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Bava Metzia, 23

1) "MA'AVIRIN AL HA'OCHLIN"

QUESTION: The Gemara proposes that whether or not a "Siman he'Asuy li'Dares" is a Siman is a Machlokes Tana'im between Rebbi Yehudah and the Tana Kama, who argue whether one who finds a "Kikar uv'Socho Ma'os" must announce his find. The Gemara explains that it is possible that both Rebbi Yehudah and the Tana Kama maintain "Ma'avirin Al ha'Ochlin," and they argue whether the Siman that the owner knows he has on the loaf will prevent the owner from giving up hope of retrieving it because "Siman he'Asuy li'Dares" *is* a Siman, or whether he will give up hope because "Siman he'Asuy li'Dares" is *not* a Siman.

Why should the owner give up hope and think that the Siman on the loaf will be destroyed because of "Ma'avirin Al ha'Ochlin?" Both RASHI and TOSFOS (DH Ein Ma'avirin) explain that "Ma'avirin" does not mean that people step on and trample the bread, but that people pass by it and do not pick it up (Tosfos proves this from the Sugya in Eruvin). Even if people do not pick up the bread, the Siman on the bread will not become destroyed because neither Jews nor Nochrim will step on it out of fear of Kishuf, as the Gemara earlier says. The owner will also not be concerned that animals will step on the loaf and destroy the Siman, because, as the Gemara established earlier, we are discussing a place in which animals are not normally found. It cannot be that the Gemara means that Rebbi Yehudah and the Tana Kama are discussing an area where animals *are* commonly found (not like the Gemara earlier), or that they hold that people are not afraid of Kishuf (not like the Gemara earlier), for then it would not be necessary for the Gemara to assert that they hold "Ma'avirin Al ha'Ochlin." Even if they hold "*Ein* Ma'avirin Al ha'Ochlin," the owner will still be Me'ya'esh according to the Tana Kama who argues with Rebbi Yehudah, either because of the presence of animals or because of the presence of Nochrim, as the Gemara says earlier! (MELO HA'RO'IM)

ANSWERS:

(a) The RITVA addresses this question and explains that when the Gemara here says "Ma'avirin Al ha'Ochlin," it is not using the phrase in its usual context (as it did in the beginning of the Sugya). Rather, it means that people actually step on the food.

According to the Ritva, it seems that the Gemara actually means either that people are not afraid of Kishuf and therefore they step on the bread, or that animals are common in that area and they step on the bread. It is not referring to the Halachic issue of whether one must pick up the bread as soon as he sees it. The reason it uses the phrase "Ma'avirin Al ha'Ochlin" in this unconventional meaning is only because it used that term earlier, and so here it borrows the term.

(b) The MELO HA'RO'IM answers that the term "Ein Ma'avirin Al ha'Ochlin" may be understood in the same context as it is used earlier. Even though people do not step on the loaf because of Kishuf, and animals are not commonly found in the area, nevertheless if the loaf will be left in a place long enough it will eventually become trampled either by Ketanim or by Shotim who are not worried about Kishuf, or by the animals that infrequently pass through the area.

This perhaps is the intention of Rashi when he emphasis in our Sugya that "Ein Ma'avirin Al ha'Ochlin" does not mean that it is not permitted to step on loaves, but rather it means that it is not permitted to allow the loaf to remain on the ground, but one must pick it up as soon as he finds it. Why does Rashi need to emphasize this here? If his only source for this interpretation is from the Sugya in Eruvin (as we find in Tosfos), then it would not be necessary for Rashi to make a point of explaining it here so that we not misunderstand the meaning of "Ein Ma'avirin Al ha'Ochlin."

Rather, it seems that Rashi was bothered by the question of the Melo ha'Ro'im. If "Ma'avirin" means stepping on the loaf, then why would the Gemara suggest that -- according to the Tana Kama who argues with Rebbi Yehudah -- if we say "Ma'avirin Al ha'Ochlin" then the owner will be Me'ya'esh because the Siman on the loaf is "Asuy li'Dares?" Why should that be so? Even if the Halachah permits stepping on the loaf, people will not step on it because of the fear of Kishuf! The Gemara should have added that the owner is Me'ya'esh because people are not afraid of Kishuf, and therefore they will step on the loaf. If people *are* afraid of Kishuf, then the owner will never give up hope, as the Gemara says earlier, even though the loaf was left in Reshus ha'Rabim for an indefinite period of time.

This is what forced Rashi to explain that "Ein Ma'avirin Al ha'Ochlin" really means that it is not permitted to *leave* it lying on the ground. The Gemara means that if it were left lying indefinitely, the Siman would certainly be trampled (by Ketanim or Shotim). The Siman remains intact only because the first Jew who sees it will pick it up. That is why the Gemara suggests that if we say "Ma'avirin al ha'Ochlin," and Jews are not commanded to pick up the loaf, then we assume that the original owner is Me'ya'esh because the Siman will eventually be trampled by Ketanim and Shotim.

23b

QUESTIONS: The Gemara points out that there is a contradiction between our Mishnah, which states that one must announce barrels of wine or oil that one found, and the Beraisa, which states that the finder may keep them. Rebbi Zeira answers that the Mishnah is discussing barrels that have been opened and were re-sealed ("Rashum"). The Beraisa, on the other hand, is discussing a barrel that was opened and not re-sealed. The cover is resting on it without sealant.

RASHI (DH b'Rashum) writes that when Ba'alei Batim who produce the wine are ready to sell their wine (in Shevat or Nisan), they remove the covers in order to allow the storeowners to taste the wine, and then the storeowners close and seal them with sealant. This is called "Roshem." The Siman of the barrel mentioned in the Mishnah is that it has a Roshem, because some storeowners make a Roshem before taking the barrel, and some storeowners take the barrel without re-sealing it with intention to sell the contents immediately. Rashi's words imply that the Siman of Roshem is that the owner identifies the barrel by saying that it has been re-sealed and was not left open.

This is difficult to understand for a number of reasons.

(a) Many of the barrels that the storeowners take are re-sealed. Why, then, should the one who lost a barrel be able to identify his barrel merely by saying that it was re-sealed? How can that be an identifying mark if many barrels are re-sealed? (RITVA, CHOCHMAS MANO'ACH)

(b) If the fact that it is sealed is considered a Siman, then when the owner identifies the barrel by saying that his barrel was *not* sealed, then that should also be a Siman! Why, then, does the Beraisa say that if the barrel is open (i.e. not sealed) then the one who finds it may keep it because it has no Siman? (RASHASH, MAHARAM SHIF)

ANSWER: TOSFOS (DH b'Rashum) and all of the other Rishonim argue with Rashi and write that each Roshem is made slightly differently than the other, and, therefore, the Siman is not that it has a Roshem, but the way the Roshem looks. The fact that it has a Roshem is not a Siman since most barrels have a Roshem.

The RASHASH suggests that Rashi does not mean to argue with Tosfos on this point. Rashi also means that the Siman is the way the Roshem looks and not the fact that the barrel has a Roshem.

What, then, does Rashi mean when he writes that a Roshem is a Siman "*because* there are people who seal their barrels with a Roshem, and some people leave their barrels open in order to sell immediately?" Perhaps there is an error in our version of Rashi, and instead of saying "*because* there are people...," it should say "*and* there are people..." ("v'Yesh" instead of "she'Yesh").

Alternatively, the words beginning with "she'Yesh..." belong in the end of the following comment in Rashi, which is explaining the word "b'Pasu'ach" in the Gemara.

Why does Rashi not emphasize that each person seals the barrel in a different manner, as Tosfos says? Perhaps Rashi is bothered by the question of Tosfos (in DH Abaye): why does Abaye argue with Rebbi Zeira and maintain that Roshem is not a Siman? Tosfos there answers that the Ba'al ha'Bayis who produced the wine is the one who makes the Roshem before selling the barrels, and the storeowner who purchases the barrel is the one who probably lost it. Since many storeowners purchase from the same Ba'al ha'Bayis, a Roshem cannot be an adequate Siman for the storeowner to prove that it belongs to him and not to any of the other purchasers.

However, it seems that Rashi and Tosfos argue with regard to *who* makes the Roshem. Tosfos maintains that the Ba'al ha'Bayis makes the Roshem. Rashi may have rejected that approach, because according to that approach it should be obvious that the Roshem is not a Siman for the storeowner, even according to Rebbi Zeira (just like the Kikaros Shel Nachtom, the loaves of the professional baker, have no identifying mark that the purchaser can give, since many people purchase their bread from a single baker; see RASHASH to the Mishnah 21a). Rashi explains, therefore, that the storeowner who purchases the barrel is the one who makes the Roshem (see end of Rashi DH b'Rashum). The Roshem that the storeowner makes can identify that the barrel is his. However, according to this explanation, it is not clear why Abaye argues and says that the Roshem is not a valid Siman. Rashi explains that the storeowners do not intentionally make identifying marks on all the barrels that they sell. Rather, they can give general Simanim to show that they closed the barrels (for example, they say that a lot of tar or mortar was used, or that it was sealed neatly, or they say how far down on the barrel the sealant reached, etc.). Abaye maintains that this is not an adequate Siman, since it is possible that two people happened to seal their barrels in the same way. This is why Rashi does not emphasize that every Roshem is made differently from every other -- since the differences between the different types of Roshem are not intentional. (This is not a "Siman ha'Ba me'Elav" because it is an externally-visible Siman, as Tosfos writes on 23a, DH Siman.)

QUESTION: The Gemara discusses whether or not the place (Makom) in which a barrel is found is a Siman. The Gemara concludes that if it is found along the river bank, then the place is not a Siman, because many people leave their barrels on the river bank. The Gemara then explains that the river bank is not a Siman because we tell the person who gives such a Siman that just as he left a barrel on the river bank, someone else may have left a barrel there.

The Gemara presents another version of this statement. It asks why is it that the Rabanan say that Makom is not a Siman. and it answers because just as the claimant might have left a barrel in this place, someone else might have left a barrel in this place.

It seems that the difference between the two versions of this statement is that the first version holds that Makom is a Siman, unless that Makom is the river bank. The second version holds that Makom is never a Siman. However, RASHI (DH Ika d'Amri) writes that the difference between the two versions is that according to the second version, even if the owner gives an exact description of the place where the barrel was found, it is not a Siman. The words of Rashi imply that he is not discussing whether a Makom in general is a Siman, but whether it is considered a Siman if the barrel is found on the river bank, but the owner can identify exactly at which part of the river bank it was found. The second version holds that even an exact location does not suffice as a proper Siman.

Why does Rashi explain the Gemara in this manner, and not in the more obvious way?

ANSWER: RAV BETZALEL ASHKENAZI (Shitah Mekubetzes) explains that Rashi does not accept the possibility that the second version maintains that Makom is not a Siman, because the Gemara earlier (23a) concluded in accordance with Rava that Makom *is* a Siman. Therefore, he explains that the second version is not discussing whether Makom in general is a Siman, but whether giving a specific location along the river bank is considered a Siman. (The Girsa of the Gemara of some Rishonim reads in the second version that the Gemara is explaining why the river bank is not a Siman, and not why Makom is not a Siman.)

Perhaps, according to Rashi, the original question of Rav Bivi -- whether or not Makom is a Siman -- also revolves around whether a specific location in an area where many people leave their barrels is considered a Siman. He did not question whether Makom in general is considered a Siman, because we already know that Rabah and Rava argue over that point. He was asking that perhaps even if the Makom is normally not a Siman, identifying an exact location *is* considered a Siman. On the other hand, perhaps even if Makom normally is a Siman, when the barrel is found in an area where many barrels are placed, then even an exact location will not suffice as a Siman. The Gemara tried to prove from the Beraisa that even an exact location is not a Siman, since the Beraisa teaches that if one finds barrels of wine he may keep them, which implies that even if a person gives an exact location of where the barrel was found, it is not a Siman because the barrel was found in an area where many barrels were placed. The Gemara answers that the Beraisa means only that he may keep the barrel if the original owner identifies its location by saying that it was the bank of the river, but he does not give an exact point along the river where the barrel was found.