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Bava Metzia, 22

1) "YI'USH" IN THE CASE OF A STOLEN ITEM

QUESTION: The Gemara attempts to prove that "Yi'ush she'Lo mi'Da'as" is Yi'ush from a Beraisa that states that if a Ganav or Gazlan steals something from one person and gives it to another, the recipient may keep the item and he does not have to return it, because when something is stolen either through Geneivah or Gezeilah, we assume that in a normal case of theft the owner is Me'ya'esh. Since the owner had Yi'ush, the recipient may keep the item. The Gemara asks that if "Yi'ush she'Lo mi'Da'as" is not considered Yi'ush, then why may the recipient keep the item? We should be concerned that since the Ganav stole the item surreptitiously, perhaps the owner does not yet know that the item is missing! The Gemara answers that when the Beraisa mentions "Ganav," it is not referring to one who steals surreptitiously, but rather it is referring to "Listim Mezuyan," an armed bandit.

The Gemara's question seems to revolve around the fact that the Beraisa considers a normal case of Geneivah to involve Yi'ush of the owner. Why, then, does it cite this proof from a Beraisa, when it could have cited proof from the Mishnah (Kelim 26:8, cited in the end of Bava Kama (114a))? The Mishnah teaches that according to the Chachamim, hides that a Ganav stole become Tamei when a Ganav decides to use them for leaning on, since the Ganav is considered the owner because in a normal case of a stolen item, the owner has Yi'ush. (RITVA in the name of "Yesh Makshim")

ANSWER: The RITVA answers that the Mishnah discussing hides might be referring to hides which we know that the owner has discovered have been stolen. The Beraisa -- which states that the Ganav stole from one person and gave the item to another -- implies that the recipient received it immediately after the theft. The owner probably did not yet realize that the item was stolen. If "Yi'ush she'Lo mi'Da'as" is not considered Yi'ush, then he should be required to return it to its original owner since it reached his hands before Yi'ush.

QUESTION: The Gemara attempts to prove that "Yi'ush she'Lo mi'Da'as" is considered Yi'ush from a Beraisa which discusses a person who separates Terumah without the prior knowledge of the owner of the field. The Beraisa teaches that if the owner of the field later comes and states that he should have taken better fruit as Terumah, the Terumah takes effect because we see that the owner has consented, in retrospect, to the separating of the Terumah. (TOSFOS and the Rishonim explain that this is similar to "Yi'ush she'Lo mi'Da'as," because, normally, the owner will consent to give nice fruit as Terumah because of the Mitzvah involved.)

The Gemara answers that the Beraisa is discussing a person who was appointed as a Shali'ach to separate Terumah but was not told by the owner which produce (the produce of higher quality or of lesser quality) to separate. If he separates good produce and the owner says that he should have separate better produce (and there *is* better produce), then the Terumah takes effect.

The Gemara says that the case must be where the person who separated the Terumah was a Shali'ach, because we learn from the verse that only a Shali'ach can separate Terumah for someone else.

How does this answer the question on Abaye's opinion? If a person must be appointed a Shali'ach in order to separate Terumah, and this Shali'ach was not told explicitly to separate the better produce as Terumah, then he should not be considered a Shali'ach for separating the better produce! Even if the owner later shows his consent to the better produce being separated, it should be like "Yi'ush she'Lo mi'Da'as," since his consent was not known at the time that the produce was separated as Terumah! (TORAS CHAIM)

ANSWER: The RITVA explains that this was indeed the Gemara's question. The Gemara knew all along that the person who separated the Terumah must have been a Shali'ach, since everyone knows that only a Shali'ach can separate Terumah for someone else. Nevertheless, the Gemara thought that this Beraisa supports Rava, as we asked. The Ritva explains the answer of the Gemara to be saying that when a person appoints a Shali'ach, he at least knows that the Shali'ach is doing something for him, even though he has not shown clear consent that better produce be separated. Since he knows about the Shelichus, when he later shows consent for separating produce that is of higher quality than average, we assume that this was his original intention when he appointed the Shali'ach. In the case of "Yi'ush she'Lo mi'Da'as," though, the owner had no knowledge whatsoever that he lost the object, and therefore we cannot assume that his later Yi'ush shows his original intentions. (The Toras Chaim gives a similar answer.)

22b

QUESTION: Rava rules that a "Siman ha'Asuy li'Dares" -- a Siman that will likely be trampled and removed -- is considered a Siman. The Gemara concludes (end of 23a) that this is the Halachah.

How can this ruling be reconciled with the Gemara's ruling earlier on this page that "Yi'ush she'Lo mi'Da'as" is not Yi'ush? Every time someone finds a Metzi'ah without a Siman, we should suspect that the item once had a Siman, but the Siman was removed due to the item being trampled! Even though the owner would certainly acknowledge Yi'ush had he known that the Siman was removed due to being trampled, nevertheless the owner probably does not know that the Siman was removed, according to Rava, since Rava maintains that people do not suspect that the Siman will be removed through trampling. If the owner does not know that the Siman was removed, it should be considered "Yi'ush she'Lo mi'Da'as" and should remain prohibited to take for oneself, even though it has no Siman now! (KOS YESHU'OS)

ANSWER: The answer might be that both Rava and Rabah -- who argue regarding "Siman ha'Asuy li'Dares" and whether the owner is Me'ya'esh because the Siman was trampled -- will agree that most of the time the Siman is not trampled. Nevertheless, Rabah maintains that the owner will still be Me'ya'esh, because there is a strong possibility that the Siman will be trampled, even if it happens only in a significant minority of cases. Therefore, the finder will be entitled to keep an object that he finds that has no Siman, based on the Rov which says that the Siman probably was not trampled, and that the object probably never had a Siman in the first place. Even though we normally do not follow Rov with regard to monetary matters, nevertheless with regard to an Aveidah, a loss object, we do rely on a Rov, since the object is not in anyone else's hands, as we explained earlier (Insights to 21b). (M. Kornfeld)