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Bava Metzia, 27

1) WHAT WE LEARN FROM "SIMLAH"

QUESTION: The Mishnah says that from the fact that the verse (Devarim 22:3) singles out a "Simlah," a cloak, as a lost item which the finder must returned to the one who lost it, we learn that just as a Simlah -- which has "Simanim" and "Tov'im" (people who claim it as theirs) -- must be returned, so, too, any object that has Simanim and Tov'im must be returned.

What does the Mishnah mean when it says that a Simlah has "Tov'im," people who claim it?

RASHI explains that it means that it is not an object whose owner is known to have despaired from ever retrieving. How do we see that a Simlah always has Tov'im? Rashi explains that a cloak is manmade, and it is not an object of Hefker. Hence, we know that it did not come from Hefker but belonged to someone.

How, though, does this logic prove that the owner was not Me'ya'esh from the cloak? Perhaps it had an owner, as Rashi explains, but then the owner was Me'ya'esh from it after he lost it! (Rishonim)

ANSWERS:

(a) Apparently, the Limud from "Simlah" according to Rashi is that since the Torah chooses an object that *cannot* come from Hefker, there must be a reason why it gives such an object as an example of an Aveidah. That reason must be that the Torah is specifically referring to a Simlah before Yi'ush, when the owner still has ownership of it. If the owner was Me'ya'esh, there is no need to return it to him merely because it belonged to him at the time that it became lost.

According to this understanding, the Mishnah is not giving a source to show that Yi'ush is considered like Hefker. Apparently, that is known from another source. The Mishnah is merely proving that if the owner was Mafkir the object or Me'ya'esh from it after losing it, there is no obligation to return it. This is consistent with Rashi's comments in Bava Kama (66a, DH Motzei), where he writes that the source for Yi'ush is from the Beraisa that discusses the case of "Shatfah Nahar" (22b). His source for this is the Yerushalmi, cited by TOSFOS (end of DH Mah).

(b) The RA'AVAD cited (by the Shitah Mekubetzes) explains that a person normally is not Me'ya'esh from a personal item like an article of clothing. Therefore, we can learn from the Simlah, a cloak, that one is obligated to return only an Aveidah for which the owner was not Me'ya'esh.

(c) TOSFOS (DH Mah) explains the Mishnah differently. Simanim and Tov'im are really a single quality of an Aveidah. The Mishnah is saying that *because* a Simlah has Simanim, *therefore* the owner will seek it out and will not be Me'ya'esh. The Mishnah is saying that if the object has no Siman, it need not be returned, because the owner was probably Me'ya'esh. Tosfos explains that this is true not only if Simanim are d'Oraisa, but even if Simanim are d'Rabanan it is the Siman that causes the owner not to be Me'ya'esh and allows him to retrieve his item with witnesses. The reason for this is because a person can search for witnesses to testify that he owned the object only if he is able to identify the object to the witnesses with its Simanim. In addition, a person can discover who found the object in order to claim it through witnesses only if he first describes it to the finder by its Simanim (since, otherwise, the finder will not show it to him).

Tosfos proves that the Simanim are what cause the person not to despair, even according to the opinion that Simanim are not d'Oraisa, since, otherwise, we should assume that the owner gives up hope even on an Aveidah *with* a Siman, if Simanim are not accepted by the Torah, since we know that no one relies on finding witnesses to prove that the Aveidah is his (because, otherwise, he would not be Me'ya'esh even when it has no Siman).

The RAMBAN adds that when an object has a Siman, it is possible for the owner to identify it through a Siman Muvhak, which is certainly d'Oraisa (for the owner can explain in great detail exactly where the Siman is and what it looks like). If it has no Siman, then it certainly does not have a Siman Muvhak.

According to Tosfos, when the Gemara (27b) asks that our Mishnah seems to be giving a source for Simanim d'Oraisa, the inference is from the fact that the Mishnah does not point out the causative quality of Simanim, saying that *because* of Simanim, the object has Tov'im. Rather, the Mishnah implies that Simanim can be used mid'Oraisa. The Gemara answers that the Mishnah uses this wording only as an "Asmachta" for the Halachah d'Rabanan of Simanim; the main point of the Torah is that because a Simlah normally has Simanim, therefore the owner is not Me'ya'esh.

(d) The RAMBAN and RITVA cite a Tosefta (2:5) which states that "Simlah" teaches that the object must be worth at least a Shaveh Perutah in order for the finder to be obligated to return it. This might be what our Mishnah means when it says that a lost object, like a Simlah, must have Tov'im.

Our Gemara cites a Beraisa, however, which learns the Halachah of Shaveh Perutah from a different source. The Tana Kama learns it from "Asher Tovad" (Devarim 22:3), and Rebbi Yehudah learns it from "u'Matzasah," which does not seem to be in agreement with the Tosefta.

The Ritva answers that our Gemara *is* in agreement with the Tosefta, and the Derashah from "Asher Tovad" (or "u'Matzasah") was made because those words refer back to "Simlah" mentioned earlier in the verse. Both Derashos are necessary. The Derashah from "Simlah" alone would not suffice because we might learn Simanim or something else from "Simlah." The Derashah of "Asher Tovad" or "u'Matzasah" alone would not suffice because those words can be understood as a Ribuy to *obligate* returning something worth less than a Shaveh Perutah, rather than as a Mi'ut to exclude such an object from the obligation. With both of the Derashos together, we learn that one is not obligated to return something worth less than a Shaveh Perutah.

Alternatively, our Mishnah might be presenting a third source for not returning less than a Shaveh Perutah, and this third source argues with the Tana Kama and Rebbi Yehudah who learn it from "Asher Tovad" and "u'Matzasah."

According to Rashi, the Tosefta may easily be reconciled with the Mishnah. "Simlah" teaches that if the owner is Mafkir the object after losing it, the finder is not required to return it. This Derashah teaches that when a person loses something worth less than a Shaveh Perutah it is not necessary to return it, since a person does not attach value to items worth less than a Shaveh Perutah (see Sanhedrin 55a), and therefore when he loses it he certainly is Mafkir it even if it has a Siman.

27b

QUESTION: The Gemara says that we do not determine the identity of a dead person based on the Simanim on his clothing, even if Simanim are d'Oraisa, because of the concern that the clothes might have been borrowed from someone else. Nevertheless, one who finds a lost donkey must return it to a claimant who gives only Simanim of the saddle that the donkey was wearing, because people never borrow donkey saddles. The Gemara then cites a Beraisa that states that when a Get is found tied to a wallet or to a signet ring, or it is found among a person's Kelim in his home, it may be returned to the owner of the item to which it is attached, because we assume that the owner of the Get is the owner of the wallet, ring, or Kelim. The Gemara asks why the Beraisa says that the Get may be returned. Why are we not concerned that perhaps the owner of the wallet lent it to someone else, who then tied a Get to it and lost it? The Gemara answers that people do not lend out their wallets and rings; they do not lend wallets because it is an omen of misfortune to lend it out, and they do not lend signet rings because the borrower might use it to forge a signature.

The Beraisa teaches that not only is a Get returned based on the Simanim of the wallet or ring to which it is tied, but a Get is also returned when it is found among one's personal Kelim in one's home, based on the fact that the Kelim belong to the owner of the house. Why are we not concerned that the person lent out a utensil to someone who put a Get in it and then returned it, and he forgot about the Get? The Gemara earlier states that a body cannot be identified based on the clothing ("Kelim") on it, because the clothing might be borrowed! (RASHI, Yevamos 120b)

ANSWERS:

(a) RASHI in Yevamos (120b) answers that when the Gemara says that we do not determine the identity of a corpse based on "Kelim," it is referring to the clothing on it. In contrast, when the Beraisa says that we *do* identify the owner of a Get based on Kelim, it is referring to personal containers of the type that a person normally does not lend to others. This is the answer that most Rishonim here give.

(b) The RASH MI'SHANTZ cited by the Shitah Mekubetzes answers that the Get that was found among Kelim was not found *in* the Kelim, nor *attached to* the Kelim, but it was merely lying next to them. Therefore, it makes no difference if the Kelim were lent to someone else, because the Get clearly was not brought back with the Kelim.

QUESTIONS: The Gemara suggests that when one finds a lost object attached to another object, he may not return the lost object to a claimant who describes the Simanim of the second object to which the first object is attached, when that second object is something that people normally lend out. We are concerned that perhaps one person lost the first object, and a second person will claim that object based on the Simanim that he can give for the second object (which is attached to the first object) which he lent to the person that lost both of them.

(a) If we are afraid that an object might have been lent out, then we should also be afraid to return any object based on Simanim that a person gives, out of concern that the person who gave the Simanim might have sold the object, and the buyer -- the new owner -- lost it. Similarly, we should be afraid that perhaps the one giving the Siman once borrowed the object, and that is how he knows about the Simanim.

(b) If, as the Gemara says, we return a donkey based on the Simanim of the saddle only because of the fact that people do not lend out donkey saddles, then how can we explain the Mishnah earlier (24b) which states that we return fruit based on the Siman that a person gives for the container in which the fruit is found? Perhaps the owner lent out his container and the *borrower* put fruit inside and then lost the container!

ANSWERS:

(a) There are two approaches in the Rishonim to these questions (see RAMBAN).

1. We are not concerned that the person giving the Simanim might have sold the object, because we assume that if the person who gave the Simanim once owned the object then he is still the owner (i.e. he has a Chazakah). (The Gemara (28a) mentions only that the person might have sold the object in a case where someone else proves with witnesses that the object fell from him after the first person gave Simanim.)

We are not concerned that the person giving the Simanim is not the true owner but knows the Simanim because he borrowed the object once, because a borrower normally does not hold on to an object long enough to memorize its Simanim (see Chagigah 22b).

2. The RAMBAN and many Rishonim suggest a second answer. If a person sold an object and the buyer lost it, there is no reason for the seller to suspect that the object was lost and to attempt to reclaim the object from the finder of the object by offering Simanim. Similarly, if a person once borrowed an object, he will not be aware that the object was lost by the owner after he returned it. Therefore, there is no reason to suspect that either of these people will falsely claim the object based on the Simanim. In contrast, when a person lends his donkey saddle to someone else who then loses the donkey along with the saddle, the borrower must explain to the lender why he is not returning the saddle. Consequently, the lender will be aware that his saddle *and* the borrower's donkey were lost together, and when he hears someone announcing that a donkey was found, he will attempt to claim it by giving the Simanim of his saddle.

(b) All of the Rishonim answer that the fruit, the Peros, are returned based on the Siman of the Kli, because even though mid'Oraisa we must be concerned that containers are lent out, the Rabanan made an enactment that we are not concerned that containers are lent out in order to allow a person to return a lost object based on the Siman of another abject to which it is attached. This was enacted for the benefit of the owners, and it is similar to the general enactment to return a lost object based on Simanim, according to the opinion that says that Simanim are d'Rabanan. The Gemara applies the concern that an object might have been borrowed only with regard to returning a Get, or with regard to returning a donkey based on the Siman of the saddle, which is mid'Oraisa according to the Beraisa (27a). (See TOSFOS 20b, DH Matza, and Rishonim here.)

The Acharonim question this approach. The ONEG YOM TOV (Even ha'Ezer 135) asks that we return an Aveidah based on Simanim only because it is to the benefit of the owner. The owner says that "even if someone else falsely identifies the object with average Simanim, I will be able to give a better Siman and retrieve it" (see TOSFOS DH v'Ana). With regard to returning an object based on the Siman of the object to which it is attached, this logic does not apply; the one who did *not* lose the fruit that is inside the container (i.e. the owner of the container) knows the Simanim of the container even better than the one who lost the fruit together with the container!

The TUMIM (Choshen Mishpat 65:12) and CHASAM SOFER (Even ha'Ezer 1:95) ask that the Mishnah earlier (20a) teaches that when one finds a Shtar inside of a basket, he may return the Shtar to the owner of the basket based on the Simanim of the basket. With regard to a number of Shtaros wrapped together, and with regard to three Shtaros with the same borrower (or with the same lender), the Gemara teaches that when it comes to returning a Shtar, the Rabanan would not make a Takanah to return it based on Simanim, since it is not beneficial for the borrower to have the Shtar returned to the lender. Based on the same logic, we should not have a Takanah d'Rabanan to return Shtaros based on the Siman of the Kli in which the Shtar was found! It will not be beneficial to the borrower to have it returned, and therefore the Rabanan should not make a Takanah!

The answer to these questions might be that it is more damaging to the person who truly lost the object if we return his Aveidah based on Simanim, than if we return an object based on the Simanim of the object to which it is attached. The reason for this is that with regard to Simanim (if Simanim are not mid'Oraisa), any person in the world can approach the finder and describe to him certain standard Simanim that are common to most objects of that type. In contrast, when we return an object based on the Simanim of the object to which it is attached, there is only one person who can falsely claim the object (the one who might have lent that item to the one who lost it), and therefore the real owner has much less to worry about.

The second reason is that when an object has a Siman, if we do not return it based on Simanim, then the owner will still be able to claim the object based on witnesses (if he can find witnesses). With regard to returning an object based on the Simanim of the object to which it is attached, we are discussing an object that has no Simanim of its own. Even if mid'Oraisa a person can claim an object only with witnesses, if the object has no Siman he will be Me'ya'esh and he will not be able to claim it (as we explained earlier, in Insights to 27a). Therefore the owner stands only to gain by having the object returned with Simanim of the object to which it is attached.

This answers the question of the Oneg Yom Tov. When it comes to returning an object based on Simanim of the object to which it is attached, it is not necessary for the Rabanan to find a way for the true owner to present a better claim than the false claimant, since the true owner stands to gain even if he cannot present a better claim.

With regard to the question of the Tumim (from a Shtar that was found inside of a utensil), it is beneficial -- even to the borrower -- to return a Shtar in such a manner, because if the borrower later lends money (and thus becomes a lender himself) and loses that Shtar, he will have a way to reclaim the Shtar; if we do not return a Shtar (which has no Siman) based on the Siman of the container, he will have no way to reclaim it. With regard to Simanim, even if we do not return a Shtar based on Simanim, the borrower *will* have a chance to retrieve the Shtar, since he can find witnesses to testify that he dropped it by describing the Shtar based on its Siman.

Alternatively, although the Gemara originally suggests that there is no way to reconcile the Mishnah which discusses returning a Shtar based on a Siman with the opinion that says that Simanim are d'Rabanan, the Gemara later allows for the possibility that Simanim are indeed d'Rabanan. The Rishonim explain how to reconcile the Mishnah according to that opinion. Their answers can be applied to the question from a Shtar found inside of a container as well. (M. Kornfeld)

The SHACH (CM 65:26) argues with all of the Rishonim. He suggests another way to explain the Mishnah which permits returning a Shtar based on the Siman of the container. He explains that in the case of a lost donkey that was found with a saddle, the reason we are concerned that the saddle was lent out is because the finder announces that he found a saddle and a donkey, and after someone claims the saddle with Simanim, he also gets the donkey. When the Mishnah says that we return a Shtar based on the Simanim of the container it is in, it is referring to a case where the finder announces only that he found a Shtar. The owner is the one who volunteers the information that the Shtar was found inside of a container, and he gives the Simanim of the container. Perhaps in such a case there is no concern that the container was borrowed.

The Shach further suggests that the container might be a type of container that is normally not lent out to others.