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Bava Metzia, 25

1) FINDING FRUIT TOGETHER WITH A VESSEL

QUESTIONS: The Mishnah teaches that if a person finds Peros inside of a Kli, the owner may claim them (i.e. both the Peros and the Kli) by giving the Siman of the Kli. If a person finds piles of Peros (or coins), he must announce them, because the owner can identify them based on the number of items in the pile, or the place where they were found. The Beraisa adds that if the Peros are found in front of a Kli (and the opening of the Kli is facing away from the Peros), then the finder may keep the Peros.

(a) When one finds a pile of Peros (or coins) in Reshus ha'Rabim, why should the place or amount of items in the pile be considered a Siman? The Gemara teaches earlier (23a) that people kick objects in Reshus ha'Rabim such that they can no longer be identified by their place, and the number of items in the pile will also vary as a result of being trampled and kicked about!

(b) When one finds Peros outside of a Kli, why should he be permitted to keep them? When the Gemara earlier (21b) asked why one may keep scattered Peros according to Abaye, it answered that they are permitted only when they are found in a place of threshing (where the owners left them there with no intention of coming back to retrieve them). The Mishnah is not referring to objects that fell, but to objects that were left behind intentionally by the owner. The Peros found next to the Kli are obviously Peros that fell, and that is why the Gemara discusses whether they can be identified by the owner based on the Siman of the Kli. The fruit, then, should be prohibited because of "Yi'ush she'Lo mi'Da'as!"

ANSWERS:

(a) "Peros" here refers to fruit that becomes destroyed when trampled upon, and thus it is forbidden for people to trample them (RAMBAN, RITVA 22b). As for coins, since coins are coveted, whoever finds them first will note them and pick them up to announce the find (ibid.). Alternatively, coins do not move from one place to another by being stepped on (ROSH 2:1; the RA'AVAD has a different approach, see Chart, footnote 8).

(b) The Rishonim give two approaches to this question.

1. The RIF and the ROSH (21b; see Chart, footnote 5) maintain that, according to the Gemara's conclusion, all foodstuffs are considered important and a person who is carrying them checks constantly to make sure that they have not fallen. Thus if they fell he would notice it (and be Me'ya'esh) right away. (MA'AYAN HA'CHOCHMAH)

2. Alternatively, the Beraisa might be referring specifically to heavy fruits, the lost of which are noted immediately by one who is carrying them. The Gemara (21b) could indeed have answered that the fruits mentioned in that Mishnah are also heavy ones, and they are were not left behind on the threshing floor. However, the Gemara preferred to teach the added Chidush that fruits left behind on a threshing floor are sometimes considered Hefker. (RITVA 21b and RASHBA 21a)

25b

QUESTION: The Gemara explains that it is not permitted to take Gozalos without a Siman that were found behind a fence, even though they hop from one place to another and, therefore, it is not certain that they were placed intentionally in this place by their owner. The reason one may not take them is because of the rule that one may not take an object that *might* have been placed by the owner intentionally ("Safek Hinu'ach") in an area that is semi-protected. The Gemara continues and says that if a person does take such an object, "he does not return it" ("Lo Yachzir").

RASHI explains that he does not return it because no one can give a Siman for the object. Rashi seems to be learning that the words "Lo Yachzir" do not mean that the finder does not return the object to the place in which he found it, but rather "Lo Yachzir" means that the finder may not give the object to a person who claims that it is his, because he is not permitted to honor a claim without a Siman. Rashi later says this more clearly (on 37b, DH v'Im Natal). Rashi there concludes that the finder must hold the object until Eliyahu ha'Navi comes, or until the true owner brings witnesses who testify that he placed the object there.

According to Rashi, why is it necessary for the Gemara to teach that one should not return a lost object to a claimant who does not give a Siman? We already know from the verse, "Ad Derosh Achicha Oso" (Devarim 22:2), that the Aveidah may not be returned unless the claimant presents Simanim that it belongs to him, and according to the opinion that holds that Simanim are d'Rabanan, he must present witnesses that it belongs to him. (TOSFOS, end of DH v'Im)

ANSWERS:

(a) We find that at certain times an Aveidah *is* returned without a Siman. The Gemara (24a) teaches that an object without a Siman may be returned to a Talmid Chacham based on his Tevi'us Ayin alone, since he is known to tell the truth. Perhaps the Beraisa is teaching that even when a Talmid Chacham claims the object, it may not be returned to him based on his word alone.

However, this answer does not suffice for several reasons. First, Rashi does not mention anything about returning the object specifically to a Talmid Chacham. Second, if an object normally is returned to a Talmid Chacham without a Siman, then why indeed should it *not* be returned to a Talmid Chacham with Tevi'us Ayin when the object was "Safek Hinu'ach?"

It therefore seems that the Aveidah indeed is returned to a Talmid Chacham based on Tevi'us Ayin, because Tevi'us Ayin is the best form of Siman (see 19a, where the Gemara seems to consider it equivalent to a "Siman Muvhak" with regard to returning a Get). When Rashi writes that one should not return the Aveidah because it has no Siman, he means that *if* it is not claimed by a Talmid Chacham, then it cannot be returned. The question, then, remains: why must the Gemara teach that the Aveidah is not to be returned without a Siman?

(b) Had the Gemara not taught that the claimant must present a Siman, we might have thought that the verse which teaches that one must ask the claimant for a Siman is referring only to an object which can be identified based on Simanim. Perhaps this object, which has no Siman, could be returned based on the claimant's claim alone. The reason for this is because the Torah requires that the claimant give a Siman when retrieving a lost item in order to protect the true owner, so that no one will be able to take it by claiming to be the owner when he is not the true owner. When an object has no Siman, though, we might have thought that it is in the interest of the true owner to be able to collect it without a Siman, because at least he has a possibility of retrieving it. If it is not returned without a Siman, though, he will not even have a possibility of retrieving it. Therefore, the Gemara wants to teach that one should not return it without a Siman, since the true owner might still claim it by bringing witnesses who testify that the object belongs to him (even though such witnesses are difficult to find).

According to the opinion that Simanim are d'Rabanan, the explanation of our Gemara is more straightforward. The Gemara (27b) explains why the Rabanan were able to institute that an Aveidah may be returned merely with Simanim and without witnesses, even though the Torah requires witnesses. The reason is because the Rabanan knew that such an enactment would be in the best interest of the owner, since it is difficult to find witnesses to testify that the object belongs to him. Therefore, he prefers that the object be returned through Simanim even though it might then be returned to the wrong person. Based on the same logic one might think that the Rabanan would permit returning an Aveidah without a Siman (Safek Hinu'ach), even though it might go to the wrong person. The Gemara therefore must teach that it is not returned without a Siman, but rather it may be returned only when witnesses testify that it belongs to the claimant.