Talmud - Bava Metzia 22a בבא מציעא כ״ב א׳

and likewise, in the case of the Jordan River or another river that took an item from this person and gave it to that person, in all those cases, that which the person took, he took, and that which the person gave, he gave. Likewise, that which the river took, it took, and that which the river gave, it gave. The person who received the item need not return it.

The Gemara asks: Granted in the cases of the robber and the Jordan River, one could say that the owner sees them take the item and despairs of its recovery; but in the case of the thief, who takes the item surreptitiously, does the owner see him take the item and would that lead him to despair? The Gemara explains: Rav Pappa interpreted the term thief in the baraita to be referring to armed bandits [listim]; therefore, the owner is aware that the item was taken and he despairs of its recovery. The Gemara asks: If so, this is the same as a robber, why mention two identical cases? The Gemara answers: The baraita mentioned two types of robbers; in both cases the owner was aware that his item was taken.

The Gemara suggests: Come and hear a proof from a baraita: If a river swept away one’s beams, one’s wood, or one’s stones and placed them into the field of another, these items belong to the owner of the field due to the fact that the respective owners despaired of their recovery. The Gemara infers from the baraita: The reason they belong to the finder is that the owners despaired; but in an unspecified case, where it is not definitively known that the owners despaired, they do not belong to the finder. Apparently, despair that is not conscious is not considered despair. The Gemara rejects the proof: With what are we dealing here? It is a case where the owners are capable of rescuing the beams, wood, or stones; therefore, their decision not to rescue them is a clear indication of despair.

The Gemara asks: If so, say the latter clause of the same baraita: If the owners were pursuing the items, the finder is obligated to return them. If it is a case where the owners are capable of rescuing the items, why did the baraita specifically cite a case where the owners were pursuing the items? Even if they were not pursuing the lost items, the items also remain in their ownership, as they did not despair of their recovery. The Gemara answers: With what are we dealing here? It is a case where the owners are capable of rescuing the items with difficulty. In that case, if the owners pursue the items, it indicates that they did not despair of their recovery, but if the owners do not pursue the items, it indicates that they despaired of their recovery.

The Gemara suggests: Come and hear a proof from a baraita (Tosefta, Terumot 1:5): When did the Sages say that in the case where one separates teruma without the owner’s consent, his teruma is considered teruma? It is in a case where there was someone who entered another’s field and gathered produce from it and separated teruma without the owner’s permission. If the owner is concerned about his actions and views it as robbery, his teruma is not teruma, but if he is not concerned, his teruma is teruma.

The baraita continues: And from where would he know whether the owner is concerned about his actions and views it as robbery or not? If the owner came and found him separating teruma and said to him: You should have gone to take the produce of better quality and separate teruma from that, then if produce of better quality than the produce he had separated is found, his teruma is considered teruma, since the owner is assumed to have been sincere and pleased that the other has separated teruma from his produce. But if not, his teruma is not teruma, as it may be assumed that the owner was angry at him and was speaking sarcastically. The baraita adds: If the owners were gathering and adding to the teruma he had separated, indicating that they agree to his act of separation, either way, whether or not better-quality produce was found, his teruma is considered teruma.

The Gemara questions the ruling of the baraita: But why is that the halakha, that if produce of better quality than the produce he had separated is found his teruma is teruma? At the time that he separated the teruma, he did not know that the owner would ultimately agree. The baraita states that the teruma is teruma from the moment he separated it, despite the fact that it was only later that he learned that the owner agreed. Apparently, in the case of despair as well, despair that is not conscious is considered despair, contrary to the opinion of Abaye. Rava interpreted the matter in accordance with the opinion of Abaye: This is a case where the owner designated him as an agent.

So too, it is reasonable, as if it enters your mind that the owner did not designate him as an agent, would his teruma be teruma? But doesn’t the Merciful One state: “So you also shall set apart a gift unto the Lord of all your tithes” (Numbers 18:28)? Once the verse states “you,” the addition of the word “also” in the term “you also” serves to include an agent. Therefore, an agent separating teruma has the same halakhot as an owner separating teruma. Just as when you, the owner, separate teruma, it is with your knowledge, so too when your agent separates teruma, it must be with your knowledge. Evidently, in any event, one needs to be appointed as an agent to be capable of separating teruma for another.

Rather, with what are we dealing here? It is a case where the owner designated him as an agent and said to him: Go and separate teruma, but he did not say to him: Separate teruma from these specific crops. And when the owner’s intent is unspecified, and it is unclear which of his crops are meant to be separated when the agent separates teruma, it is from the crops of intermediate quality that he separates teruma. And in this case, the agent went and separated teruma from higher-quality produce, and the owner of the field came and found him and said to him: You should have gone to take the produce of better quality and separate teruma from that. If produce of better quality than the produce he had separated is found, his teruma is considered teruma. But if not, his teruma is not teruma.

The Gemara digresses with a related incident: Ameimar, Mar Zutra, and Rav Ashi happened to come to the orchard [levustana] of Mari bar Isak. His sharecropper came and placed dates and pomegranates before them. Ameimar and Rav Ashi ate the fruit, but Mar Zutra did not eat the fruit due to the concern that the sharecropper had provided them with the fruit without the approval of the owner of the field. Meanwhile, Mari bar Isak came and found them eating his fruit and said to his sharecropper: Why didn’t you bring the Sages fruit from those higher-quality fruits?

Ameimar and Rav Ashi said to Mar Zutra: Now why is the Master not eating the fruit? But isn’t it taught in a baraita: In a case where the owner of the field came and found him and said to him: You should have gone to take the produce of better quality and separate teruma from that; if produce of better quality than the produce he had separated is found, his teruma is considered teruma. Here too, it is clear that Mari bar Isak approved of the actions of his sharecropper. Mar Zutra said to them that this is what Rava said: The Sages said that the statement: You should have gone to take the produce of better quality and separate teruma, indicates consent of the owner only with regard to the matter of teruma, due to the fact that it is a mitzva and the owner is amenable to having the mitzva fulfilled. But here, in this incident, it is due to shame that he said this: Why did you not bring these Sages fruit from those higher-quality fruits? He did not really want to give them the fruit.

The Gemara suggests: Come and hear another proof from a baraita with regard to despair that is not conscious. It is written: “And if any part of their carcass falls upon any sowing seed that is to be sown, it is ritually pure. But when water is placed upon the seed, and any part of their carcass falls thereon, it is ritually impure unto you” (Leviticus 11:37–38). Produce becomes susceptible to contracting ritual impurity only after coming into contact with one of seven liquids: Wine, honey, oil, milk, dew, blood, and water. It is taught in the baraita: If the dew is still upon the produce and has not yet dried, and if the owner was glad that the dew moistened the produce and kept it fresh, that produce falls into the category of: “But when water is placed upon the seed,” and the produce is susceptible to contracting ritual impurity. If the produce had dried when the owner found it, then even though he was glad that the dew had moistened the produce,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaMetzia 22a explores lost property law, examining when despair of recovery applies to items taken by robbers, bandits, or swept away by rivers.