Bava Metzia 10b (י:) — the Talmud in English

Rav Pappa said:

This is why the poor man did not acquire the pe'a within four cubits of him, because

when the Sages instituted for him the acquisition of four cubits

the Sages instituted the acquisition of four cubits only

elsewhere

in the public domain, or at the sides of the public domain, or in an alleyway, which are domains belonging to everyone. But

in the field belonging to the property owner

in a field belonging to a particular person, such as this field in which the poor man gathered pe'a,

the Sages did not institute it for him

there the Sages did not institute the acquisition of four cubits.

Rav Pappa further explains:

And although the Merciful One granted him rights in it

for the Torah granted the poor permission to enter anyone’s field in order to gather pe'a, and if so, it is logical that the acquisition of four cubits should apply there as well?

When the Merciful One granted him rights,

specifically

to walk in it and gather pe'a.

The Torah granted the poor man only the right to walk through the field and gather pe'a. But

to make it his courtyard,

so that he would have rights in it precisely as though it were his courtyard,

the Merciful One did not grant him rights,

and therefore the acquisition of four cubits does not apply there.

The Gemara continues to explain:

Rava said: Rav Ya'akov bar Idi raised an objection from Nezikin!

Rav Ya'akov bar Idi challenged the law of four cubits from our Mishna, which appears in the order of Nezikin:

If one saw a lost item and fell upon it, and another came

and took possession of it, the one who took possession of it acquired it.

And if you say

that

a person’s four cubits acquire an item for him everywhere,

why did he not acquire the lost item upon which he fell?

Let his four cubits acquire it for him!

After all, even without his falling upon it, it was located within his four cubits?

And we answer:

Here, with what are we dealing? With a case where he did not say: “I acquire it.”

He did not explicitly state that he wished to acquire the lost item through the acquisition of four cubits.

And we challenge this:

And if the Sages instituted

the acquisition of four cubits,

when he did not say

explicitly that he wished to acquire it through this acquisition,

what of it?

And we answer:

Since he fell upon it, he revealed his intention that he prefers to acquire it through falling; he does not prefer to acquire it through four cubits.

Therefore, he does not acquire it through four cubits.

Rav Sheshet said:

This is why he does not acquire the lost item upon which he fell through four cubits: the lost item is located in the public domain. And

when the Sages instituted

the acquisition of four cubits, where did the Sages institute it? Specifically

in an alleyway, where the public is not pressing,

where there are not many people. But

in the public domain, where the public is pressing, the Sages did not institute

the acquisition of four cubits, because a person does not have four cubits there that are designated for him, as many people are standing around him.

And we challenge this:

But

Reish Lakish said: “A person’s four cubits acquire an item for him

everywhere,”

he said,

which implies even in the public domain?

And we answer:

“

Everywhere” comes to include the sides of the public domain.

Thus, even at the sides of the public domain there is an acquisition of four cubits, since there is not such a crush of people there. But in the public domain itself the Sages did not institute the acquisition of four cubits.

And Reish Lakish said in the name of Abba Kohen Bardela: A minor does not have a courtyard.

If a woman who is a minor has her husband throw a bill of divorce into her courtyard, she is not divorced through this, because a minor does not have the power of acquisition through a courtyard.

And she does not have four cubits,

if her husband throws the bill of divorce into her four cubits, she is likewise not divorced, although an adult woman would be divorced in this manner. This is because the Sages did not institute the acquisition of four cubits for a minor [which is similar to the acquisition through a courtyard, and since she does not have the acquisition through a courtyard, they did not institute four cubits for her].

And Rabbi Yoḥanan said in the name of Rabbi Yannai: She has a courtyard and she has four cubits.

The minor is divorced both through her courtyard and through her four cubits.

And we explain:

With regard to what do they disagree,

Reish Lakish and Rabbi Yoḥanan?

One

Rabbi Yoḥanan

holds: A courtyard was included because it is like her hand,

the reason that a woman is divorced through the placing of the bill of divorce in her courtyard is that a person’s courtyard is considered like his hand, meaning his domain. And the statement in the bill of divorce, “and he places it in her hand,” includes her courtyard as well.

Therefore, a minor can also be divorced through her courtyard, because

just as she has a hand

just as a minor has a “hand” with which to receive her bill of divorce and be divorced through it,

a courtyard

she likewise has

a “courtyard” through which she can be divorced.

And the other

Reish Lakish

holds: A courtyard was included because it is like agency,

for the law of acquisition through a courtyard is derived from the law of agency: the courtyard is like a person’s agent, and since agency is effective for receiving a bill of divorce, a courtyard is effective as well.

Therefore, a minor cannot be divorced through her courtyard. Since

just as she does not have agency,

just as a minor cannot be divorced through an agent, since minors are not subject to the laws of agency,

she likewise does not have a courtyard.

So too, she cannot be divorced through her courtyard.

And we challenge this:

Is there

that is, is there

anyone who says: “A courtyard was included because it is like agency”?

But it was taught in a beraita:

It is stated in the passage of Mishpatim: “If the stolen item is surely found

in his hand,

from an ox to a donkey to a sheep alive, he shall pay double.”

I know

that he is liable to pay double

only

when he stole it with

his hand

itself. If the animal entered

his roof, courtyard, or enclosure

[a wood shed], and he locked the door before it in order to steal it,

from where

do we know that he becomes liable for double payment for his theft?

The verse states: “

If it is surely found”

We derive from the repetition of the language

“in every case,”

that even in his roof and courtyard he is considered a thief and becomes liable for double payment.

And if it enters your mind that a courtyard was included because it is like agency, then we have found an agent for a transgression,

since the courtyard becomes the thief’s agent for the performance of a transgression.

And we have an established principle: There is no agent for a transgression,

for the law of agency was not stated in this case, such that the sender would become liable for the agent’s transgressive act as though he himself had performed it. How, then, does the thief become liable for theft carried out by his courtyard? And we answer:

Ravina said:

Actually, a courtyard was included because it is like agency, and nevertheless it is possible for a courtyard to be an agent for a transgression. For

where do we say

when do we say

that there is no agent for a transgression

only

where the agent is subject to liability

where the agent too is warned not to perform the transgression; therefore, the sender cannot be held liable for the agent’s transgression, since the agent should not have obeyed the sender and performed the transgression, for “when the words of the Master and the words of the student conflict, whose words does one heed?”

But in the case of a courtyard, which is not subject to liability, its sender becomes liable.

The sender becomes liable even though this involves a transgression. Therefore, the thief becomes liable for his courtyard, despite the fact that a courtyard was included because it is like agency.

And we challenge this:

If so,

that there is an agent for a transgression when the agent is not subject to liability, then

one who says to a woman or a slave: “Go steal for me!”—as they are not subject to liability,

since a woman and a slave are exempt from paying for their thefts—

so too

should we say

that their sender becomes liable,

meaning that the sender should become liable for their theft?

And we answer:

You said: A woman and a slave are subject to liability.

In principle, they are obligated to pay for what they stole.

But at present they have nothing with which to pay,

it is only impossible to obligate them in practice because they have nothing with which to pay, since the property of the woman and the slave belongs to the husband and the master.

And when it becomes possible for them to pay, they will indeed

become liable:

As we learned: If the woman is divorced

from her husband, or

the slave is freed, they are obligated to pay.

Therefore, they cannot be agents for theft, because there is no agent for a transgression.

Rav Sama said:

The reason that the thief becomes liable even through his courtyard, despite the fact that a courtyard was included because it is like agency and there is no agent for a transgression, is that

where do we say

when do we say

there is no agent for a transgression,

only

where, if he wishes, he performs the act, and if he wishes, he does not perform it,

where the agent has free choice and can refrain from carrying out the agency.

But a courtyard, which he places something in against its will,

since the courtyard cannot object to the owners’ using it,

its

sender becomes liable.

The owners who send the courtyard become liable for the courtyard’s act, even though it involves a transgression.

And we explain:

What is the practical difference between them?

What halakhic difference is there between Ravina’s two explanations and that of Rav Safra?

There is a difference between them in the case of a koen who says to an Israelite: “Go and betroth a divorced woman for me!”

She is forbidden to him by a prohibition, which includes not only intercourse with her but also the very act of betrothal. The Israelite, however, is not forbidden to marry a divorced woman.

Alternatively: A man who says to a woman, “Shave for me”

a minor!

Shave the corners of the minor’s head as my agent, since one who shaves the corners of another’s head is also included in the prohibition of “You shall not round the corners of your heads.” A woman, however, is not entirely included in this prohibition.

According to that formulation which says,

according to Rav Safra, who says:

Whenever, if he wishes, he can perform the act, and if he wishes, he need not perform it,

the sender is not liable, since the matter depends only on whether the agent is able to refuse to carry out the agency or not. If so,

here too,

in the case of the koen and the divorced woman, and in the case of rounding the corners,

if he wishes, he can perform the act, and if he wishes, he need not perform it.

The agent can refuse to carry out the agency. Therefore, the principle that there is no agency for a transgression applies here,

and the sender is not liable.

The sender is not liable for the agent’s act.

And according to that formulation which you said

according to Ravina, who says:

Whenever the agent is not one who is subject to liability, the sender is liable,

for if the agent is not warned against this prohibition, the principle that there is no agency for a transgression does not apply; rather,

the sender is liable,

the sender is liable for the agent’s act. If so,

these cases too,

the Israelite and the woman are not forbidden to perform this act of agency. Therefore, the rule that there is no agency for a transgression does not apply here; rather,

the sender is liable

the koen and the man are indeed liable for the acts of their agents.

And we challenge this:

Is there anyone who says

that there is one who maintains

that a courtyard was not included on the basis of her hand?

But it was taught in a beraita:

It is stated in the passage concerning a woman’s divorce: “And he shall write for her a document of severance and place it in her

hand.”

I can derive from this only that she is divorced

when he places the bill of divorce in her

hand.

If he placed it inside her roof, courtyard, or enclosure, from where

do we know

that she is divorced?

The verse states: “And he shall

place.”

Since the verse did not say, “And he shall place it in her hand,” we expound the word “and he shall place” independently, to teach

in any case!

That is, any placement in her domain, such as inside her roof or courtyard, is sufficient with regard to a bill of divorce.

It follows that a courtyard functions on the basis of the legal category of a hand. For if a courtyard functioned on the basis of agency, we would not need a special derivation to teach that a woman is divorced through her courtyard, since we had already learned that she can be divorced through her agent!

And we answer:

With regard to a bill of divorce,

indeed,

everyone agrees that a courtyard was included on the basis of her hand,

as is demonstrated by the derivation stated in the passage concerning divorce, and a minor can indeed be divorced through her courtyard.

They dispute

Rish Lakish and Rabbi Yohanan not only

with regard to a lost object,

whether a minor has a courtyard through which she can acquire a lost object.

Master,

Rabbi Yohanan maintains: