Talmud - Bava Metzia 31a בבא מציעא ל״א א׳

on a main thoroughfare [be’isratiyya], or a cow running through the vineyards, that is lost property. If one found a cloak alongside a fence, an ax alongside a fence, or a cow grazing among the vineyards, that is not lost property. If one sees these items for three consecutive days, that is lost property. If one saw water that is flowing and coming to inundate another’s field, he must establish a barrier before the water in order to preserve the field.

Rava says that the verse: “And so shall you do with every lost item of your brother” (Deuteronomy 22:3), serves to include an obligation to protect your brother from the loss of his land. Rav Ḥananya said to Rava: There is a baraita that is taught that supports your opinion. If one saw water that is flowing and coming to inundate another’s field, he must establish a barrier before the water in order to preserve the field.

Rava said to Rav Ḥananya: If you are attempting to bring support for my ruling due to that baraita, do not support my ruling. With what are we dealing here in the baraita? We are dealing with a field in which there are sheaves of grain on the land. The tanna of the baraita is referring to preservation of the sheaves, not of the land itself. The Gemara asks: If the baraita is referring to a field in which there are sheaves of grain, what is the purpose of stating it? Isn’t it obvious that one is obligated to preserve the sheaves as he would any other item? No, it is necessary to state the halakha only in a case where there are sheaves that need the land in order to dry. Lest you say: Since they still need the land, their legal status is like that of the land itself and he is not obligated to return them, the baraita teaches us that the sheaves are independent of the land and must be preserved.

§ The mishna teaches: If one found a donkey or a cow grazing on the path, that is not deemed lost property. The Gemara asks: This itself is difficult. On the one hand you said: If one found a donkey or a cow grazing on the path, that is not lost property, from which it may be inferred that only if it is grazing on the path it is not lost property, but if it was running on the path or grazing among the vineyards, it is a lost item. On the other hand, say the latter clause of the mishna: If one found a donkey with its accoutrements overturned, or a cow that ran through the vineyards, that is lost property. From this wording it may be inferred that only if the animal is running through the vineyards is it lost property, but if it is running on the path or grazing among the vineyards, it is not lost property.

Abaye said that the tanna employs the style of: Its counterpart tells about it (see Job 36:33), and the mishna distinguishes between grazing and running. The tanna taught a case of grazing on the path, where the animal is not considered lost property, and the same is true of a case where the animal is grazing among the vineyards. And the tanna taught a case of running through the vineyards, where the animal is considered lost property, and the same is true of a case where the animal is running on the path.

Rava said to him: If the tanna employs the style of: Its counterpart tells about it, let him teach the lenient case and all the more so it would apply to the stringent case. The Gemara elaborates: Let the tanna teach that when the animal is running on the path it is lost property and all the more so it is lost property when it is running through the vineyards. And let the tanna teach that when the animal is grazing among the vineyards it is not lost property, and all the more so it is not lost property when it is grazing on the path.

Rather, Rava said: The apparent contradiction between the inference from the first clause with regard to running on the path and the inference from the latter clause with regard to running on the path is not difficult. This inference from the first clause that an animal running on the path is lost property is referring to a case where its face is directed toward the field, and it is running away from the city. That inference from the latter clause that an animal running on the path is not lost property is referring to a case where its face is directed toward the city.

Rava continues: The apparent contradiction between the inference from the first clause with regard to grazing among the vineyards and the inference from the latter clause with regard to grazing among the vineyards is also not difficult. Here, the inference from the latter clause that an animal grazing among the vineyards is not lost property is with regard to loss of the animal itself. There, the inference from the first clause that the halakhot of lost property apply in the case of an animal grazing among the vineyards is referring to loss in the sense of damage to the land.

The Gemara elaborates: When the tanna teaches that in the case of an animal grazing on the path, the halakhot of lost property do not apply, from which it is inferred: But in the case of an animal grazing among the vineyards the halakhot of lost property do apply, it is referring to preventing loss in the sense of damage to the land caused by the animal. And when the tanna teaches that in the case of an animal running among the vineyards the halakhot of lost property do apply, from which it is inferred: But in the case of an animal grazing among the vineyards the halakhot of lost property do not apply, it is referring to loss of the animal itself, as an animal running among the vineyards is typically wounded with lacerations from the vines, but an animal grazing among the vineyards is not typically wounded.

The Gemara asks: And with regard to the inference from the latter clause that in the case of an animal grazing among the vineyards the halakhot of lost property do not apply, although it is not wounded, why not derive that the halakhot of lost property do apply due to loss in the sense of damage to the land caused by the animal? The Gemara answers: It is stated with regard to the land of a gentile, which one is not obligated to return or preserve.

The Gemara questions this explanation: But why not derive that one is obligated to return it due to loss of the animal itself, as perhaps the gentiles will kill it? The Gemara answers: It is stated with regard to a place where they forewarn the owner and only then kill the animal. The Gemara challenges: And perhaps they already forewarned the owner with regard to the animal. The Gemara explains: If they already forewarned the owner with regard to the animal and the owner did not heed the warning, this is certainly a case of deliberate loss, where there is no obligation to return it.

§ The mishna teaches: In a case where one returned the lost animal and it fled, and he again returned it and it fled, even if this scenario repeats itself four or five times, he is obligated to return it each time, as it is stated: “You shall not see your brother’s ox or his sheep wandering and disregard them; you shall return them [hashev teshivem] to your brother” (Deuteronomy 22:1). The Gemara understands that from the use of the compound form of the verb, “hashev teshivem,” the mishna derives that one must return the lost animal multiple times if it flees. The Gemara asks: A certain one of the Sages said to Rava: Say that from “hashev” one derives the obligation to return the animal once, and from “teshivem” one derives the obligation to return the animal twice, and beyond that there is no obligation.

Rava said to him: “Hashev” indicates that there is an absolute obligation to return the animal, even if it flees one hundred times. “Teshivem” teaches another matter: I have derived only that one may return the animal to the owner’s house. From where is the halakha derived that one may return the animal to his garden or to his building in ruins? The verse states: “Teshivem,” to teach that in any case, wherever one returns the lost animal, he fulfills the mitzva of returning it. The Gemara asks: What are the circumstances? If those areas are protected, it is obvious that one who returns the animal there fulfills his obligation. If they are not protected, why is he considered to have returned the lost animal? It will just flee again.

The Gemara answers: Actually, it is a case where the property is protected. And this teaches us that we do not require the owner’s knowledge in order to return the lost item to him. And this ruling is in accordance with the opinion of Rabbi Elazar, who says: Every instance involving return of an item to its owner, e.g., by a bailee or by a thief, requires the owner’s knowledge that it is being returned, except for the return of a lost item, as the Torah amplified the halakha to permit multiple forms of return by means of the compound verb “hashev teshivem,” among them return without the owner’s knowledge.

The Gemara cites additional mitzvot where the Torah employs the compound verb form, and the Sages derived additional halakhot from the phrasing of the verse. With regard to the mitzva of dispatch of the mother bird from the nest before taking its eggs or fledglings, the verse states: “You shall dispatch [shalle’aḥ teshallaḥ] the mother, but the young take for yourself; that it may be well with you, and that you may prolong your days” (Deuteronomy 22:7). The Gemara understands that from the use of the compound form of the verb, “shalle’aḥ teshallaḥ,” the Sages derive that one must dispatch the mother bird multiple times if it returns. The Gemara asks: Say that from “shalle’aḥ” one derives the obligation to dispatch the mother once, and from “teshallaḥ” one derives the obligation to dispatch the mother twice, and beyond that there is no obligation.

Rava said to him: “Shalle’aḥ” indicates that one must dispatch the mother even one hundred times. “Teshallaḥ” teaches another matter: I have derived only the obligation to dispatch the mother bird in a case where one takes the eggs or the fledglings and wants to take the mother bird for a non-compulsory matter, e.g., to eat it. In a case where one takes the eggs or the fledglings and needs the mother bird for a matter involving a mitzva, e.g., the purification of a leper, from where is the halakha that he must dispatch the mother derived? The verse states: “Teshallaḥ,” to teach that in any case one must dispatch the mother bird.

With regard to the mitzva of rebuke, the verse states: “You shall not hate your brother in your heart; you shall rebuke [hokhe’aḥ tokhiaḥ] your neighbor, and not bear sin because of him” (Leviticus 19:17). The Gemara understands that from the use of the compound form of the verb, “hokhe’aḥ tokhiaḥ,” the Sages derive that one must rebuke another multiple times if necessary. A certain one of the Sages said to Rava: Say that from “hokhe’aḥ” one derives the obligation to rebuke another once, and from “tokhiaḥ” one derives the obligation to rebuke another twice, and beyond that there is no obligation.

Rava said to him: “Hokhe’aḥ” indicates that one must rebuke another even one hundred times. “Tokhiaḥ” teaches another matter: I have derived only the obligation of a teacher to rebuke a student. With regard to the obligation for a student to rebuke a teacher, from where is it derived? The verse states: “Hokhe’aḥ tokhiaḥ” to teach that one is obligated to rebuke another in any case that warrants rebuke.

§ The Gemara cites additional derivations from compound verb forms. “If you see the donkey of him that hates you collapsed under its burden, you shall forgo passing him by; you shall release it [azov ta’azov] with him” (Exodus 23:5). I have derived only that one is obligated to help unload the fallen animal in a case where its owner is with it. From where is the obligation to unload it in a case where its owner is not with it derived? The verse states: “Azov ta’azov,” indicating that there is an obligation to unload it in any case.

The verse states: “You shall not see your brother’s donkey or his ox fallen by the wayside, and hide yourself from them; you shall lift them [hakem takim] with him” (Deuteronomy 22:4). I have derived only that one is obligated to help load the animal in a case where its owner is with it. From where is the obligation to load it in a case where its owner is not with it derived? The verse states: “Hakem takim,” to teach that there is an obligation to load it in any case.

The Gemara asks: And why does the Torah need to write the compound verb form to teach the obligation in the owner’s absence with regard to unloading and why does the Torah need to write the compound verb form to teach the obligation in the owner’s absence with regard to loading the animal? The Gemara answers: They are both necessary, as had the Merciful One written this halakha only with regard to unloading, I would say that one is obligated to unload the animal even when the owner is not present, due to the fact that in the failure to unload the animal there is potential suffering of animals and there is potential monetary loss, as the burden might be damaged or the animal might die. But in the case of loading, where there is no potential suffering of animals and there is no potential monetary loss, I would say no, there is no obligation to load the animal when the owner is not present.

The Gemara continues its answer: And had the Torah taught us the obligation in the owner’s absence with regard to loading, I would say that it is due to the fact that his action is rewarded with remuneration, as one is paid for loading an animal. But with regard to unloading, which is performed for free, I would say no, there is no obligation to unload the animal when the owner is not present. Due to the unique element in each, both are necessary.

The Gemara asks: And according to Rabbi Shimon, who says that even loading must be performed for free, what is there to say to explain why it was necessary to repeat the obligation with regard to unloading? The Gemara answers: According to Rabbi Shimon, it is not clearly defined which of the verses is referring to loading and which is referring to unloading. Had the Torah written one verse, it would have been interpreted to be referring to unloading and one might assume that he need not load an animal in the absence of the owner.

The Gemara asks: Why do I need the Torah to write these two mitzvot of unloading and loading, and why do I need the Torah to write the obligation to return a lost item? Write one of them, and derive the other from it, as they are all mitzvot to preserve another’s property. The Gemara answers: Both are necessary, as had the Merciful One written only these two mitzvot of unloading and loading, one would say that it is due to the fact that in those cases there is the suffering of its owner and there is the suffering of the animal itself. But in the case of a lost item, where there is the suffering of its owner but there is no suffering of the lost item, I might say no, there is no obligation to return the lost item. And had the Torah taught us only the obligation to return a lost item, one would say that is due to the fact that its owner is not with it to care for it;

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

Bava Metzia 31a explores criteria for identifying lost property versus stray animals, and the duty to prevent damage to another’s field from flooding.