The Mishna rules that if one finds money among fruits that one has purchased, one can keep the money. Rabbi Yannai limits this to what circumstances? A braita is brought which also corresponds to Rabbi Yannai’s limitation. The verses in the Torah relating to lost items list several items that are lost that should be returned. What is derived from each of these terms? Rabbi Yehuda and Tana Kamma disagree about whether to derive the halakha that one does not need to return an item that is less than the value of a pruta from the words “that get lost” or from the word “and it was found.” Is there a practical ramification between the two opinions or is it just a matter of which words to derive it from? What does each derive from the other word? Is the ability to retrieve a lost item by providing simanim a Torah law or rabbinic? The ramifications for this question: would a lost get be able to be returned to the woman if she brought simanim? Four sources are brought in an attempt to prove that lost items can be retrieved by simanim by Torah law or rabbinic law, but all are rejected. Is this issue a tannaitic debate, as can be found in a debate regarding the identification of a dead man based on a mole, to permit his wife to remarry? However, the Gemara suggests three other possibilities for the reasoning for the debate that are not based on whether or not simanim are a Torah law. Rava explains that if simanim are not a Torah law, on what basis can the rabbis institute that items can be returned by simanim if perhaps it may allow for the “wrong person” to collect a lost item if he/she happens to be able to provide simanim? After Rav Safra raises a difficulty with Rava’s reasoning, Rava offers an alternative explanation. The Gemara raises a difficulty with that as well but then resolves the difficulty.
Bava Metzia 27
Share this shiur:
Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
Want to dedicate learning? Get started here:
Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
Bava Metzia 27
בְּלוֹקֵחַ מִן הַתַּגָּר, אֲבָל בְּלוֹקֵחַ מִבַּעַל הַבַּיִת – חַיָּיב לְהַחְזִיר. וְכֵן תָּנֵי תַּנָּא קַמֵּיהּ דְּרַב נַחְמָן: לֹא שָׁנוּ אֶלָּא בְּלוֹקֵחַ מִן הַתַּגָּר, אֲבָל בְּלוֹקֵחַ מִבַּעַל הַבַּיִת – חַיָּיב לְהַחְזִיר.
in the case of one who purchases produce from a merchant, who acquired the produce from several suppliers and is unable to determine the source of the coins. But in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller. And likewise, the tanna who recited mishnayot and baraitot in the study hall of Rav Naḥman taught a baraita before Rav Naḥman: The Sages taught that the coins belong to the buyer only in the case of one who purchases produce from a merchant, but in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller.
אֲמַר לֵיהּ רַב נַחְמָן: וְכִי בַּעַל הַבַּיִת בְּעַצְמוֹ דָּשָׁן? אֲמַר לֵיהּ: אֶיסְמְיַהּ? אֲמַר לֵיהּ: לָא, תִּתַּרְגַּם מַתְנִיתִין כְּגוֹן שֶׁדָּשָׁן עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַכְּנַעֲנִים.
Rav Naḥman said to the tanna: But does the owner thresh the grain himself? His workers thresh the grain, and the coins could belong to one of them. The tanna said to Rav Naḥman: Based on the difficulty you raise, should I delete it from the collection of authoritative baraitot? Rav Naḥman said to the tanna: No. Interpret the baraita as referring to a case where the grain was threshed by his Canaanite slave or maidservant, and therefore any coins found intermingled with the produce belong to the owner.
מַתְנִי׳ אַף הַשִּׂמְלָה הָיְתָה בִּכְלַל כׇּל אֵלּוּ, וְלָמָּה יָצָאת? לְהַקִּישׁ אֵלֶיהָ, לוֹמַר לְךָ: מָה שִׂמְלָה מְיוּחֶדֶת, שֶׁיֵּשׁ בָּהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין, אַף כׇּל דָּבָר שֶׁיֵּשׁ בּוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִים חַיָּיב לְהַכְרִיז.
MISHNA: This mishna is an excerpt from a halakhic midrash concerning lost items, based on the verse: “You shall not see your brother’s ox or his sheep wandering, and disregard them; you shall return them to your brother…And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:1, 3). The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that it should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find.
גְּמָ׳ מַאי ״בִּכְלַל כׇּל אֵלּוּ״? אָמַר רָבָא: בִּכְלַל ״כׇּל אֲבֵדַת אָחִיךָ״.
GEMARA: When the mishna says that the garment was included in the generalization that one must return all of these items, in what generalization is it included? Rava said: It is included in the generalization: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:3).
אָמַר רָבָא: לְמָה לִי דִּכְתַב רַחֲמָנָא ״שׁוֹר״, ״חֲמוֹר״, ״שֶׂה״ וְ״שִׂמְלָה״?
Rava says: Why do I need all the specific items that the Merciful One writes that one must return: An ox, a donkey, a sheep, and a garment? One of them would seem to suffice.
צְרִיכִי, דְּאִי כְּתַב רַחֲמָנָא שִׂמְלָה, הֲוָה אָמֵינָא: הָנֵי מִילֵּי בְּעֵדִים דְּגוּפַהּ וְסִימָנִין דְּגוּפַהּ. אֲבָל חֲמוֹר בְּעֵדִים דְּאוּכָּף וְסִימָנִין דְּאוּכָּף, אֵימָא לָא מַהְדְּרִינַן לֵיהּ, כְּתַב רַחֲמָנָא ״חֲמוֹר״ דַּאֲפִילּוּ חֲמוֹר בְּסִימָנֵי הָאוּכָּף.
Rava answers: They are all necessary, as a unique halakha is derived from each example. As, if the Merciful One had written only “garment,” I would say: This matter, i.e., the mitzva to return a lost item, applies only in a case where the owner brings witnesses capable of testifying about the item itself or he describes distinguishing marks concerning the item itself; but with regard to returning a donkey to its owner in a case where he brings witnesses with regard to the saddle or describes distinguishing marks concerning the saddle and not on the donkey, say that we do not return the donkey to the owner. To counter this, the Merciful One writes: “Donkey,” from which it is derived that a donkey is returned to its owner even in a case where he describes distinguishing marks on the saddle.
״שׁוֹר״ וָ״שֶׂה״, דִּכְתַב רַחֲמָנָא לְמָה לִי? ״שׁוֹר״ – דַּאֲפִילּוּ לְגִיזַּת זְנָבוֹ, וְ״שֶׂה״ – לְגִיזּוֹתָיו. וְלִכְתּוֹב רַחֲמָנָא ״שׁוֹר״, דַּאֲפִילּוּ לְגִיזַּת זְנָבוֹ, וְכׇל שֶׁכֵּן ״שֶׂה״ לְגִיזּוֹתָיו!
Rava continues: With regard to the specific mentions of “ox” and “sheep” that the Merciful One writes, why do I need them? Rava answers: From “ox” it is derived that one must return even the sheared wool of its tail; and from “sheep” it is derived that one must return even its sheared wool. The Gemara challenges: And let the Merciful One write only “ox,” from which it is derived that one must return even the sheared wool of its tail, and derive all the more so that one must return the more substantial sheared wool of a sheep.
אֶלָּא אָמַר רָבָא: ״חֲמוֹר״ דְּבוֹר לְרַבִּי יְהוּדָה, וְ״שֶׂה״ דַאֲבֵידָה – לְדִבְרֵי הַכֹּל קַשְׁיָא.
Rather, Rava said: The term “donkey” stated with regard to damage in the category of Pit, according to the opinion of Rabbi Yehuda (see Exodus 21:33 and Bava Kamma 54a), and the term “sheep” stated with regard to a lost item, according to the opinion of everyone, are difficult. There is no explanation for why they are stated.
וְאֵימָא לִגְלָלִים הוּא דַּאֲתָא? גְּלָלִים – אַפְקוֹרֵי מַפְקַר לְהוּ. וְדִילְמָא לְסִימָנִין הוּא דַּאֲתָא, דְּאִיבַּעְיָא לַן: סִימָנִין דְּאוֹרָיְיתָא אוֹ דְרַבָּנַן. כְּתַב רַחֲמָנָא ״שֶׂה״, דַּאֲפִילּוּ בְּסִימָנִין מַהְדְּרִינַן, וְסִימָנִין דְּאוֹרָיְיתָא.
The Gemara suggests: And say that the term “sheep” comes to teach the obligation to return the animal’s dung? The Gemara answers: One need not return dung, because the owner has renounced its ownership. The Gemara suggests: And perhaps the term “sheep” comes to teach the obligation to return an item based on its owner providing distinguishing marks, as we raised a dilemma: Is the halakha that an item can be identified using distinguishing marks by Torah law or is it by rabbinic law? Therefore, the Merciful One writes: “Sheep” in order to teach that it is not only through the testimony of witnesses, but even based on distinguishing marks that we return lost items to their owner. Resolve the dilemma and conclude that the halakha that an item can be identified using distinguishing marks is by Torah law.
אָמְרִי: מִדְּקָתָנֵי לְהוּ תַּנָּא, לְסִימָנִין גַּבֵּי שִׂמְלָה, דְּקָתָנֵי: מָה שִׂמְלָה מְיוּחֶדֶת שֶׁיֵּשׁ בָּהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין – חַיָּיב לְהַכְרִיז, אַף כׇּל דָּבָר שֶׁיֵּשׁ בּוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִין – חַיָּיב לְהַכְרִיז. שְׁמַע מִינַּהּ דְּ״שֶׂה״ לָאו לְסִימָנִין הוּא דַּאֲתָא.
The Gemara rejects this proof. The Sages say: One can understand the matter from the fact that the tanna teaches the concept of distinguishing marks together with the term garment. As it is taught in the mishna: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Conclude from it that the term “sheep” does not come to teach the obligation to return an item based on its owner providing distinguishing marks.
תָּנוּ רַבָּנַן: ״אֲשֶׁר תֹּאבַד״ – פְּרָט לַאֲבֵידָה שֶׁאֵין בָּהּ שָׁוֶה פְּרוּטָה. רַבִּי יְהוּדָה אוֹמֵר: ״וּמְצָאתָהּ״ – פְּרָט לַאֲבֵידָה שֶׁאֵין בָּהּ שָׁוֶה פְּרוּטָה.
The Sages taught in a baraita: The verse states: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The Rabbis derive that this phrase serves to exclude a lost item in which there is not the value of one peruta, which due to its negligible value is not considered lost. Rabbi Yehuda says that this halakha is derived from the conclusion of that verse: “Which shall be lost from him, and you have found it.” The term “and you have found it” serves to exclude a lost item in which there is not the value of one peruta.
מַאי בֵּינַיְיהוּ? אָמַר אַבָּיֵי: מַשְׁמָעוּת דּוֹרְשִׁין אִיכָּא בֵּינַיְיהוּ. מָר נָפְקָא לֵיהּ מֵ״אֲשֶׁר תֹּאבַד״ וּמָר נָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״.
The Gemara asks: What is the practical difference between the two opinions? Ostensibly, the Rabbis and Rabbi Yehuda both state the same halakha. Abaye said: There is no practical difference. Rather, the interpretation of the meaning of the verse is the difference between them. One Sage, the Rabbis, derives it from the phrase: “Which shall be lost from him”; and one Sage, Rabbi Yehuda, derives it from the term: “And you have found it.”
וּלְמַאן דְּנָפְקָא לֵיהּ מֵ״אֲשֶׁר תֹּאבַד״ הַאי ״וּמְצָאתָהּ״ מַאי עָבֵיד לֵיהּ?
The Gemara asks: And according to the first Sage, the Rabbis, who derives the halakha that one need not return a lost item worth less than one peruta from the phrase “which shall be lost from him,” what does he do with the term: “And you have found it”?
הַהוּא מִיבְּעֵי לֵיהּ לְכִדְרַבְנַאי, דְּאָמַר רַבְנַאי: ״וּמְצָאתָהּ״ – דַּאֲתַאי לִידֵיהּ מַשְׁמַע.
The Gemara answers: According to the Rabbis, that term is necessary for the derivation of the halakha in accordance with the opinion of Rabbenai. As Rabbenai says in interpreting the verse: “And so shall you do with every lost item of your brother’s, which he has lost, and you have found it” (Deuteronomy 22:3), that the term “and you have found it” means that it assumes the status of a found item only when it actually enters his possession.
וּלְמַאן דְּנָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״, הַאי ״אֲשֶׁר תֹּאבַד״ מַאי עָבֵיד לֵיהּ?
The Gemara asks: And according to Rabbi Yehuda, who derives the halakha that one need not return a lost item worth less than one peruta from the term: “And you have found it,” what does he do with the phrase: “Which has been lost from him”?
מִבְּעֵי לֵיהּ לְכִדְרַבִּי יוֹחָנָן. דְּאָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי שִׁמְעוֹן בֶּן יוֹחַאי: מִנַּיִין לַאֲבֵידָה שֶׁשְּׁטָפָהּ נָהָר שֶׁהִיא מוּתֶּרֶת? שֶׁנֶּאֱמַר: ״כֵּן תַּעֲשֶׂה לְכׇל אֲבֵדַת אָחִיךָ אֲשֶׁר תֹּאבַד מִמֶּנּוּ וּמְצָאתָהּ״ – מִי שֶׁאֲבוּדָה הֵימֶנּוּ וּמְצוּיָה אֵצֶל כׇּל אָדָם, יָצְתָה זוֹ שֶׁאֲבוּדָה הֵימֶנּוּ וְאֵינָהּ מְצוּיָה אֵצֶל כׇּל אָדָם.
The Gemara answers: According to Rabbi Yehuda, that phrase is necessary for the derivation of the halakha in accordance with the opinion of Rabbi Yoḥanan. As Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yoḥai: From where is it derived with regard to a lost item that the river swept away that it is permitted for its finder to keep it? It is derived from this verse, as it is written: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The verse states that one must return that which is lost from him, the owner, but is available to be found by any person. Excluded from that obligation is that which is lost from him and is not available to be found by any person; it is ownerless property and anyone who finds it may keep it.
וְאִידַּךְ, הָא דְּרַבְנַאי מְנָא לֵיהּ? נָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״.
The Gemara asks: And the other tanna, Rabbi Yehuda, who derived from the term: “And you have found it,” that one need not return a lost item worth less than one peruta, from where does he derive the halakha of Rabbenai that the item assumes the status of a found item only when it actually comes into his possession? The Gemara answers: Rabbi Yehuda derives it from the superfluous conjunction “and” in the term “and you have found it.”
וְאִידַּךְ, הָא דְּרַבִּי יוֹחָנָן מְנָא לֵיהּ? נָפְקָא לֵיהּ ״מִמֶּנּוּ״. וְאִידָּךְ? ״מִמֶּנּוּ״ לָא מַשְׁמַע לֵיהּ.
The Gemara asks further: And the other tanna, the first tanna, who derives from the phrase “which shall be lost from him” that one need not return a lost item worth less than one peruta, from where do they derive the halakha of Rabbi Yoḥanan that one need not return an item that is lost from him and is not available to be found by every person? The Gemara answers: He derives it from the superfluous term “from him,” in the phrase “which shall be lost from him.” And as for the other tanna, Rabbi Yehuda, he does not learn anything from the term “from him.”
רָבָא אָמַר: פְּרוּטָה שֶׁהוּזְלָה אִיכָּא בֵּינַיְיהוּ, מַאן דְּאָמַר מֵ״אֲשֶׁר תֹּאבַד״ – אִיכָּא, וּמַאן דְּאָמַר מִ״וּמְצָאתָהּ״ – לֵיכָּא.
Abaye explained that there is no practical difference between the opinion of the first tanna and Rabbi Yehuda. By contrast, Rava said: The practical difference between them is with regard to an item that was worth one peruta when it was lost but that was then devalued and was worth less than one peruta when it was found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase “which shall be lost from him,” there is an obligation to return the item, as that verse is referring to the value of the item when it was lost. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “And you have found it,” there is no obligation to return the item, as that verse is referring to the value of the item when it is found.
וּלְמַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – הָא בָּעֵינַן ״וּמְצָאתָהּ״, וְלֵיכָּא!
The Gemara asks: But even according to the one who says that the halakha is derived from the phrase “which shall be lost from him,” do we not require the item to be worth one peruta when it is found, based on the term “and you have found it”? And in this case, it is not worth one peruta when it is found, so he should agree that it need not be returned.
אֶלָּא: פְּרוּטָה שֶׁהוּקְרָה אִיכָּא בֵּינַיְיהוּ, מַאן דְּאָמַר ״וּמְצָאתָהּ״ – אִיכָּא, וּמַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – לֵיכָּא.
Rather, the practical difference between them is with regard to an item worth less than one peruta when it was lost that appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the term: “And you have found it,” there is an obligation to return the item, as that verse is referring to its value when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is no obligation to return the item, as that verse is referring to the value of the item when it was lost.
וּלְמַאן דְּאָמַר ״וּמְצָאתָהּ״, הָא בָּעֵינַן ״אֲשֶׁר תֹּאבַד״ וְלֵיכָּא!
The Gemara asks: But even according to the one who says that the halakha is derived from the term “and you have found it,” do we not require the item to be worth one peruta when it is lost, based on the phrase “which shall be lost from him”? And in this case, it is not worth one peruta when it was lost, so he should agree that it need not be returned.
אֶלָּא פְּרוּטָה שֶׁהוּקְרָה וְהוּזְלָה וְחָזְרָה וְהוּקְרָה אִיכָּא בֵּינַיְיהוּ. מַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – אִיכָּא. וּמַאן דְּאָמַר ״וּמְצָאתָהּ״ – בָּעֵינַן דְּאִית בַּהּ שִׁיעוּר מְצִיאָה מִשְּׁעַת אֲבֵידָה וְעַד שְׁעַת מְצִיאָה.
Rather, the practical difference between them is with regard to the case of an item worth one peruta when it was lost that appreciated in value and was devalued in the interim and was worth less than one peruta, and then appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is an obligation to return the item, as the verse is referring to its value only when it was lost and when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from: “And you have found it,” there is no obligation to return the item, as we require that there will be the value of one peruta, the requisite measure of a lost item, from the time of its loss and until the time of its finding, as the conjunction “and” connects the time of the finding to the time of the loss.
אִיבַּעְיָא לְהוּ: סִימָנִין דְּאוֹרָיְיתָא אוֹ דְרַבָּנַן? מַאי נָפְקָא מִינַּהּ?
§ A dilemma was raised before the Sages: Is identification of an item on the basis of distinguishing marks by Torah law or is it by rabbinic law? The Gemara asks: What difference is there whether it is by Torah law or by rabbinic law?
לְאַהְדּוֹרֵי גֵּט אִשָּׁה בְּסִימָנִים. אִי אָמְרַתְּ דְּאוֹרָיְיתָא – מַהְדְּרִינַן, וְאִי אָמְרַתְּ דְּרַבָּנַן – כִּי עֲבוּד רַבָּנַן תַּקַּנְתָּא בְּמָמוֹנָא, אֲבָל בְּאִיסּוּרָא – לָא עֲבוּד רַבָּנַן תַּקַּנְתָּא.
The Gemara answers: The practical difference is with regard to returning the bill of divorce of a woman that was lost by an agent before its delivery, on the basis of distinguishing marks. If you say that the identification of an item on the basis of distinguishing marks is by Torah law, we return the document and allow the agent to transmit it to the woman. But if you say that it is by rabbinic law, we do not return the document, because when the Sages institute an ordinance, it is only with regard to monetary matters they have the authority to declare property ownerless; but with regard to ritual matters, the Sages do not institute an ordinance. They lack the authority to abrogate the prohibitions by Torah law that are associated with a woman’s marital status.
תָּא שְׁמַע: אַף הַשִּׂמְלָה הָיְתָה בִּכְלַל כׇּל אֵלּוּ, וְלָמָּה יָצָאת לְהַקִּישׁ אֵלֶיהָ? וְלוֹמַר לְךָ: מָה שִׂמְלָה מְיוּחֶדֶת שֶׁיֵּשׁ לָהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין חַיָּיב לְהַכְרִיז, אַף כׇּל דָּבָר שֶׁיֵּשׁ לוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִין חַיָּיב לְהַכְרִיז. תַּנָּא: תּוֹבְעִין אִצְטְרִיכָא לֵיהּ, סִימָנִין כְּדִי נַסְבַהּ.
The Gemara suggests: Come and hear proof from the mishna: The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that is should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects the proof: Perhaps it was necessary for the tanna to mention only the criterion of claimants, and the tanna cited the criterion of distinguishing marks for no reason, as by Torah law distinguishing marks are not a relevant factor.
תָּא שְׁמַע: חֲמוֹר בְּסִימָנֵי אוּכָּף. אֵימָא ״בְּעֵדֵי אוּכָּף״.
The Gemara suggests: Come and hear proof from the aforementioned statement: The obligation to return a donkey to its owner on the basis of the distinguishing marks of the saddle is derived based on the mention of the word “donkey” in the verse from Deuteronomy. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: Emend the baraita and say: There is an obligation to return the donkey only on the basis of witnesses who testify with regard to the identity of the owner based on the fact that the saddle belongs to him, and not on the basis of distinguishing marks.
תָּא שְׁמַע: ״וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ״. וְכִי תַּעֲלֶה עַל דַּעְתְּךָ שֶׁיִּתְּנֶנּוּ לוֹ קוֹדֶם שֶׁיִּדְרְשֶׁנּוּ?! אֶלָּא דׇּרְשֵׁהוּ אִם רַמַּאי הוּא אוֹ אֵינוֹ רַמַּאי.
The Gemara suggests: Come and hear proof from a mishna (28b): “And if your brother be not near you, and you know him not, then you shall bring it into your house, and it shall be with you until your brother claims [derosh] it, and you shall return it to him” (Deuteronomy 22:2). Would it enter your mind that he would give the lost item to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb derosh is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. Scrutinize him [darshehu] to determine whether the claimant is a swindler or whether he is not a swindler. Only then may you return the lost item to him.
מַאי לָאו בְּסִימָנִין? לֹא, בְּעֵדִים.
The Gemara states its suggested proof: What, is it not that the one who claims the lost item proves that he is not a swindler on the basis of distinguishing marks that he provides? Apparently, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: No, the determination of whether he is a swindler is on the basis of scrutinizing his witnesses.
תָּא שְׁמַע: אֵין מְעִידִין אֶלָּא עַל פַּרְצוּף הַפָּנִים עִם הַחוֹטֶם, אַף עַל פִּי שֶׁיֵּשׁ סִימָנִין בְּגוּפוֹ וּבְכֵלָיו.
The Gemara suggests: Come and hear proof from a mishna (Yevamot 120a): One testifies that a man died, thereby permitting his wife to remarry, only if he can testify about seeing the countenance [partzuf ] of the face with the nose, as this allows one to identify the individual with certainty. Although there are distinguishing marks on his body and on his garments, which appear to indicate his identity, they cannot be used to identify the person.
שְׁמַע מִינַּהּ סִימָנִין לָאו דְּאוֹרָיְיתָא! אָמְרִי: גּוּפוֹ – דְּאָרוֹךְ וְגוּץ. כֵּלָיו – דְּחָיְישִׁינַן לִשְׁאֵלָה.
The Gemara states its suggested proof: Conclude from it that the identification of an item on the basis of distinguishing marks is not by Torah law. The Sages say in rejecting that proof: The distinguishing marks on his body mentioned in the mishna are non-specific distinguishing marks, e.g., that he was tall or short, and that is the reason that the distinguishing marks are ineffective in determining his identity. The distinguishing marks on his garments mentioned in the mishna are ineffective in determining his identity, as we are concerned about the possibility of a loan, e.g., perhaps the husband loaned his clothes to the deceased.
אִי חָיְישִׁינַן לִשְׁאֵלָה, חֲמוֹר בְּסִימָנֵי אוּכָּף הֵיכִי מַהְדְּרִינַן? אָמְרִי: אוּכָּף, לָא שָׁאיְלִי אִינָשֵׁי אוּכָּפָא, מִשּׁוּם דִּמְסַקֵּב לֵיהּ לַחֲמָרָא.
The Gemara asks: If we are concerned about the possibility of a loan, how do we return a donkey to its owner on the basis of the distinguishing marks of the saddle; perhaps it was borrowed? The Sages say in response: People do not typically borrow a saddle because saddles that are not custom fit wound the donkey.
אִיבָּעֵית אֵימָא: כֵּלָיו בְּחִיוָּרֵי וּבְסוּמְקִי.
If you wish, say instead: The distinguishing marks on his garments mentioned in the mishna are non-specific distinguishing marks, e.g., where the witness said that they were white or red, and that is the reason that the distinguishing marks are ineffective in determining his identity.
אֶלָּא הָא דְּתַנְיָא: מְצָאוֹ קָשׁוּר בְּכִיס אוֹ בְּאַרְנָקִי וּבְטַבַּעַת, אוֹ שֶׁמְּצָאוֹ בֵּין כֵּלָיו, אֲפִילּוּ לִזְמַן מְרוּבֶּה – כָּשֵׁר. וְאִי סָלְקָא דַעְתָּךְ חָיְישִׁינַן לִשְׁאֵלָה, כִּי מְצָאוֹ קָשׁוּר בְּכִיס אַמַּאי כָּשֵׁר? נֵיחוּשׁ לִשְׁאֵלָה!
The Gemara questions the previous answer with regard to the concern about the possibility of a loan. But there is that which is taught in a baraita: If the agent found the bill of divorce that he lost bound to his pouch, or his purse, or his signet ring, or if he found it among his garments, even if he found it a long time after he lost it, the distinguishing marks on those items are sufficient in order to identify the bill of divorce as the one that he lost, and it is valid. And if it enters your mind that we are concerned about the possibility of a loan, when he found the bill of divorce bound to his pouch, why is it valid? Let us be concerned about the possibility of a loan and that perhaps the pouch and the bill of divorce belong to someone else.
אָמְרִי: כִּיס וְאַרְנָקִי וְטַבַּעַת לָא מַשְׁאֲלִי אִינָשֵׁי. כִּיס וְאַרְנָקִי – מִשּׁוּם דִּמְסַמְּנִי, וְטַבַּעַת – מִשּׁוּם דִּמְזַיֵּיף.
The Sages say in response: There is no concern in this case, as people do not loan a pouch, a purse, or a signet ring to another person. One does not loan his pouch and his purse to others due to the fact that it portends the loss of his good fortune. And one does not loan his signet ring to others due to the fact that it could be used to forge documents.
לֵימָא כְתַנָּאֵי: אֵין מְעִידִין עַל הַשּׁוּמָא, וְאֶלְעָזָר בֶּן מַהֲבַאי אוֹמֵר: מְעִידִין עַל הַשּׁוּמָא. מַאי לָאו בְּהָא קָמִיפַּלְגִי? דְּתַנָּא קַמָּא סָבַר: סִימָנִין דְּרַבָּנַן, וְאֶלְעָזָר בֶּן מַהֲבַאי סָבַר: סִימָנִין דְּאוֹרָיְיתָא.
The Gemara suggests: Let us say that the dilemma whether the identification of an item on the basis of distinguishing marks is by Torah law or by rabbinic law is the subject of a dispute between tanna’im, as it is taught in a baraita: One does not testify on the basis of a mole on the body of the deceased to determine the identity of a man who died and permit his wife to remarry. And Elazar ben Mahavai says: One testifies to identify the corpse on the basis of a mole. What, is it not with regard to this matter that they disagree; as the first tanna holds that identification of an item on the basis of distinguishing marks is by rabbinic law and therefore, testimony concerning those marks cannot dissolve a marriage by Torah law; and Elazar ben Mahavai holds that identification of an item on the basis of distinguishing marks is by Torah law.
אָמַר רָבָא: דְּכוּלֵּי עָלְמָא סִימָנִין דְּאוֹרָיְיתָא, וְהָכָא בְּשׁוּמָא מְצוּיָה בְּבֶן גִּילוֹ קָמִיפַּלְגִי. מָר סָבַר: שׁוּמָא מְצוּיָה בְּבֶן גִּילוֹ, וּמָר סָבַר: שׁוּמָא אֵינָהּ מְצוּיָה בְּבֶן גִּילוֹ.
Rava said: That is not necessarily the crux of their dispute, as perhaps everyone agrees that identification of an item on the basis of distinguishing marks is by Torah law, and here, it is with regard to whether one needs to be concerned that a mole is often found on one’s contemporary, i.e., one born under the same constellation, rendering it useless as a means of identification, that they disagree. One Sage, the first tanna, holds that a mole is often found on one’s contemporary and therefore it is insufficient as a means of identification; and one Sage, Elazar ben Mahavai, holds that a mole is not often found on one’s contemporary, and therefore it is sufficient as a means of identification.
אִיבָּעֵית אֵימָא: דְּכוּלֵּי עָלְמָא שׁוּמָא אֵינָהּ מְצוּיָה בְּבֶן גִּילוֹ, וְהָכָא בְּסִימָנִין הָעֲשׂוּיִן לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה קָמִיפַּלְגִי. מָר סָבַר: סִימָנִין עֲשׂוּיִם לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה. וּמָר סָבַר: סִימָנִין אֵין עֲשׂוּיִם לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה.
If you wish, say instead that everyone agrees that a mole is not often found on one’s contemporary, and here it is with regard to whether the appearance of distinguishing marks on the body is apt to change after death that they disagree. One Sage, the first tanna, holds that the appearance of distinguishing marks is apt to change after death, and that consequently they are insufficient as a means of identification; and one Sage, Elazar ben Mahavai, holds that the appearance of distinguishing marks is not apt to change after death, and therefore, they are sufficient as a means of identification.
אִיבָּעֵית אֵימָא: דְּכוּלֵּי עָלְמָא שׁוּמָא אֵינָהּ עֲשׂוּיָה לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה, וְסִימָנִין דְּרַבָּנַן, וְהָכָא בְּשׁוּמָא סִימָן מוּבְהָק הוּא קָמִיפַּלְגִי. מָר סָבַר: שׁוּמָא סִימָן מוּבְהָק הוּא, וּמָר סָבַר: שׁוּמָא לָאו סִימָן מוּבְהָק הוּא.
If you wish, say instead that everyone agrees that a mole is not apt to change after death, and that the identification of an item on the basis of distinguishing marks is by rabbinic law, and here it is with regard to whether a mole is a clear-cut distinguishing mark that they disagree. One Sage, Elazar ben Mahavai, holds that a mole is a clear-cut distinguishing mark that can be relied upon without hesitation even in matters of Torah law, e.g., dissolving a marriage; and one Sage, the first tanna, holds that a mole is not a clear-cut distinguishing mark. Since standard distinguishing marks are sufficient by rabbinic law, a marriage, which is in effect by Torah law, cannot be dissolved on the basis of a mole.
אָמַר רָבָא: אִם תִּמְצֵי לוֹמַר סִימָנִין לָאו דְּאוֹרָיְיתָא, הֵיכִי מַהְדְּרִינַן אֲבֵידְתָּא בְּסִימָנִין? דְּנִיחָא לֵיהּ לְמוֹצֵא אֲבֵידָה דְּנַהְדַּר בְּסִימָנִין, כִּי הֵיכִי דְּכִי אָבְדָה לֵיהּ לְדִידֵהּ נָמֵי נַהְדְּרוּ לֵיהּ בְּסִימָנִין.
Rava says: If you say that the identification of an item on the basis of distinguishing marks is not by Torah law, how do we return a lost item to the presumed owner on the basis of distinguishing marks; perhaps it will result in the return of property to one who was in fact not the owner? Rava answers: We return the lost item, as it is satisfactory to the finder of a lost item to return it on the basis of distinguishing marks, rather than exercise his right by Torah law to retain it, so that when an item is lost from him in the future, the finder will return it to him on the basis of distinguishing marks as well.
אֲמַר לֵיהּ רַב סָפְרָא לְרָבָא: וְכִי אָדָם עוֹשֶׂה טוֹבָה לְעַצְמוֹ בְּמָמוֹן שֶׁאֵינוֹ שֶׁלּוֹ?
Rav Safra said to Rava: But can a person perform an act that results in benefit for himself with property that is not his? The lost item belongs not to the finder but to the one who lost it. How can the finder waive the right of the true owner to the lost item so that he may recover his own lost item in the future?
אֶלָּא נִיחָא לֵיהּ לְבַעַל אֲבֵידָה לְמֵיהַב סִימָנִין וּלְמִשְׁקְלֵיהּ. מִידָּע יָדַע דְּעֵדִים לֵית לֵיהּ, וּמֵימָר אָמַר: כּוּלֵּי עָלְמָא לָא יָדְעִי סִימָנִין מוּבְהָקִים דִּידַהּ, וַאֲנָא יָהֵיבְנָא סִימָנִין מוּבְהָקִים דִּידַהּ וְשָׁקֵלְנָא לַהּ.
Rather, we return the lost item, as it is satisfactory to the owner of the lost item to be able to provide a description using distinguishing marks and on that basis take possession of the item. He knows that he has no witnesses to testify to his ownership, and he says: No one else knows the clear-cut distinguishing marks that are on the item. And I will provide a description using the clear-cut distinguishing marks, and based on that information I will take possession of the item. Each owner gives his tacit agreement to the return of lost items on the basis of distinguishing marks, based on the belief that he is best able to identify them.
אֶלָּא הָא דִּתְנַן, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אֶחָד הַלֹּוֶה מִשְּׁלֹשָׁה – יַחְזִיר לַלֹּוֶה, שְׁלֹשָׁה שֶׁלָּווּ מִן הָאֶחָד – יַחְזִיר לַמַּלְוֶה. נִיחָא לֵיהּ לְלֹוֶה לְאַהְדּוֹרֵי לֵיהּ לְמַלְוֶה?
The Gemara asks: But there is that which we learned in a mishna (20a), that Rabban Shimon ben Gamliel says: If one found three promissory notes relating to the loan of one debtor who borrowed money from three creditors, he must return the documents to the debtor. If one found three promissory notes relating to the loans of three debtors who borrowed money from one creditor, he must return the documents to the creditor. If one returns lost items on the basis of distinguishing marks due to the tacit agreement of the owners, is it satisfactory to the debtor to have the documents returned to the creditor, as doing so would enable the creditor to collect payment of the loan?
אֲמַר לֵיהּ: הָתָם סְבָרָא הוּא, אֶחָד הַלֹּוֶה מִשְּׁלֹשָׁה יַחְזִיר לַלֹּוֶה – דְּגַבֵּי לֹוֶה שְׁכִיחִי, גַּבֵּי מַלְוֶה לָא שְׁכִיחִי. שְׁמַע מִינַּהּ מִלֹּוֶה נְפוּל. שְׁלֹשָׁה שֶׁלָּווּ מֵאֶחָד יַחְזִיר לַמַּלְוֶה – דְּגַבֵּי מַלְוֶה שְׁכִיחִי, גַּבֵּי לֹוֶה לָא שְׁכִיחִי.
Rava said to Rav Safra: There, the obligation to return the promissory notes to the creditor is not on the basis of distinguishing marks; rather, it is based on logical reasoning. If one found three promissory notes relating to the loan of one debtor who borrowed money from three creditors, he shall return the documents to the debtor, because a group of several documents indicating that one debtor borrowed money from several creditors is typically found with the debtor and is not typically found with a creditor, as the only element common to all the documents is the debtor. Conclude from it that the group of documents fell from the debtor while they were in his possession. If one found three promissory notes relating to the loans of three debtors who borrowed money from one creditor, he shall return the documents to the creditor, because a group of several documents indicating that multiple debtors borrowed money from a single creditor is typically found with the creditor and is not typically found with a debtor, as the only element common to all the documents is the creditor.
New to Talmud?
Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you.
The Hadran Women’s Tapestry
Meet the diverse women learning Gemara at Hadran and hear their stories.
My curiosity was peaked after seeing posts about the end of the last cycle. I am always looking for opportunities to increase my Jewish literacy & I am someone that is drawn to habit and consistency. Dinnertime includes a “Guess what I learned on the daf” segment for my husband and 18 year old twins. I also love the feelings of connection with my colleagues who are also learning.
Tampa, United States
Berlin, Germany
Attending the Siyyum in Jerusalem 26 months ago inspired me to become part of this community of learners. So many aspects of Jewish life have been illuminated by what we have learned in Seder Moed. My day is not complete without daf Yomi. I am so grateful to Rabbanit Michelle and the Hadran Community.
Newton, United States
In early January of 2020, I learned about Siyyum HaShas and Daf Yomi via Tablet Magazine’s brief daily podcast about the Daf. I found it compelling and fascinating. Soon I discovered Hadran; since then I have learned the Daf daily with Rabbanit Michelle Cohen Farber. The Daf has permeated my every hour, and has transformed and magnified my place within the Jewish Universe.
San Francisco, CA , United States
I learned daf more off than on 40 years ago. At the beginning of the current cycle, I decided to commit to learning daf regularly. Having Rabanit Michelle available as a learning partner has been amazing. Sometimes I learn with Hadran, sometimes with my husband, and sometimes on my own. It’s been fun to be part of an extended learning community.
Honolulu, Hawaii, United States
I started learning at the start of this cycle, and quickly fell in love. It has become such an important part of my day, enriching every part of my life.
Toronto, Canada
I started learning Jan 2020 when I heard the new cycle was starting. I had tried during the last cycle and didn’t make it past a few weeks. Learning online from old men didn’t speak to my soul and I knew Talmud had to be a soul journey for me. Enter Hadran! Talmud from Rabbanit Michelle Farber from a woman’s perspective, a mother’s perspective and a modern perspective. Motivated to continue!
Brentwood, California, United States
After being so inspired by the siyum shas two years ago, I began tentatively learning daf yomi, like Rabbanut Michelle kept saying – taking one daf at a time. I’m still taking it one daf at a time, one masechet at a time, but I’m loving it and am still so inspired by Rabbanit Michelle and the Hadran community, and yes – I am proud to be finishing Seder Mo’ed.
Bet Shemesh, Israel
It has been a pleasure keeping pace with this wonderful and scholarly group of women.
Beit Shemesh, Israel
I started learning at the beginning of this cycle more than 2 years ago, and I have not missed a day or a daf. It’s been challenging and enlightening and even mind-numbing at times, but the learning and the shared experience have all been worth it. If you are open to it, there’s no telling what might come into your life.
Phoenix, Arizona, United States
Blacksburg, United States
I never thought I’d be able to do Daf Yomi till I saw the video of Hadran’s Siyum HaShas. Now, 2 years later, I’m about to participate in Siyum Seder Mo’ed with my Hadran community. It has been an incredible privilege to learn with Rabbanit Michelle and to get to know so many caring, talented and knowledgeable women. I look forward with great anticipation and excitement to learning Seder Nashim.
Karmiel, Israel
I started my journey on the day I realized that the Siyum was happening in Yerushalayim and I was missing out. What? I told myself. How could I have not known about this? How can I have missed out on this opportunity? I decided that moment, I would start Daf Yomi and Nach Yomi the very next day. I am so grateful to Hadran. I am changed forever because I learn Gemara with women. Thank you.
Mitspe, Israel
Ive been learning Gmara since 5th grade and always loved it. Have always wanted to do Daf Yomi and now with Michelle Farber’s online classes it made it much easier to do! Really enjoying the experience thank you!!
Neve Daniel, Israel
When we heard that R. Michelle was starting daf yomi, my 11-year-old suggested that I go. Little did she know that she would lose me every morning from then on. I remember standing at the Farbers’ door, almost too shy to enter. After that first class, I said that I would come the next day but couldn’t commit to more. A decade later, I still look forward to learning from R. Michelle every morning.
Ra’anana, Israel
I started learning with rabbis. I needed to know more than the stories. My first teacher to show me “the way of the Talmud” as well as the stories was Samara Schwartz.
Michelle Farber started the new cycle 2 yrs ago and I jumped on for the ride.
I do not look back.
Houston, United States
After experiences over the years of asking to join gemara shiurim for men and either being refused by the maggid shiur or being the only women there, sometimes behind a mechitza, I found out about Hadran sometime during the tail end of Masechet Shabbat, I think. Life has been much better since then.
London, United Kingdom
When I was working and taking care of my children, learning was never on the list. Now that I have more time I have two different Gemora classes and the nach yomi as well as the mishna yomi daily.
Jerusalem, Israel
I started learning Talmud with R’ Haramati in Yeshivah of Flatbush. But after a respite of 60 years, Rabbanit Michelle lit my fire – after attending the last three world siyumim in Miami Beach, Meadowlands and Boca Raton, and now that I’m retired, I decided – “I can do this!” It has been an incredible journey so far, and I look forward to learning Daf everyday – Mazal Tov to everyone!
Florida, United States
Margo
I started my Talmud journey in 7th grade at Akiba Jewish Day School in Chicago. I started my Daf Yomi journey after hearing Erica Brown speak at the Hadran Siyum about marking the passage of time through Daf Yomi.
Carolyn
I started my Talmud journey post-college in NY with a few classes. I started my Daf Yomi journey after the Hadran Siyum, which inspired both my son and myself.
Merion Station, USA
Beit Shemesh, Israel
Bava Metzia 27
בְּלוֹקֵחַ מִן הַתַּגָּר, אֲבָל בְּלוֹקֵחַ מִבַּעַל הַבַּיִת – חַיָּיב לְהַחְזִיר. וְכֵן תָּנֵי תַּנָּא קַמֵּיהּ דְּרַב נַחְמָן: לֹא שָׁנוּ אֶלָּא בְּלוֹקֵחַ מִן הַתַּגָּר, אֲבָל בְּלוֹקֵחַ מִבַּעַל הַבַּיִת – חַיָּיב לְהַחְזִיר.
in the case of one who purchases produce from a merchant, who acquired the produce from several suppliers and is unable to determine the source of the coins. But in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller. And likewise, the tanna who recited mishnayot and baraitot in the study hall of Rav Naḥman taught a baraita before Rav Naḥman: The Sages taught that the coins belong to the buyer only in the case of one who purchases produce from a merchant, but in the case of one who purchases produce from a single owner, he is obligated to return the coins to the seller.
אֲמַר לֵיהּ רַב נַחְמָן: וְכִי בַּעַל הַבַּיִת בְּעַצְמוֹ דָּשָׁן? אֲמַר לֵיהּ: אֶיסְמְיַהּ? אֲמַר לֵיהּ: לָא, תִּתַּרְגַּם מַתְנִיתִין כְּגוֹן שֶׁדָּשָׁן עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַכְּנַעֲנִים.
Rav Naḥman said to the tanna: But does the owner thresh the grain himself? His workers thresh the grain, and the coins could belong to one of them. The tanna said to Rav Naḥman: Based on the difficulty you raise, should I delete it from the collection of authoritative baraitot? Rav Naḥman said to the tanna: No. Interpret the baraita as referring to a case where the grain was threshed by his Canaanite slave or maidservant, and therefore any coins found intermingled with the produce belong to the owner.
מַתְנִי׳ אַף הַשִּׂמְלָה הָיְתָה בִּכְלַל כׇּל אֵלּוּ, וְלָמָּה יָצָאת? לְהַקִּישׁ אֵלֶיהָ, לוֹמַר לְךָ: מָה שִׂמְלָה מְיוּחֶדֶת, שֶׁיֵּשׁ בָּהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין, אַף כׇּל דָּבָר שֶׁיֵּשׁ בּוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִים חַיָּיב לְהַכְרִיז.
MISHNA: This mishna is an excerpt from a halakhic midrash concerning lost items, based on the verse: “You shall not see your brother’s ox or his sheep wandering, and disregard them; you shall return them to your brother…And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:1, 3). The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that it should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find.
גְּמָ׳ מַאי ״בִּכְלַל כׇּל אֵלּוּ״? אָמַר רָבָא: בִּכְלַל ״כׇּל אֲבֵדַת אָחִיךָ״.
GEMARA: When the mishna says that the garment was included in the generalization that one must return all of these items, in what generalization is it included? Rava said: It is included in the generalization: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it; you may not disregard it” (Deuteronomy 22:3).
אָמַר רָבָא: לְמָה לִי דִּכְתַב רַחֲמָנָא ״שׁוֹר״, ״חֲמוֹר״, ״שֶׂה״ וְ״שִׂמְלָה״?
Rava says: Why do I need all the specific items that the Merciful One writes that one must return: An ox, a donkey, a sheep, and a garment? One of them would seem to suffice.
צְרִיכִי, דְּאִי כְּתַב רַחֲמָנָא שִׂמְלָה, הֲוָה אָמֵינָא: הָנֵי מִילֵּי בְּעֵדִים דְּגוּפַהּ וְסִימָנִין דְּגוּפַהּ. אֲבָל חֲמוֹר בְּעֵדִים דְּאוּכָּף וְסִימָנִין דְּאוּכָּף, אֵימָא לָא מַהְדְּרִינַן לֵיהּ, כְּתַב רַחֲמָנָא ״חֲמוֹר״ דַּאֲפִילּוּ חֲמוֹר בְּסִימָנֵי הָאוּכָּף.
Rava answers: They are all necessary, as a unique halakha is derived from each example. As, if the Merciful One had written only “garment,” I would say: This matter, i.e., the mitzva to return a lost item, applies only in a case where the owner brings witnesses capable of testifying about the item itself or he describes distinguishing marks concerning the item itself; but with regard to returning a donkey to its owner in a case where he brings witnesses with regard to the saddle or describes distinguishing marks concerning the saddle and not on the donkey, say that we do not return the donkey to the owner. To counter this, the Merciful One writes: “Donkey,” from which it is derived that a donkey is returned to its owner even in a case where he describes distinguishing marks on the saddle.
״שׁוֹר״ וָ״שֶׂה״, דִּכְתַב רַחֲמָנָא לְמָה לִי? ״שׁוֹר״ – דַּאֲפִילּוּ לְגִיזַּת זְנָבוֹ, וְ״שֶׂה״ – לְגִיזּוֹתָיו. וְלִכְתּוֹב רַחֲמָנָא ״שׁוֹר״, דַּאֲפִילּוּ לְגִיזַּת זְנָבוֹ, וְכׇל שֶׁכֵּן ״שֶׂה״ לְגִיזּוֹתָיו!
Rava continues: With regard to the specific mentions of “ox” and “sheep” that the Merciful One writes, why do I need them? Rava answers: From “ox” it is derived that one must return even the sheared wool of its tail; and from “sheep” it is derived that one must return even its sheared wool. The Gemara challenges: And let the Merciful One write only “ox,” from which it is derived that one must return even the sheared wool of its tail, and derive all the more so that one must return the more substantial sheared wool of a sheep.
אֶלָּא אָמַר רָבָא: ״חֲמוֹר״ דְּבוֹר לְרַבִּי יְהוּדָה, וְ״שֶׂה״ דַאֲבֵידָה – לְדִבְרֵי הַכֹּל קַשְׁיָא.
Rather, Rava said: The term “donkey” stated with regard to damage in the category of Pit, according to the opinion of Rabbi Yehuda (see Exodus 21:33 and Bava Kamma 54a), and the term “sheep” stated with regard to a lost item, according to the opinion of everyone, are difficult. There is no explanation for why they are stated.
וְאֵימָא לִגְלָלִים הוּא דַּאֲתָא? גְּלָלִים – אַפְקוֹרֵי מַפְקַר לְהוּ. וְדִילְמָא לְסִימָנִין הוּא דַּאֲתָא, דְּאִיבַּעְיָא לַן: סִימָנִין דְּאוֹרָיְיתָא אוֹ דְרַבָּנַן. כְּתַב רַחֲמָנָא ״שֶׂה״, דַּאֲפִילּוּ בְּסִימָנִין מַהְדְּרִינַן, וְסִימָנִין דְּאוֹרָיְיתָא.
The Gemara suggests: And say that the term “sheep” comes to teach the obligation to return the animal’s dung? The Gemara answers: One need not return dung, because the owner has renounced its ownership. The Gemara suggests: And perhaps the term “sheep” comes to teach the obligation to return an item based on its owner providing distinguishing marks, as we raised a dilemma: Is the halakha that an item can be identified using distinguishing marks by Torah law or is it by rabbinic law? Therefore, the Merciful One writes: “Sheep” in order to teach that it is not only through the testimony of witnesses, but even based on distinguishing marks that we return lost items to their owner. Resolve the dilemma and conclude that the halakha that an item can be identified using distinguishing marks is by Torah law.
אָמְרִי: מִדְּקָתָנֵי לְהוּ תַּנָּא, לְסִימָנִין גַּבֵּי שִׂמְלָה, דְּקָתָנֵי: מָה שִׂמְלָה מְיוּחֶדֶת שֶׁיֵּשׁ בָּהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין – חַיָּיב לְהַכְרִיז, אַף כׇּל דָּבָר שֶׁיֵּשׁ בּוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִין – חַיָּיב לְהַכְרִיז. שְׁמַע מִינַּהּ דְּ״שֶׂה״ לָאו לְסִימָנִין הוּא דַּאֲתָא.
The Gemara rejects this proof. The Sages say: One can understand the matter from the fact that the tanna teaches the concept of distinguishing marks together with the term garment. As it is taught in the mishna: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Conclude from it that the term “sheep” does not come to teach the obligation to return an item based on its owner providing distinguishing marks.
תָּנוּ רַבָּנַן: ״אֲשֶׁר תֹּאבַד״ – פְּרָט לַאֲבֵידָה שֶׁאֵין בָּהּ שָׁוֶה פְּרוּטָה. רַבִּי יְהוּדָה אוֹמֵר: ״וּמְצָאתָהּ״ – פְּרָט לַאֲבֵידָה שֶׁאֵין בָּהּ שָׁוֶה פְּרוּטָה.
The Sages taught in a baraita: The verse states: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The Rabbis derive that this phrase serves to exclude a lost item in which there is not the value of one peruta, which due to its negligible value is not considered lost. Rabbi Yehuda says that this halakha is derived from the conclusion of that verse: “Which shall be lost from him, and you have found it.” The term “and you have found it” serves to exclude a lost item in which there is not the value of one peruta.
מַאי בֵּינַיְיהוּ? אָמַר אַבָּיֵי: מַשְׁמָעוּת דּוֹרְשִׁין אִיכָּא בֵּינַיְיהוּ. מָר נָפְקָא לֵיהּ מֵ״אֲשֶׁר תֹּאבַד״ וּמָר נָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״.
The Gemara asks: What is the practical difference between the two opinions? Ostensibly, the Rabbis and Rabbi Yehuda both state the same halakha. Abaye said: There is no practical difference. Rather, the interpretation of the meaning of the verse is the difference between them. One Sage, the Rabbis, derives it from the phrase: “Which shall be lost from him”; and one Sage, Rabbi Yehuda, derives it from the term: “And you have found it.”
וּלְמַאן דְּנָפְקָא לֵיהּ מֵ״אֲשֶׁר תֹּאבַד״ הַאי ״וּמְצָאתָהּ״ מַאי עָבֵיד לֵיהּ?
The Gemara asks: And according to the first Sage, the Rabbis, who derives the halakha that one need not return a lost item worth less than one peruta from the phrase “which shall be lost from him,” what does he do with the term: “And you have found it”?
הַהוּא מִיבְּעֵי לֵיהּ לְכִדְרַבְנַאי, דְּאָמַר רַבְנַאי: ״וּמְצָאתָהּ״ – דַּאֲתַאי לִידֵיהּ מַשְׁמַע.
The Gemara answers: According to the Rabbis, that term is necessary for the derivation of the halakha in accordance with the opinion of Rabbenai. As Rabbenai says in interpreting the verse: “And so shall you do with every lost item of your brother’s, which he has lost, and you have found it” (Deuteronomy 22:3), that the term “and you have found it” means that it assumes the status of a found item only when it actually enters his possession.
וּלְמַאן דְּנָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״, הַאי ״אֲשֶׁר תֹּאבַד״ מַאי עָבֵיד לֵיהּ?
The Gemara asks: And according to Rabbi Yehuda, who derives the halakha that one need not return a lost item worth less than one peruta from the term: “And you have found it,” what does he do with the phrase: “Which has been lost from him”?
מִבְּעֵי לֵיהּ לְכִדְרַבִּי יוֹחָנָן. דְּאָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי שִׁמְעוֹן בֶּן יוֹחַאי: מִנַּיִין לַאֲבֵידָה שֶׁשְּׁטָפָהּ נָהָר שֶׁהִיא מוּתֶּרֶת? שֶׁנֶּאֱמַר: ״כֵּן תַּעֲשֶׂה לְכׇל אֲבֵדַת אָחִיךָ אֲשֶׁר תֹּאבַד מִמֶּנּוּ וּמְצָאתָהּ״ – מִי שֶׁאֲבוּדָה הֵימֶנּוּ וּמְצוּיָה אֵצֶל כׇּל אָדָם, יָצְתָה זוֹ שֶׁאֲבוּדָה הֵימֶנּוּ וְאֵינָהּ מְצוּיָה אֵצֶל כׇּל אָדָם.
The Gemara answers: According to Rabbi Yehuda, that phrase is necessary for the derivation of the halakha in accordance with the opinion of Rabbi Yoḥanan. As Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yoḥai: From where is it derived with regard to a lost item that the river swept away that it is permitted for its finder to keep it? It is derived from this verse, as it is written: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it” (Deuteronomy 22:3). The verse states that one must return that which is lost from him, the owner, but is available to be found by any person. Excluded from that obligation is that which is lost from him and is not available to be found by any person; it is ownerless property and anyone who finds it may keep it.
וְאִידַּךְ, הָא דְּרַבְנַאי מְנָא לֵיהּ? נָפְקָא לֵיהּ מִ״וּמְצָאתָהּ״.
The Gemara asks: And the other tanna, Rabbi Yehuda, who derived from the term: “And you have found it,” that one need not return a lost item worth less than one peruta, from where does he derive the halakha of Rabbenai that the item assumes the status of a found item only when it actually comes into his possession? The Gemara answers: Rabbi Yehuda derives it from the superfluous conjunction “and” in the term “and you have found it.”
וְאִידַּךְ, הָא דְּרַבִּי יוֹחָנָן מְנָא לֵיהּ? נָפְקָא לֵיהּ ״מִמֶּנּוּ״. וְאִידָּךְ? ״מִמֶּנּוּ״ לָא מַשְׁמַע לֵיהּ.
The Gemara asks further: And the other tanna, the first tanna, who derives from the phrase “which shall be lost from him” that one need not return a lost item worth less than one peruta, from where do they derive the halakha of Rabbi Yoḥanan that one need not return an item that is lost from him and is not available to be found by every person? The Gemara answers: He derives it from the superfluous term “from him,” in the phrase “which shall be lost from him.” And as for the other tanna, Rabbi Yehuda, he does not learn anything from the term “from him.”
רָבָא אָמַר: פְּרוּטָה שֶׁהוּזְלָה אִיכָּא בֵּינַיְיהוּ, מַאן דְּאָמַר מֵ״אֲשֶׁר תֹּאבַד״ – אִיכָּא, וּמַאן דְּאָמַר מִ״וּמְצָאתָהּ״ – לֵיכָּא.
Abaye explained that there is no practical difference between the opinion of the first tanna and Rabbi Yehuda. By contrast, Rava said: The practical difference between them is with regard to an item that was worth one peruta when it was lost but that was then devalued and was worth less than one peruta when it was found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase “which shall be lost from him,” there is an obligation to return the item, as that verse is referring to the value of the item when it was lost. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “And you have found it,” there is no obligation to return the item, as that verse is referring to the value of the item when it is found.
וּלְמַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – הָא בָּעֵינַן ״וּמְצָאתָהּ״, וְלֵיכָּא!
The Gemara asks: But even according to the one who says that the halakha is derived from the phrase “which shall be lost from him,” do we not require the item to be worth one peruta when it is found, based on the term “and you have found it”? And in this case, it is not worth one peruta when it is found, so he should agree that it need not be returned.
אֶלָּא: פְּרוּטָה שֶׁהוּקְרָה אִיכָּא בֵּינַיְיהוּ, מַאן דְּאָמַר ״וּמְצָאתָהּ״ – אִיכָּא, וּמַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – לֵיכָּא.
Rather, the practical difference between them is with regard to an item worth less than one peruta when it was lost that appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the term: “And you have found it,” there is an obligation to return the item, as that verse is referring to its value when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is no obligation to return the item, as that verse is referring to the value of the item when it was lost.
וּלְמַאן דְּאָמַר ״וּמְצָאתָהּ״, הָא בָּעֵינַן ״אֲשֶׁר תֹּאבַד״ וְלֵיכָּא!
The Gemara asks: But even according to the one who says that the halakha is derived from the term “and you have found it,” do we not require the item to be worth one peruta when it is lost, based on the phrase “which shall be lost from him”? And in this case, it is not worth one peruta when it was lost, so he should agree that it need not be returned.
אֶלָּא פְּרוּטָה שֶׁהוּקְרָה וְהוּזְלָה וְחָזְרָה וְהוּקְרָה אִיכָּא בֵּינַיְיהוּ. מַאן דְּאָמַר ״אֲשֶׁר תֹּאבַד״ – אִיכָּא. וּמַאן דְּאָמַר ״וּמְצָאתָהּ״ – בָּעֵינַן דְּאִית בַּהּ שִׁיעוּר מְצִיאָה מִשְּׁעַת אֲבֵידָה וְעַד שְׁעַת מְצִיאָה.
Rather, the practical difference between them is with regard to the case of an item worth one peruta when it was lost that appreciated in value and was devalued in the interim and was worth less than one peruta, and then appreciated in value and is worth one peruta when it is found. According to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from the phrase: “Which shall be lost from him,” there is an obligation to return the item, as the verse is referring to its value only when it was lost and when it is found. And according to the one who says that the halakha that one need not return a lost item worth less than one peruta is derived from: “And you have found it,” there is no obligation to return the item, as we require that there will be the value of one peruta, the requisite measure of a lost item, from the time of its loss and until the time of its finding, as the conjunction “and” connects the time of the finding to the time of the loss.
אִיבַּעְיָא לְהוּ: סִימָנִין דְּאוֹרָיְיתָא אוֹ דְרַבָּנַן? מַאי נָפְקָא מִינַּהּ?
§ A dilemma was raised before the Sages: Is identification of an item on the basis of distinguishing marks by Torah law or is it by rabbinic law? The Gemara asks: What difference is there whether it is by Torah law or by rabbinic law?
לְאַהְדּוֹרֵי גֵּט אִשָּׁה בְּסִימָנִים. אִי אָמְרַתְּ דְּאוֹרָיְיתָא – מַהְדְּרִינַן, וְאִי אָמְרַתְּ דְּרַבָּנַן – כִּי עֲבוּד רַבָּנַן תַּקַּנְתָּא בְּמָמוֹנָא, אֲבָל בְּאִיסּוּרָא – לָא עֲבוּד רַבָּנַן תַּקַּנְתָּא.
The Gemara answers: The practical difference is with regard to returning the bill of divorce of a woman that was lost by an agent before its delivery, on the basis of distinguishing marks. If you say that the identification of an item on the basis of distinguishing marks is by Torah law, we return the document and allow the agent to transmit it to the woman. But if you say that it is by rabbinic law, we do not return the document, because when the Sages institute an ordinance, it is only with regard to monetary matters they have the authority to declare property ownerless; but with regard to ritual matters, the Sages do not institute an ordinance. They lack the authority to abrogate the prohibitions by Torah law that are associated with a woman’s marital status.
תָּא שְׁמַע: אַף הַשִּׂמְלָה הָיְתָה בִּכְלַל כׇּל אֵלּוּ, וְלָמָּה יָצָאת לְהַקִּישׁ אֵלֶיהָ? וְלוֹמַר לְךָ: מָה שִׂמְלָה מְיוּחֶדֶת שֶׁיֵּשׁ לָהּ סִימָנִין וְיֵשׁ לָהּ תּוֹבְעִין חַיָּיב לְהַכְרִיז, אַף כׇּל דָּבָר שֶׁיֵּשׁ לוֹ סִימָנִין וְיֵשׁ לוֹ תּוֹבְעִין חַיָּיב לְהַכְרִיז. תַּנָּא: תּוֹבְעִין אִצְטְרִיכָא לֵיהּ, סִימָנִין כְּדִי נַסְבַהּ.
The Gemara suggests: Come and hear proof from the mishna: The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that is should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects the proof: Perhaps it was necessary for the tanna to mention only the criterion of claimants, and the tanna cited the criterion of distinguishing marks for no reason, as by Torah law distinguishing marks are not a relevant factor.
תָּא שְׁמַע: חֲמוֹר בְּסִימָנֵי אוּכָּף. אֵימָא ״בְּעֵדֵי אוּכָּף״.
The Gemara suggests: Come and hear proof from the aforementioned statement: The obligation to return a donkey to its owner on the basis of the distinguishing marks of the saddle is derived based on the mention of the word “donkey” in the verse from Deuteronomy. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: Emend the baraita and say: There is an obligation to return the donkey only on the basis of witnesses who testify with regard to the identity of the owner based on the fact that the saddle belongs to him, and not on the basis of distinguishing marks.
תָּא שְׁמַע: ״וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ״. וְכִי תַּעֲלֶה עַל דַּעְתְּךָ שֶׁיִּתְּנֶנּוּ לוֹ קוֹדֶם שֶׁיִּדְרְשֶׁנּוּ?! אֶלָּא דׇּרְשֵׁהוּ אִם רַמַּאי הוּא אוֹ אֵינוֹ רַמַּאי.
The Gemara suggests: Come and hear proof from a mishna (28b): “And if your brother be not near you, and you know him not, then you shall bring it into your house, and it shall be with you until your brother claims [derosh] it, and you shall return it to him” (Deuteronomy 22:2). Would it enter your mind that he would give the lost item to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb derosh is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. Scrutinize him [darshehu] to determine whether the claimant is a swindler or whether he is not a swindler. Only then may you return the lost item to him.
מַאי לָאו בְּסִימָנִין? לֹא, בְּעֵדִים.
The Gemara states its suggested proof: What, is it not that the one who claims the lost item proves that he is not a swindler on the basis of distinguishing marks that he provides? Apparently, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: No, the determination of whether he is a swindler is on the basis of scrutinizing his witnesses.
תָּא שְׁמַע: אֵין מְעִידִין אֶלָּא עַל פַּרְצוּף הַפָּנִים עִם הַחוֹטֶם, אַף עַל פִּי שֶׁיֵּשׁ סִימָנִין בְּגוּפוֹ וּבְכֵלָיו.
The Gemara suggests: Come and hear proof from a mishna (Yevamot 120a): One testifies that a man died, thereby permitting his wife to remarry, only if he can testify about seeing the countenance [partzuf ] of the face with the nose, as this allows one to identify the individual with certainty. Although there are distinguishing marks on his body and on his garments, which appear to indicate his identity, they cannot be used to identify the person.
שְׁמַע מִינַּהּ סִימָנִין לָאו דְּאוֹרָיְיתָא! אָמְרִי: גּוּפוֹ – דְּאָרוֹךְ וְגוּץ. כֵּלָיו – דְּחָיְישִׁינַן לִשְׁאֵלָה.
The Gemara states its suggested proof: Conclude from it that the identification of an item on the basis of distinguishing marks is not by Torah law. The Sages say in rejecting that proof: The distinguishing marks on his body mentioned in the mishna are non-specific distinguishing marks, e.g., that he was tall or short, and that is the reason that the distinguishing marks are ineffective in determining his identity. The distinguishing marks on his garments mentioned in the mishna are ineffective in determining his identity, as we are concerned about the possibility of a loan, e.g., perhaps the husband loaned his clothes to the deceased.
אִי חָיְישִׁינַן לִשְׁאֵלָה, חֲמוֹר בְּסִימָנֵי אוּכָּף הֵיכִי מַהְדְּרִינַן? אָמְרִי: אוּכָּף, לָא שָׁאיְלִי אִינָשֵׁי אוּכָּפָא, מִשּׁוּם דִּמְסַקֵּב לֵיהּ לַחֲמָרָא.
The Gemara asks: If we are concerned about the possibility of a loan, how do we return a donkey to its owner on the basis of the distinguishing marks of the saddle; perhaps it was borrowed? The Sages say in response: People do not typically borrow a saddle because saddles that are not custom fit wound the donkey.
אִיבָּעֵית אֵימָא: כֵּלָיו בְּחִיוָּרֵי וּבְסוּמְקִי.
If you wish, say instead: The distinguishing marks on his garments mentioned in the mishna are non-specific distinguishing marks, e.g., where the witness said that they were white or red, and that is the reason that the distinguishing marks are ineffective in determining his identity.
אֶלָּא הָא דְּתַנְיָא: מְצָאוֹ קָשׁוּר בְּכִיס אוֹ בְּאַרְנָקִי וּבְטַבַּעַת, אוֹ שֶׁמְּצָאוֹ בֵּין כֵּלָיו, אֲפִילּוּ לִזְמַן מְרוּבֶּה – כָּשֵׁר. וְאִי סָלְקָא דַעְתָּךְ חָיְישִׁינַן לִשְׁאֵלָה, כִּי מְצָאוֹ קָשׁוּר בְּכִיס אַמַּאי כָּשֵׁר? נֵיחוּשׁ לִשְׁאֵלָה!
The Gemara questions the previous answer with regard to the concern about the possibility of a loan. But there is that which is taught in a baraita: If the agent found the bill of divorce that he lost bound to his pouch, or his purse, or his signet ring, or if he found it among his garments, even if he found it a long time after he lost it, the distinguishing marks on those items are sufficient in order to identify the bill of divorce as the one that he lost, and it is valid. And if it enters your mind that we are concerned about the possibility of a loan, when he found the bill of divorce bound to his pouch, why is it valid? Let us be concerned about the possibility of a loan and that perhaps the pouch and the bill of divorce belong to someone else.
אָמְרִי: כִּיס וְאַרְנָקִי וְטַבַּעַת לָא מַשְׁאֲלִי אִינָשֵׁי. כִּיס וְאַרְנָקִי – מִשּׁוּם דִּמְסַמְּנִי, וְטַבַּעַת – מִשּׁוּם דִּמְזַיֵּיף.
The Sages say in response: There is no concern in this case, as people do not loan a pouch, a purse, or a signet ring to another person. One does not loan his pouch and his purse to others due to the fact that it portends the loss of his good fortune. And one does not loan his signet ring to others due to the fact that it could be used to forge documents.
לֵימָא כְתַנָּאֵי: אֵין מְעִידִין עַל הַשּׁוּמָא, וְאֶלְעָזָר בֶּן מַהֲבַאי אוֹמֵר: מְעִידִין עַל הַשּׁוּמָא. מַאי לָאו בְּהָא קָמִיפַּלְגִי? דְּתַנָּא קַמָּא סָבַר: סִימָנִין דְּרַבָּנַן, וְאֶלְעָזָר בֶּן מַהֲבַאי סָבַר: סִימָנִין דְּאוֹרָיְיתָא.
The Gemara suggests: Let us say that the dilemma whether the identification of an item on the basis of distinguishing marks is by Torah law or by rabbinic law is the subject of a dispute between tanna’im, as it is taught in a baraita: One does not testify on the basis of a mole on the body of the deceased to determine the identity of a man who died and permit his wife to remarry. And Elazar ben Mahavai says: One testifies to identify the corpse on the basis of a mole. What, is it not with regard to this matter that they disagree; as the first tanna holds that identification of an item on the basis of distinguishing marks is by rabbinic law and therefore, testimony concerning those marks cannot dissolve a marriage by Torah law; and Elazar ben Mahavai holds that identification of an item on the basis of distinguishing marks is by Torah law.
אָמַר רָבָא: דְּכוּלֵּי עָלְמָא סִימָנִין דְּאוֹרָיְיתָא, וְהָכָא בְּשׁוּמָא מְצוּיָה בְּבֶן גִּילוֹ קָמִיפַּלְגִי. מָר סָבַר: שׁוּמָא מְצוּיָה בְּבֶן גִּילוֹ, וּמָר סָבַר: שׁוּמָא אֵינָהּ מְצוּיָה בְּבֶן גִּילוֹ.
Rava said: That is not necessarily the crux of their dispute, as perhaps everyone agrees that identification of an item on the basis of distinguishing marks is by Torah law, and here, it is with regard to whether one needs to be concerned that a mole is often found on one’s contemporary, i.e., one born under the same constellation, rendering it useless as a means of identification, that they disagree. One Sage, the first tanna, holds that a mole is often found on one’s contemporary and therefore it is insufficient as a means of identification; and one Sage, Elazar ben Mahavai, holds that a mole is not often found on one’s contemporary, and therefore it is sufficient as a means of identification.
אִיבָּעֵית אֵימָא: דְּכוּלֵּי עָלְמָא שׁוּמָא אֵינָהּ מְצוּיָה בְּבֶן גִּילוֹ, וְהָכָא בְּסִימָנִין הָעֲשׂוּיִן לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה קָמִיפַּלְגִי. מָר סָבַר: סִימָנִין עֲשׂוּיִם לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה. וּמָר סָבַר: סִימָנִין אֵין עֲשׂוּיִם לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה.
If you wish, say instead that everyone agrees that a mole is not often found on one’s contemporary, and here it is with regard to whether the appearance of distinguishing marks on the body is apt to change after death that they disagree. One Sage, the first tanna, holds that the appearance of distinguishing marks is apt to change after death, and that consequently they are insufficient as a means of identification; and one Sage, Elazar ben Mahavai, holds that the appearance of distinguishing marks is not apt to change after death, and therefore, they are sufficient as a means of identification.
אִיבָּעֵית אֵימָא: דְּכוּלֵּי עָלְמָא שׁוּמָא אֵינָהּ עֲשׂוּיָה לְהִשְׁתַּנּוֹת לְאַחַר מִיתָה, וְסִימָנִין דְּרַבָּנַן, וְהָכָא בְּשׁוּמָא סִימָן מוּבְהָק הוּא קָמִיפַּלְגִי. מָר סָבַר: שׁוּמָא סִימָן מוּבְהָק הוּא, וּמָר סָבַר: שׁוּמָא לָאו סִימָן מוּבְהָק הוּא.
If you wish, say instead that everyone agrees that a mole is not apt to change after death, and that the identification of an item on the basis of distinguishing marks is by rabbinic law, and here it is with regard to whether a mole is a clear-cut distinguishing mark that they disagree. One Sage, Elazar ben Mahavai, holds that a mole is a clear-cut distinguishing mark that can be relied upon without hesitation even in matters of Torah law, e.g., dissolving a marriage; and one Sage, the first tanna, holds that a mole is not a clear-cut distinguishing mark. Since standard distinguishing marks are sufficient by rabbinic law, a marriage, which is in effect by Torah law, cannot be dissolved on the basis of a mole.
אָמַר רָבָא: אִם תִּמְצֵי לוֹמַר סִימָנִין לָאו דְּאוֹרָיְיתָא, הֵיכִי מַהְדְּרִינַן אֲבֵידְתָּא בְּסִימָנִין? דְּנִיחָא לֵיהּ לְמוֹצֵא אֲבֵידָה דְּנַהְדַּר בְּסִימָנִין, כִּי הֵיכִי דְּכִי אָבְדָה לֵיהּ לְדִידֵהּ נָמֵי נַהְדְּרוּ לֵיהּ בְּסִימָנִין.
Rava says: If you say that the identification of an item on the basis of distinguishing marks is not by Torah law, how do we return a lost item to the presumed owner on the basis of distinguishing marks; perhaps it will result in the return of property to one who was in fact not the owner? Rava answers: We return the lost item, as it is satisfactory to the finder of a lost item to return it on the basis of distinguishing marks, rather than exercise his right by Torah law to retain it, so that when an item is lost from him in the future, the finder will return it to him on the basis of distinguishing marks as well.
אֲמַר לֵיהּ רַב סָפְרָא לְרָבָא: וְכִי אָדָם עוֹשֶׂה טוֹבָה לְעַצְמוֹ בְּמָמוֹן שֶׁאֵינוֹ שֶׁלּוֹ?
Rav Safra said to Rava: But can a person perform an act that results in benefit for himself with property that is not his? The lost item belongs not to the finder but to the one who lost it. How can the finder waive the right of the true owner to the lost item so that he may recover his own lost item in the future?
אֶלָּא נִיחָא לֵיהּ לְבַעַל אֲבֵידָה לְמֵיהַב סִימָנִין וּלְמִשְׁקְלֵיהּ. מִידָּע יָדַע דְּעֵדִים לֵית לֵיהּ, וּמֵימָר אָמַר: כּוּלֵּי עָלְמָא לָא יָדְעִי סִימָנִין מוּבְהָקִים דִּידַהּ, וַאֲנָא יָהֵיבְנָא סִימָנִין מוּבְהָקִים דִּידַהּ וְשָׁקֵלְנָא לַהּ.
Rather, we return the lost item, as it is satisfactory to the owner of the lost item to be able to provide a description using distinguishing marks and on that basis take possession of the item. He knows that he has no witnesses to testify to his ownership, and he says: No one else knows the clear-cut distinguishing marks that are on the item. And I will provide a description using the clear-cut distinguishing marks, and based on that information I will take possession of the item. Each owner gives his tacit agreement to the return of lost items on the basis of distinguishing marks, based on the belief that he is best able to identify them.
אֶלָּא הָא דִּתְנַן, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אֶחָד הַלֹּוֶה מִשְּׁלֹשָׁה – יַחְזִיר לַלֹּוֶה, שְׁלֹשָׁה שֶׁלָּווּ מִן הָאֶחָד – יַחְזִיר לַמַּלְוֶה. נִיחָא לֵיהּ לְלֹוֶה לְאַהְדּוֹרֵי לֵיהּ לְמַלְוֶה?
The Gemara asks: But there is that which we learned in a mishna (20a), that Rabban Shimon ben Gamliel says: If one found three promissory notes relating to the loan of one debtor who borrowed money from three creditors, he must return the documents to the debtor. If one found three promissory notes relating to the loans of three debtors who borrowed money from one creditor, he must return the documents to the creditor. If one returns lost items on the basis of distinguishing marks due to the tacit agreement of the owners, is it satisfactory to the debtor to have the documents returned to the creditor, as doing so would enable the creditor to collect payment of the loan?
אֲמַר לֵיהּ: הָתָם סְבָרָא הוּא, אֶחָד הַלֹּוֶה מִשְּׁלֹשָׁה יַחְזִיר לַלֹּוֶה – דְּגַבֵּי לֹוֶה שְׁכִיחִי, גַּבֵּי מַלְוֶה לָא שְׁכִיחִי. שְׁמַע מִינַּהּ מִלֹּוֶה נְפוּל. שְׁלֹשָׁה שֶׁלָּווּ מֵאֶחָד יַחְזִיר לַמַּלְוֶה – דְּגַבֵּי מַלְוֶה שְׁכִיחִי, גַּבֵּי לֹוֶה לָא שְׁכִיחִי.
Rava said to Rav Safra: There, the obligation to return the promissory notes to the creditor is not on the basis of distinguishing marks; rather, it is based on logical reasoning. If one found three promissory notes relating to the loan of one debtor who borrowed money from three creditors, he shall return the documents to the debtor, because a group of several documents indicating that one debtor borrowed money from several creditors is typically found with the debtor and is not typically found with a creditor, as the only element common to all the documents is the debtor. Conclude from it that the group of documents fell from the debtor while they were in his possession. If one found three promissory notes relating to the loans of three debtors who borrowed money from one creditor, he shall return the documents to the creditor, because a group of several documents indicating that multiple debtors borrowed money from a single creditor is typically found with the creditor and is not typically found with a debtor, as the only element common to all the documents is the creditor.
