually enters his possession.

ולמאן דנפקא ליה מומצאתה האי אשר תאבד מאי עביד ליה

The Gemara asks: And according to Rabbi Yehuda, who derives the halakha that one need not return a lost item worth less than one peruta from the term: “And you have found it,” what does he do with the phrase: “Which has been lost from him”?

מבעי ליה לכדרבי יוחנן דאמר רבי יוחנן משום ר"ש בן יוחאי מניין לאבידה ששטפה נהר שהיא מותרת שנאמר כן תעשה לכל אבדת אחיך אשר תאבד ממנו ומצאתה מי שאבודה הימנו ומצויה אצל כל אדם יצתה זו שאבודה הימנו ואינה מצויה אצל כל אדם

The Gemara answers: According to Rabbi Yehuda, that phrase is necessary for the derivation of the halakha in accordance with the opinion of Rabbi Yoḥanan. As Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yoḥai: From where is it derived with regard to a lost item that the river swept away that it is permitted for its finder to keep it? It is derived from this verse, as it is written: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The verse states that one must return that which is lost from him, the owner, but is available to be found by any person. Excluded from that obligation is that which is lost from him and is not available to be found by any person; it is ownerless property and anyone who finds it may keep it.

ואידך הא דרבנאי מנא ליה נפקא ליה מומצאתה

The Gemara asks: And the other tanna, Rabbi Yehuda, who derived from the term: “And you have found it,” that one need not return a lost item worth less than one peruta, from where does he derive the halakha of Rabbenai that the item assumes the status of a found item only when it actually comes into his possession? The Gemara answers: Rabbi Yehuda derives it from the superfluous conjunction “and” in the term “and you have found it.”

ואידך הא דרבי יוחנן מנא ליה נפקא ליה ממנו ואידך ממנו לא משמע ליה

The Gemara asks further: And the other tanna, the first tanna, who derives from the phrase “which shall be lost from him” that one need not return a lost item worth less than one peruta, from where do they derive the halakha of Rabbi Yoḥanan that one need not return an item that is lost from him and is not available to be found by every person? The Gemara answers: He derives it from the superfluous term “from him,” in the phrase “which shall be lost from him.” And as for the other tanna, Rabbi Yehuda, he does not learn anything from the term “from him.”

רבא אמר פרוטה שהוזלה איכא בינייהו מ"ד מאשר תאבד איכא ומ"ד מומצאתה ליכא

Abaye explained that there is no practical difference between the opinion of the first tanna and Rabbi Yehuda. By contrast, Rava said: The practical difference between them is with regard to an item that was worth one peruta when it was lost but that was then devalued and was worth less than one peruta when it was found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase “which shall be lost from him,” there is an obligation to return the item, as that verse is referring to the value of the item when it was lost. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “And you have found it,” there is no obligation to return the item, as that verse is referring to the value of the item when it is found.

ולמ"ד אשר תאבד הא בעינן ומצאתה וליכא

The Gemara asks: But even according to the one who says that the halakha is derived from the phrase “which shall be lost from him,” do we not require the item to be worth one peruta when it is found, based on the term “and you have found it”? And in this case, it is not worth one peruta when it is found, so he should agree that it need not be returned.

אלא פרוטה שהוקרה איכא בינייהו מאן דאמר ומצאתה איכא ומאן דאמר אשר תאבד ליכא

Rather, the practical difference between them is with regard to an item worth less than one peruta when it was lost that appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the term: “And you have found it,” there is an obligation to return the item, as that verse is referring to its value when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is no obligation to return the item, as that verse is referring to the value of the item when it was lost.

ולמאן דאמר ומצאתה הא בעינן אשר תאבד וליכא

The Gemara asks: But even according to the one who says that the halakha is derived from the term “and you have found it,” do we not require the item to be worth one peruta when it is lost, based on the phrase “which shall be lost from him”? And in this case, it is not worth one peruta when it was lost, so he should agree that it need not be returned.

אלא פרוטה שהוקרה והוזלה וחזרה והוקרה איכא בינייהו מאן דאמר אשר תאבד איכא ומאן דאמר ומצאתה בעינן דאית בה שיעור מציאה משעת אבידה ועד שעת מציאה:

Rather, the practical difference between them is with regard to the case of an item worth one peruta when it was lost that appreciated in value and was devalued in the interim and was worth less than one peruta, and then appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is an obligation to return the item, as the verse is referring to its value only when it was lost and when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from: “And you have found it,” there is no obligation to return the item, as we require that there will be the value of one peruta, the requisite measure of a lost item, from the time of its loss and until the time of its finding, as the conjunction “and” connects the time of the finding to the time of the loss.

איבעיא להו סימנין דאורייתא או דרבנן מאי נפקא מינה

§ A dilemma was raised before the Sages: Is identification of an item on the basis of distinguishing marks by Torah law or is it by rabbinic law? The Gemara asks: What difference is there whether it is by Torah law or by rabbinic law?