Talmud - Bava Metzia 28a בבא מציעא כ״ח א׳

The Gemara asks: But there is that which we learned in that mishna (20a): If one found a roll of documents or a bundle of documents, he shall return the documents to whomever describes the roll and the bundle, which serve as distinguishing marks. Would one say that so too, if one returns lost items on the basis of distinguishing marks due to the tacit agreement of the owners, it is satisfactory to the debtor to have the documents returned to the creditor?

Rather, Rava said: Identification of an item on the basis of distinguishing marks is by Torah law, as it is written: “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. 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? Rava affirms: Conclude from it that identification of an item on the basis of distinguishing marks is by Torah law.

Rava begins his statement and says: If you say that identification of an item on the basis of distinguishing marks is by Torah law. The Gemara interjects: If you say? Didn’t he already resolve the dilemma and conclude that identification of an item on the basis of distinguishing marks is by Torah law? The Gemara answers: Rava phrased his statement conditionally due to the fact that although he holds that identification of an item on the basis of distinguishing marks is by Torah law, one could reject his conclusion and say as we explained previously (27b), that when the mishna states that the finder scrutinizes whether he is a swindler, he does so on the basis of witnesses and not on the basis of distinguishing marks.

The Gemara resumes Rava’s interrupted statement: If you say that identification of an item on the basis of distinguishing marks is by Torah law, then in a case where an item is found and two people claim it as theirs, and one describes distinguishing marks on the item and the other describes distinguishing marks on the item, the finder shall leave it in his possession and not give it to either claimant. In a case where one person describes distinguishing marks on the item and the other brings two witnesses to support his claim of ownership, the item shall be given to the claimant with witnesses. In a case where one person describes distinguishing marks on the item and the other describes distinguishing marks on the item and brings one witness to support his claim of ownership, the one witness is as one who is not there, and the finder shall leave it in his possession. The testimony of a single witness has no legal standing in this case.

In a case where one claimant to a found garment brings witnesses who testify that the garment was woven for him, and the other claimant brings witnesses who testify that the garment had fallen from him, the garment shall be given to the claimant whose witnesses testified that the garment had fallen from him, as we say that perhaps the one for whom it was woven sold the garment and it fell from another person, who is the current owner.

If one claimant provides the measure of length of a lost garment and the other provides the measure of its width, the garment shall be given to the claimant who provided the measure of its length, as one can approximate the measure of its width when its owner dons the garment and stands, but the measure of its length cannot be approximated in that manner. Therefore, it is a more clear-cut distinguishing characteristic.

If one claimant provides the measure of its length and the measure of its width and the other provides the measure of its gamma, its combined length and width, which together form the Greek letter gamma, but does not provide each measure individually, the item shall be given to the claimant who provided the measure of its length and the measure of its width separately.

If one claimant provides the measure of its length and the measure of its width and the other provides the measure of its weight, the item shall be given to the claimant who provided the measure of its weight, which, because it is more difficult to approximate, is a more clear-cut distinguishing characteristic.

Rava continues: In a case where a bill of divorce is found and it is unclear whether it had been delivered to the wife, and the husband, who reconsidered, states the distinguishing marks of the bill of divorce and claims that he did not yet give it to his wife, and the wife, who wants to be divorced, states the distinguishing marks of the bill of divorce and claims that she already received it, the document shall be given to the wife. The Gemara asks: With what distinguishing mark did she describe the bill of divorce? If we say that she described it with the measure of its height and its width, that is not a clear-cut distinguishing mark; perhaps while her husband was holding the bill of divorce, she saw it, although he had not yet given it to her. Rather, it must be that she says that there is a perforation alongside such and such letter in the document, which she could know only if the bill of divorce had been in her hand.

In a case where the husband states the distinguishing marks of the string with which the bill of divorce is bound, and she states the distinguishing marks of the string, the document shall be given to the wife. The Gemara asks: With what distinguishing mark did she describe the string? If we say that she described it by saying that the string is white or by saying that it is red, this cannot be the mark based on which she proves her ownership, as perhaps while her husband was holding the bill of divorce, she saw the string. Rather, it must be that she stated the measure of its length. As the string was wrapped around the document, she would know its length only if the bill of divorce had been in her hand.

In a case where the husband claims that the bill of divorce was not given to the wife and states that it was stored in a case, and the wife claims that she received the bill of divorce and states that it was stored in a case, the document shall be given to the husband. What is the reason? Identification of the document based on its storage cannot prove her ownership, as she knows that he places any valuable item that he has in his possession in the case.

MISHNA: And until when is one who finds a lost item obligated to proclaim his find? He is obligated to do so until the moment that the neighbors will know of its existence; this is the statement of Rabbi Meir. Rabbi Yehuda says: He is obligated to proclaim his find for three pilgrimage Festivals and for seven days after the last of the three pilgrimage Festivals, so that its owner will have time to go to his home, a trip lasting up to three days, and ascertain that he in fact lost the item, and he will return to Jerusalem, a trip lasting up to three days, and proclaim his loss for one day.

GEMARA: The mishna teaches that one must proclaim his find until his neighbors will know of its existence. A tanna taught: One must proclaim his find until the neighbors of the lost item will know of its existence. The Gemara asks: What is the meaning of the expression: Neighbors of the lost item? If we say that the reference is to neighbors of the owner of the lost item, he need not proclaim his find, as if the finder knows who lost the item, let him go and return it to him. The Gemara answers: Rather, the reference is to the neighbors of the place where the lost item was found.

§ The mishna teaches that Rabbi Yehuda says: He is obligated to proclaim his find for three pilgrimage Festivals and for seven days after the last of the three pilgrimage Festivals, so that its owner will go to his home, a trip lasting up to three days, will ascertain that he in fact lost the item, and will return to Jerusalem, a trip lasting up to three days, and proclaim his loss for one day.

Apropos Rabbi Yehuda’s calculation of three days as the duration of a pilgrim’s travel from Jerusalem to his home, the Gemara raises a contradiction from a mishna (Ta’anit 10a): On the third of the month of Marḥeshvan one starts to request rain by inserting the phrase: And grant dew and rain, in the blessing of the years, the ninth blessing of the Amida prayer. Rabban Gamliel says: One starts to request rain on the seventh of Marḥeshvan, which is fifteen days after the conclusion of the festival of Sukkot, so that the last of those who are in Eretz Yisrael on the pilgrimage to Jerusalem can reach their homes beyond the Euphrates River before the onset of rain, which would make crossing the river more hazardous. Apparently, it takes fifteen days for those who came for the pilgrimage Festivals to return home, not three days.

Rav Yosef says: This is not difficult. Here, in the mishna in tractate Ta’anit, Rabban Gamliel’s statement is referring to the duration of the journey during the First Temple period, which took fifteen days; whereas there, Rabbi Yehuda’s statement is referring to the duration of the journey during the Second Temple period, which took three days.

The Gemara explains the answer: During the First Temple period, when the Jewish people were very numerous, as it is written with regard to them: “Judea and Israel were many, as the sand that is by the sea in multitude, eating and drinking and rejoicing” (I Kings 4:20), we need that much time for them to travel from Jerusalem to the farthest reaches of Eretz Yisrael, due to the wide distribution of the large population. During the Second Temple period, when the Jewish people were not very numerous, as it is written: “The whole congregation together was forty and two thousand three hundred and sixty” (Ezra 2:64), we do not need that much time for them to travel from Jerusalem to the farthest reaches of Eretz Yisrael, due to the limited distribution of the small population.

Abaye said to Rav Yosef: But isn’t it written: “So the priests, and the Levites, and some of the people, and the singers, and the porters, and the Gibeonites, dwelt in their cities, and all Israel in their cities” (Ezra 2:70). The verse indicates that despite their limited numbers, the Jewish people dwelt in all the cities that they inhabited previously, and the distance to the far reaches of Eretz Yisrael was no shorter during the Second Temple period.

Abaye continued: And since that is the reality, the opposite is reasonable. During the First Temple period, when the Jewish people were very numerous and when everyone was structured in groups, and caravans could be found that traveled both during the day and during the night, we do not need that much time to travel from Jerusalem to the farthest reaches of Eretz Yisrael, and three days suffice. By contrast, during the Second Temple period, when the Jewish people were not very numerous and when everyone was not structured in groups, and therefore, caravans could not be found that traveled both during the day and during the night, we need that much time, i.e., fifteen days, to travel from Jerusalem to the farthest reaches of Eretz Yisrael.

Rava said: It is no different during the First Temple period and it is no different during the Second Temple period; the requisite travel time to the border was fifteen days, as the opinion of Rabban Gamliel indicates. Nevertheless, Rabbi Yehuda calculated three days of travel to the border because the Sages did not wish to trouble the finder excessively in returning a lost item by requiring him to wait an extended amount of time.

Ravina says: Learn from the calculation of Rabbi Yehuda in the mishna that when a finder proclaims his find he specifies the nature of the item, e.g., he proclaims that he found a cloak. As, if it enters your mind that the finder proclaims that he found a lost item without specifying its nature, we need to increase the period of time afforded the owner to ascertain that he lost an item, and add one day for him to examine all his vessels. Rather, learn from it that the finder proclaims that he found a cloak. The Gemara affirms: Learn from it that the finder specifies the nature of the item.

Rava said: Even if you say that the finder proclaims that he found an unspecified lost item, nevertheless, Rabbi Yehuda does not require extending the period afforded the owner, because the Sages did not wish to trouble the finder excessively in returning a lost item by requiring him to wait an extended amount of time.

The Sages taught in a baraita: On the first pilgrimage Festival after finding the lost item, the finder proclaims his find and says: This is the first pilgrimage Festival that I am proclaiming this find. On the second pilgrimage Festival after finding the lost item, the finder proclaims his find and says: This is the second pilgrimage Festival that I am proclaiming this find. On the third pilgrimage Festival, the finder proclaims his find and says his proclamation without specification of the number of the Festival.

The Gemara asks: And why does he not specify the number of the Festival? Just as he specified the previous two Festivals, let him say that it is the third pilgrimage Festival. The Gemara answers: He does not specify that it is the third pilgrimage Festival, so that one who hears him will not come to confuse it with the second pilgrimage Festival. If the finder were to proclaim that it is the third [shelishi] Festival, it is possible that the owner would mistakenly hear the word second [sheni] and believe that there is time remaining to reclaim his lost item. Since on the second Festival he mentions the number and on the third Festival he does not mention a number, there is no potential for confusion. The Gemara asks: Based on that reasoning, on the second pilgrimage Festival too, the finder should not mention the number of the Festival,

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

Bava Metzia 28a explores whether returning lost items based on identifying marks is a biblical requirement, debating its source in Deuteronomy.