Week 2 Talmud - Found Objects

(1) The early commentaries ask why this chapter, which discusses details of the halakhot of found items, precedes the second chapter, which discusses the fundamental halakhot of found items.
Tosafot explain that as tractate Bava Metzia follows tractate Bava Kamma, the halakhot of found items are elucidated in this chapter as a continuation of the topics discussed in the last chapter of Bava Kamma, which discussed the division of items between litigants by means of an oath, which is also the ruling in the mishna here (see Shita Mekubbetzet). The Rosh explains that because there is a suspicion of theft in this case, these matters are juxtaposed with the halakhot of theft, which are described at length in Bava Kamma.

If two people came to court holding a garment, and this one, the first litigant, says: I found it, and that one, the second litigant, says: I found it; this one says: All of it is mine, and that one says: All of it is mine; how does the court adjudicate this case? This one takes an oath that he does not have ownership of less than half of it, and that one takes an oath that he does not have ownership of less than half of it, and they divide it. If this one says: All of it is mine, and that one says: Half of it is mine, since they both agree that half of the cloak belongs to one of them, the conflict between them is only about the other half. Therefore, the one who says: All of it is mine, takes an oath that he does not have ownership of less than three parts, i.e., three-fourths, of it, and the one who says: Half of it is mine, takes an oath that he does not have ownership of less than one-quarter of it. This one takes three parts, and that one takes one-quarter.

(2) If two people were sitting in a riding position on the back of an animal, e.g., a donkey or camel, or one was sitting in a riding position on the animal and one was leading it by its halter, and this one says: All of it is mine, and that one says: All of it is mine, how does the court adjudicate this case? This one takes an oath that he does not have ownership of less than half of it, and that one takes an oath that he does not have ownership of less than half of it, and they divide it. When they admit to the validity of each other’s claims or when they each have witnesses attesting to their claims, they divide the disputed item without taking an oath, as an oath is administered only in a case where the parties have no other way to prove their claims.

(3) If one was riding on an animal and saw a found item, and said to another person who was walking beside him: Give it to me, if the pedestrian took it and said: I have acquired it for myself, he has acquired it by means of lifting it, even though he did not see it first. But if, after giving it to the one riding the animal, he said: I acquired it for myself at the outset, he has said nothing and the rider keeps the item.

(4) If one saw a found item and fell upon it, intending to thereby acquire it, but did not employ one of the formal modes of acquisition, and then another came and seized it, the one who seized it acquired it because he employed one of the formal modes of acquisition. If one saw people running after a found ownerless animal, e.g., after a deer crippled by a broken leg, or after young pigeons that have not yet learned to fly, which can be caught easily, and he said: My field has effected acquisition of this animal for me, it has effected acquisition of it for him. If the deer were running in its usual manner, or the young pigeons were flying, and he said: My field has effected acquisition of this animal for me, he has said nothing, as one’s courtyard cannot effect acquisition of an item that does not remain there on its own.

(5) With regard to the found item of one’s minor son or daughter, i.e., an ownerless item that they found; the found item of his Canaanite slave or maidservant; and the found item of his wife, they are his. By contrast, with regard to the found item of one’s adult son or daughter; the found item of his Hebrew slave or maidservant; and the found item of his ex-wife, whom he divorced, even if he has not yet given her payment of the marriage contract that he owes her, they are theirs.

(6) 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. 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.

(7) If one found bills of divorce, or bills of manumission of slaves, or wills, or deeds of a gift, or receipts, he may not return these items to the one who is presumed to have lost them, as I say it is possible that they were written and then the writer reconsidered about them and decided not to deliver them.

(8) If one found documents of appraisal of a debtor’s property for the purpose of debt collection; or documents concerning food, which were drawn up when one accepted upon himself to provide sustenance for another; documents of ḥalitza; or documents of refusal of a girl upon reaching majority to remain married to the man to whom her mother or brothers married her as a minor after the death of her father; or documents of beirurin, a concept that will be explained in the Gemara; or any court enactment, e.g., a promissory note that has been authenticated by the court, in all of these cases, the finder must return the document to its presumed owner. If one found documents in a ḥafisa or in a deluskema, both of them types of containers, or if he found a roll of documents or a bundle of documents, he must return them. And how many documents are considered to be a bundle of documents? It is three that are tied together. Rabban Shimon ben Gamliel says: If the documents make reference to loans of one person who borrowed money from three people, the finder must return them to the debtor, as they were presumably in his possession before being lost. If the documents make reference to loans of three people who borrowed money from one person, he must return them to the creditor, as they were presumably in his possession before being lost. If one found a document among his documents that were given to him by other people as a trustee, and he does not know what its nature is, i.e., he does not remember who gave it to him or whether the debt mentioned in it has been paid, the document is placed aside until Elijah the prophet comes and clarifies the issue through his prophecy. If there are cancellations of contracts [simponot] among them, he should do what is stated in the simponot.