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Bava Metzia, 19

1) THE DIFFERENCE BETWEEN THE TRUSTWORTHINESS OF A TALMID CHACHAM AND AN AM HA'ARETZ

QUESTION: Rabah bar bar Chanah stated that a lost object may be returned to the claimant even when the claimant identifies the object merely with "Tevi'us Ayin." However, this applies only to a Talmid Chacham, who is trusted not to lie. An Am ha'Aretz, on the other hand, may not retrieve a lost object based on "Tevi'us Ayin," because we cannot trust his word.

This distinction between a Tamid Chacham and an Am ha'Aretz is difficult to understand. Nowhere in the Torah do we find that the trustworthiness of a person depends on whether he is an Am ha'Aretz or a Talmid Chacham (except according to the opinion of RABEINU CHANANEL, who differentiates between a Talmid Chacham and an Am ha'Aretz with regard to trusting a single witness in the case of Isurim; the Rishonim, however, all argue with Rabeinu Chananel's opinion -- see RAMBAN and RAN in Chulin 96a). Why, then, do we return a lost object to a Talmid Chacham when he identifies it based on "Tevi'us Ayin," and we do not return a lost object to an Am ha'Aretz when he identifies it in the same manner? If "Tevi'us Ayin" is a sufficient form of identification, then it should be accepted even when the claimant is an Am ha'Aretz. If, on the other hand, "Tevi'us Ayin" is not a sufficient form of identification, then even when the claimant is a Talmid Chacham we should not return the item to him!

This question is not so difficult with regard to lost money or any object that has only monetary value. We can understand that the Torah establishes a difference between a Talmid Chacham and an Am ha'Aretz with regard to their trustworthiness, because the Torah states, "Ad Derosh Achicha" (Devarim 22:2), from which the Mishnah (28b, see Gemara 27b) learns that the finder must ascertain whether the claimant is a liar or is trustworthy. We see that the Torah -- with regard to returning a lost object -- requires that the trustworthiness of the claimant be checked. Therefore, since we know that a Talmid Chacham does not alter the truth, we accept his word when he identifies the object. An Am ha'Aretz is not trusted, though, because we have no proof yet that he does not alter the truth.

However, our Sugya is discussing a *Get* that was lost. There is much more at stake with a lost Get than just monetary value, for the Get itself might have an insignificant monetary value (such as less than a Shaveh Perutah). The purpose of returning the Get to the one who lost it is in order to effect Gerushin, divorce. Divorce is an issue of Isur, and with regard to Isur -- as we mentioned above -- we do not find that the Torah differentiates between the trustworthiness of a Talmid Chacham and that of an Am ha'Aretz!

ANSWERS:

(a) The RAMBAN in Gitin (27a, in his explanation of Rashi there) writes that, indeed, with regard to their trustworthiness for matters of Isur, we do not differentiate between a Talmid Chacham and an Am ha'Aretz. Accordingly, here, too, in the case of a lost Get, we should not differentiate between the trustworthiness of a Talmid Chacham and an Am ha'Aretz. Nevertheless, we do differentiate between a Talmid Chacham and an Am ha'Aretz with regard to "*Tevi'us Ayin*," but not because of trustworthiness (that a Talmid Chacham is trusted not to lie, while an Am ha'Aretz is suspected of lying). Rather, the difference between them is because a Talmid Chacham is much more exacting in what he notices, while other people do not notice the precise details of the object. Hence, when a Talmid Chacham says that he recognizes the object to be his, we return it to him, but when an Am ha'Aretz says that he recognizes the object to be his, we do not return it to him because perhaps the object is not his and, since he does not notice all of the fine details of his object, he is not aware that the object is not his.

TOSFOS (here and in Gitin) in the name of RABEINU TAM, however, writes that an Am ha'Aretz, like a Talmid Chacham, is able to recognize a lost object that belongs to him with "Tevi'us Ayin." The reason why his word is not accepted is because of the lack of trustworthiness. According to this, our original question returns -- why is there a difference between the trustworthiness of a Talmid Chacham and that of an Am ha'Aretz in this case, when there is no such difference in all other cases of Isur in the Torah?

(b) It could be that, as the ACHI'EZER (Gitin 27a, #4) writes, since a Get involves both an issue of Isur and an issue of money (such as the Kesuvah and the monetary obligations that each party has to the other), the Chachamim treated a Get like a monetary matter (l'Chumra). Hence, due to the monetary matter involved, we do not accept the word of the Am ha'Aretz when he identifies the Get based on "Tevi'us Ayin," even though his word would be accepted with regard to the Isur element involved. When Tosfos writes that an Am ha'Aretz is not believed with regard to "Tevi'us Ayin," he is referring to the monetary issue involved.

(It is interesting to note that the RAMBAM (Hilchos Gerushin 3:9) does not differentiate between a Talmid Chacham and an Am ha'Aretz with regard to "Tevi'us Ayin" of a lost Get. The Ramban in Gitin there explains that this is because, as we wrote above, with regard to all matters of Isur in the Torah, we do not differentiate between the trustworthiness of a Talmid Chacham and that of an Am ha'Aretz.) (I. Alseich)

QUESTION: The Gemara relates that Rabah bar bar Chanah lost a Get in the Beis ha'Midrash. He said that if a Siman is necessary to have it returned to him, then he has a Siman. If "Tevi'us Ayin" is necessary to have it returned to him, then he has "Tevi'us Ayin." They returned the Get to him, and he said, "I do not know whether they hold that Simanim are mid'Oraisa, and that is why they returned it to me, or whether it was because of the 'Tevi'us Ayin' that they returned it to me (and if so, only a Talmid Chacham can retrieve a lost item based on 'Tevi'us Ayin')."

RASHI explains that Rabah bar bar Chanah was a Shali'ach who was delivering a Get on behalf of another person.

Why does Rashi explain that Rabah bar bar Chanah was a Shali'ach, and not that he was the husband himself? (MAHARAM SHIF, Gitin 27a)

ANSWERS:

(a) The MAHARAM SHIF answers that Rashi assumed that Rabah bar bar Chanah was just a Shali'ach to deliver a Get, because it is inappropriate to assume that he was divorcing his wife.

(b) REBBI AKIVA EIGER (Teshuvos, Mahadura Kama #107) answers that Rashi understood that Rabah bar bar Chanah *must* have been a Shali'ach and could *not* have been divorcing his own wife. If he had been divorcing his own wife, then, mid'Oraisa, he certainly would have been believed to say that the Get that was found was his, since he would have had a "Migu" that he could have divorced her anyway by writing another Get. It was only mid'Rabanan that he would not have been believed, because of the fear that the Get belonged to someone else. If that were the case, though, then Rabah bar bar Chanah would not have said that perhaps they returned the Get to him because "they hold that Simanim are mid'Oraisa" -- even if Simanim are *not* mid'Oraisa but only mid'Rabanan, they would have returned the Get to him, because mid'Oraisa he was believed anyway with a "Migu" (and the Simanim, which are mid'Rabanan, would have taken care of the fear of the Rabanan that the Get belonged to someone else)! This is what Rashi saw which forced him to explain that Rabah bar bar Chanah was not the husband himself, but he was merely the Shali'ach; a Shali'ach has no "Migu," and thus the concern that the Get belongs to someone else is a concern mid'Oraisa, since we have no basis (like a "Migu") for believing him or assuming that he is not lying. That is why Rabah bar bar Chanah said that perhaps they returned the Get to him because "they hold that Simanim are mid'Oraisa," and thus the Simanim take care of his lack of trustworthiness mid'Oraisa and allow us to return to him the Get.

(c) The BEIS AHARON answers that Rashi understood that if it was the husband himself who lost the Get, then certainly he would have been believed with "Tevi'us Ayin," because of a "Migu" that it was in his hands to divorce her (as Tosfos writes in Gitin 28a with regard to a Shali'ach who found the Get that he himself lost; when the Shali'ach testifies that he lost the Get but found it himself, he is believed because of a "Migu" that he could have said that he never lost it in the first place). Accordingly, the husband would have been believed because of the "Migu" even if he was an Am ha'Aretz and not a Talmid Chacham. Why, then, did Rabah bar bar Chanah state that if the Get was returned to him based on "Tevi'us Ayin," it was because he was a "Tzurba m'Rabanan?" It would have been returned to him even if he was not a "Tzurba m'Rabanan" because of the "Migu!" It must be that he was only a Shali'ach to bring a Get, and thus he did not have a "Migu."

19b