Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 28a

But what of that which we learnt: If one finds a roll of notes or a bundle of notes he must surrender [them]:¹  here too, [is then the reason] because the debtor is pleased that they should be returned to the creditor! — But, said Raba, identification marks are Biblically valid, because it is written, And it shall be with thee until thy brother seek after it. Now, would it then have occurred to you that he should return it to him before he sought it! But [it means this:] examine him [the claimant], whether he be a fraud or not.²  Surely that is by means of identification marks! That proves it.

Raba said: Should you resolve that identification marks are Biblically valid … ('Should you resolve!' — but he has proved that they are Biblically valid! — That is because it can be explained as was answered [above].)³  If two sets of identification marks [are offered by two conflicting claimants], it [the lost article] must be left [in custody].⁴  [If one states] identification marks and [another produces] witnesses, it [the lost article] must be surrendered to him who has witnesses.⁵  [If one states] identification marks, and [another also states] identification marks and [produces] one witness — one witness is as non-existent, and so it must be left. [If one produces] witnesses of weaving,⁶  and [another] witnesses of dropping,⁷  it must be given to the latter, because we argue, He [the first] may have sold, and another lost it. [If one states] its length, and [another] its breadth,⁸  it must be given to [him who states its] length; because it is possible to conjecture the breadth when its owner is standing and wearing it, whereas the length cannot be [well] conjectured.⁹  [If one states] its length and breadth, and another its gums,¹⁰  it must be surrendered to the former. If the length, breadth, and weight [are stated by different claimants], it must be given to [him who states] its weight.

If he [the husband] states the identification marks of a bill of divorce, and she does likewise,¹¹  it must be given to her.¹²  Wherewith [is it identified]? Shall we say, by its length and breadth? perhaps she saw it whilst he was holding it!¹³  — But it had a perforation at the side of a certain letter. If he identifies the ribbon [with which the divorce was tied], and she does likewise, it must be given to her. Wherewith [is it identified]? Shall we say, by [its colour], white or red? perhaps she saw it whilst he was holding it! — Hence, by its length. If he states, [it was found] in a valise, and she states likewise, it must be surrendered to him. Why? She knows full well that he places whatever he has [of his documents] in a valise.¹⁴ 

MISHNAH. NOW, UNTIL WHEN IS HE [THE FINDER] OBLIGED TO PROCLAIM IT? UNTIL HIS NEIGHBOURS MAY KNOW THEREOF: THIS IS R. MEIR'S VIEW. R. JUDAH MAINTAINED: [UNTIL] THREE FESTIVALS [HAVE PASSED], AND AN ADDITIONAL SEVEN DAYS AFTER THE LAST FESTIVAL, GIVING THREE DAYS FOR GOING HOME, THREE DAYS FOR RETURNING, AND ONE DAY FOR ANNOUNCING.¹⁵

GEMARA. A Tanna taught: The neighbours of the loss [are referred to in the Mishnah]. What is the meaning of 'the neighbours of the loss?' Shall we say, the neighbours of the loser? But if they know him [who lost it], let them go and return it to him! — But [it means] the neighbours of the vicinity wherein the lost article was found.¹⁶

R. JUDAH MAINTAINED etc. But the following contradicts this: On the third day of Marcheshvan¹⁷  we [commence to] pray for rain.¹⁸  R. Gamaliel said: On the seventh, which is fifteen days after the Festival,¹⁹  so that the last [of the pilgrims] in Eretz Yisrael²⁰  can reach the river Euphrates!²¹  — Said R. Joseph: There is no difficulty. The latter refers to the days of the First Temple, the former [sc. our Mishnah] to the Second. During the First Temple, when the Israelites were extremely numerous, as it is written of them, Judah and Israel were many, as the sand which is by the sea in multitude,²²  such a long period was required.²³  But during the Second Temple, when the Israelites were not very numerous, as it is written of them, The whole congregation together was forty and two thousand three hundred and threescore,²⁴  such a long time was unnecessary. Thereupon Abaye protested to him: But is it not written, So the priests and the Levites, and the porters, and the singers, and some of the people and the Nethinims, and all Israel, dwelt in their cities?²⁵  and that being so, the logic is the reverse. During the first Temple, when the Israelites were very numerous, the people united [for travelling purposes], and caravan companies were to be found travelling day and night, so long a period was unnecessary, and three days were sufficient. But during the second Temple, when the Israelites were not very numerous, the people did not join together [for travelling], and caravan companies were not available for proceeding day and night, this long period was necessary! — Raba said: There is no difference between the first Temple and the Second: the Rabbis did not put one to unreasonable trouble in respect of a lost article.

Rabina said: This [sc. our Mishnah] proves that when the proclamation was made, [the loss of] a garment was announced.²⁶  For should you think, a lost article was proclaimed [unspecified], another day should have been added to enable one to examine his belongings! Hence it follows that [the loss of] a garment was proclaimed. This proves it. Raba said: You may even say that a mere loss was proclaimed: the Rabbis did not put one to unreasonable trouble in respect of a lost article.

Our Rabbis taught: At the first Festival [of proclamation] it was announced: 'This is the first Festival;' at the second Festival it was announced: 'This is the second Festival;' but at the third a simple announcement was made.²⁷  Why so; let him announce: 'It is the third Festival'? — So that it should not be mistaken for the second.²⁸  But the second, too,

1. To the creditor, if he states identification marks; v. supra 20a.
2. V. supra p. 169 for notes.
3. Supra p. 169.
4. It cannot be returned to either. Cf. supra 20a: 'It must lie until Elijah comes.'
5. Even if identification marks are Biblically valid, yet witnesses stand higher.
6. That he wove it.
7. That he dropped it.
8. This refers to a garment, these measurements being offered as marks of identification.
9. [The breadth of the cloth out of which a toga was made was worn lengthwise, and the length breadthwise.]
10. [ [H] the sum total of its length and breadth. The term Gam has been identified with the Greek Gnomon, the carpenter's square, and is derived from the Hebrew gimel, which has the shape of an axe, or carpenter's square. V. B.B. (Sonc. ed.) p. 251, n. 4.]
11. Each claims ownership, the husband maintaining that he lost it before delivering it to his wife, so that she is still married to him, and now he has changed his mind and no longer wishes to divorce her, whilst the wife insists that she lost it after receiving it, so that she is divorced.
12. Because the husband's knowledge is no proof of ownership, since he certainly saw it before delivering it to her; but if she had not received it, she would not know its identification marks.
13. And before delivering it he changed his mind.
14. Though this does not prove his ownership either, it must nevertheless be surrendered to him, since she cannot be declared free after a valid doubt has arisen.
15. The three Festivals referred to are Passover, Weeks, and Tabernacles, when Jerusalem was visited by all Israel. This was the practice whilst the Temple stood and some time after; but v. Gemara on this.
16. And R. Meir's reason is that it is probably theirs.
17. The eighth month of the year, generally corresponding to mid-October-mid-November.
18. V. P.B. p. 47.
19. 'The Festival' without any further designation, always means Tabernacles, which lasted from the 15th to the 22nd of Tishri inclusive, Tishri being the seventh month of the year.
20. [MS.M.: 'The last of the Israelites (who had come from Babylon)].
21. Before the rains commence, This shews that a far longer period than three days is necessary to enable every Jew to reach his house.
22. I Kings IV, 20.
23. [Owing to the communities being widely scattered.]
24. Ezra II, 64.
25. Neh. VII. 73. [So that they thus lived scattered 'in their (former) cities' despite their paucity in numbers.]
26. I.e., the actual article lost, the claimant having to submit identification marks.
27. Without stating that it was the third time of proclamation. But the first and second had to be specified, so that the loser should know that he still had a third, and not be compelled to hurry back home.
28. Through faulty hearing.

one might mistake for the first! — In any case, the third is still to come.¹

Our Rabbis taught: In former times, whoever found a lost article used to proclaim it during the three Festivals and an additional seven days after the last Festival, three days for going home, another three for returning, and one for announcing.²  After the destruction of the Temple — may it be speedily rebuilt in our own days!³  — it was enacted that the proclamation should be made in the synagogues and schoolhouses. But when the oppressors increased, it was enacted that one's neighbours and acquaintances should be informed, and that sufficed. What is meant by 'when the oppressors increased'? — They insisted that lost property belonged to the king.⁴

R. Ammi found a purse of denarii. Now, a certain man saw him displaying fear, whereupon he reassured him, 'Go, take it for thyself: we are not persians who rule that lost property belongs to the king.'

Our Rabbis taught: There was a Stone of Claims⁵  in Jerusalem: whoever lost an article repaired thither, and whoever found an article did likewise. The latter stood and proclaimed, and the former submitted his identification marks and received it back. And in reference to this we learnt: Go forth and see whether the Stone of Claims is covered.⁶

MISHNAH. IF HE [THE CLAIMANT] STATES THE ARTICLE LOST, BUT NOT ITS IDENTIFICATION MARKS, IT MUST NOT BE SURRENDERED TO HIM. BUT IF HE IS A CHEAT,⁷  EVEN IF HE STATES ITS MARKS OF IDENTIFICATION, IT MUST NOT BE GIVEN UP TO HIM, BECAUSE IT IS WRITTEN [AND IT SHALL BE WITH THEE] UNTIL THE SEEKING OF THY BROTHER AFTER IT,⁸  MEANING, UNTIL THOU HAST EXAMINED THY BROTHER WHETHER HE BE A CHEAT OR NOT.⁹

GEMARA. It has been stated: Rab Judah said: He proclaims. '[I have found] a lost article.' R. Nahman said: He proclaims, '[I have found] a garment'. 'Rab Judah said: He proclaims a lost article,' for should you say that he proclaims a garment, we are afraid of cheats. 'R. Nahman said: He proclaims. a garment'; for 'we do not fear cheats, as otherwise the matter is endless'.¹⁰

We learnt: IF HE STATES THE ARTICLE LOST, BUT NOT ITS IDENTIFICATION MARKS, IT MUST NOT BE SURRENDERED TO HIM. Now, if you say that he proclaims a loss, it is well; we are thus informed that though he states that it was a garment, yet since he does not submit its identification marks, it is not returned to him. But if you say that he proclaims a garment, then if one [the finder] states that it was a garment, and the other [the claimant] states likewise, a garment, is it necessary to teach that it is not returned to him unless he declares its marks of identification? — Said R. Safra: After all, he proclaims a garment. [The Mishnah means that] he [the finder] stated [that he had found] a garment, whilst the other [the claimant] submitted identification marks. What then is meant by 'HE DID NOT STATE ITS IDENTIFICATION MARKS'? — He did not state its perfect identification marks.¹¹

BUT IF HE IS A CHEAT, IF HE STATES ITS IDENTIFICATION MARKS, IT MUST NOT BE GIVEN UP TO HIM. Our Rabbis taught: At first, whoever lost an article used to state its marks of identification and take it. When deceivers increased in number, it was enacted that he should be told, 'Go forth and bring witnesses that thou art not a deceiver; then take it'. Even as it once happened that R. papa's father lost an ass, which others found. When he came before Rabbah son of R. Huna, he directed him, 'Go and bring witnesses that you are not a fraud, and take it.' So he went and brought witnesses. Said he to them, 'Do you know him to be a deceiver?' — 'Yes', they replied. 'I, a deceiver!' he exclaimed to them. 'We meant that you are not a fraud,' they answered him. 'It stands to reason that one does not bring [witnesses] to his disadvantage.' said Rabbah son of R. Huna.¹²

MISHNAH. EVERYTHING [SC. AN ANIMAL] WHICH WORKS FOR ITS KEEP¹³  MUST [BE KEPT BY THE FINDER AND] EARN ITS KEEP. BUT AN ANIMAL WHICH DOES NOT WORK FOR ITS KEEP MUST BE SOLD, FOR IT IS SAID, AND THOU SHALT RETURN IT UNTO HIM,¹⁴  [WHICH MEANS], CONSIDER HOW TO RETURN IT UNTO HIM.¹⁵  WHAT HAPPENS WITH THE MONEY? R. TARFON SAID: HE MAY USE IT; THEREFORE IF IT IS LOST, HE BEARS RESPONSIBILITY FOR IT.¹⁶  R. AKIBA MAINTAINED: HE MUST NOT USE IT; THEREFORE IF IT IS LOST, HE BEARS NO RESPONSIBILITY.

GEMARA. For ever!¹⁷  — Said R. Nahman in Samuel's name: Until twelve months [have elapsed]. It has been taught likewise: As for all animals which earn their keep. e.g., a cow or an ass, he [the finder] must take care of them for twelve months; after that he turns them into money, which he lays by. He must take care of calves and foals three months, sell them and lay the money by. He must look after geese and cocks for thirty days, sell them and put the money by. R. Nahman b. Isaac observed: A fowl ranks as large cattle.¹⁸  It has been taught likewise: As for a fowl and large cattle.¹⁹  he must take care of them twelve months, then sell them and put the money by. For calves and foals the period is²⁰  thirty days, after which he sells them and lays the money by. Geese and cocks, and all which demand more attention than their profit is worth, he must take care of for three days, after which he sells them and lays the money by. Now this ruling on calves and foals contradicts the former one, and likewise the rulings on geese and cocks are contradictory? — The rulings on calves and foals are not contradictory: the former refers to grazing animals; the latter to those that require feeding stuffs.²¹  The rulings on geese and cocks are likewise not contradictory: the former refers to large ones, the latter to small.²²

BUT AN ANIMAL WHICH DOES NOT WORK FOR ITS KEEP. Our Rabbis taught: And thou shalt return it unto him: deliberate how to return it unto him, so that a calf may not be given as food to other calves, a foal to other foals, a goose to other geese, or a cock to other cocks.²³

WHAT HAPPENS WITH THE MONEY? R. TARFON SAID: HE MAY USE IT etc. Now. this dispute is

1. Even if a mistake is made, no harm is done.
2. V. Mishnah.
3. This phrase has become liturgical.
4. That was Persian law, which the Jews felt justified in secretly resisting.
5. [Var. lec., 'Stone of the erring (losses).' On the attempt to localize the stone, v. J. N. Sepp. ZDPV, II, 49.]
6. So Rashi. Lit., 'is dissolving.' The story is related in Ta'an. 19a of a certain Honi who prayed for rain so successfully that he was asked to reverse his prayer, more than enough having fallen. To which he answered, 'Go forth and see whether the Claimants' Stone is already covered with water, in which case I will pray for the rain to cease.'
7. I.e., where the claimant is known to be one in general, but v. Gemara on this.
8. Deut. XXII, 2.
9. V. p. 169, n. 6.
10. Even if no particular article is announced, a fraud may claim a certain article at a venture.
11. I.e., he gave general marks which would cover many garments. [The term 'perfect' is used by R. Safra in a loose sense, cf. supra p. 171. n. 9.]
12. Therefore the witnesses can withdraw their testimony, though normally this is forbidden. But in this case it is evident that they thought that he had asked, 'Do ye know that he is not a deceiver?' which was the usual form of the question.
13. Lit., 'does and eats.'
14. Ibid.
15. But if the finder keeps it and then charges the loser with its keep, it may exceed its actual worth, and so the return will be a loss.
16. The advantage that he enjoys in that he may use it makes him a paid bailee.
17. Surely the finder need not keep the animal indefinitely, even if it does earn its keep!
18. And must be kept a twelvemonth.
19. I.e., cows and oxen.
20. Lit., 'he must take care of them.'
21. In spring and summer, when the animals graze on natural pasture, they are to be kept three months; but in winter, when feeding stuffs must be bought for them, thirty days are sufficient.
22. Small ones need more attention, and therefore they are kept only three days. — The translation follows Maim. and R. Han., and is also adopted by the Codes; v. H.M. 267, 24. Rashi reverses it.
23. I.e., if a number of these is found, it should not be necessary to sell one to provide food for the others, but as soon as they cease to earn their keep they must all be sold.