Bava Metzia 12a (יב.) — the Talmud in English

A courtyard has acquired the status of a hand,

that is, although we derive the law that a courtyard acquires an item for a person from the principle that a person’s courtyard is like his hand, nevertheless

it is not inferior to agency.

It also possesses the advantage of agency. For even had we not learned from the verses above [11b] that a courtyard acquires an item for a person, we would have known this through reasoning, since the courtyard is a person’s agent. [The verse comes only to include minors, who do not have the legal status of agents, teaching that they nevertheless have the status of a courtyard on the basis of the principle of a hand.] The advantage of agency in the case of a courtyard is that the owner need not stand beside his courtyard, just as he need not stand beside his agent who receives a gift on his behalf.

Therefore,

with regard to a bill of divorce, which is a disadvantage for her,

meaning that the woman does not want the bill of divorce, the courtyard cannot become an agent for the woman for the purpose of receiving the bill of divorce, since

one may not act to a person’s disadvantage except in his presence.

A person cannot be another’s agent, without his knowledge, for something that is to his disadvantage. And the entire law of a courtyard with regard to a bill of divorce applies only by virtue of the principle of a hand: Just as she can be divorced through her hand against her will, so too she can be divorced through her courtyard against her will. Therefore, Ulla maintains that the woman must be standing beside her courtyard, for only then does the courtyard have the status of a hand, which resembles a person’s hand, being near him.

But with regard to a gift, which is to his benefit,

for the person receiving the gift,

one may acquire an item for a person even in his absence,

and the courtyard becomes the agent of the gift’s recipient, as it is self-evident that he would be pleased for the courtyard to be his agent. Therefore, even though he is not standing beside his courtyard, the courtyard acquires the gift for him by virtue of agency. Just as the principal need not stand beside the agent, so too the owner need not stand beside his courtyard.

Therefore, in the incident involving Rabban Gamliel, which concerned a gift, Rabbi Yehoshua and Rabbi Akiva did not need to stand beside their courtyards. [And this was so even though the courtyard was not guarded for them.]

However, with regard to a lost item, Ulla said that one must be standing beside his field when the courtyard is not guarded.

The reason is that for agency there must be at least either the awareness of the agent or the awareness of the principal, whereas in the case of a lost item there is neither the awareness of a principal nor that of an agent. Therefore, one must be standing beside his field, in which case the courtyard functions by virtue of the principle of a hand, or the courtyard must be guarded.

The body of the matter:

We learned in our Mishna:

“He saw them running after the lost item, etc.”

Rabbi Yirmeya said that Rabbi Yoḥanan said: And this is when he runs after them and reaches them.

Rabbi Yirmeya raised a question: What is the law in the case of a gift?

Rabbi Abba bar Kahana received the following answer from him: Even though he runs after them and does not reach them.

Rava raised a question: If one threw his wallet,

a person who threw his wallet and declared it ownerless, and the wallet entered

through this entrance

of so-and-so’s house

and exited through another entrance,

what is the law?

Did the homeowner acquire it or not?

The sides of the question are as follows: Does

air that is not destined to come to rest,

an object located in the airspace of a house but not destined to come to rest inside the house,

have the status of an object at rest,

meaning that it is considered as though it were resting inside the house, and consequently the homeowner acquired the object,

or not?

Is it not considered as though it had been placed inside the house, since it is destined to leave it, and the homeowner therefore did not acquire it?

Rav Pappa said to Rava,

and some say

that it was

Rav Adda bar Matana

who said

to Rava,

and some say

that it was

Ravina

who said

to Rava: Is this not the case of our Mishna,

meaning, is this case not analogous to the case in our Mishna?

For we learned there:

“He saw them running after the lost item.”

And Rabbi Yirmeya said that Rabbi Yoḥanan said: And this is when he runs after them and reaches them.

And Rabbi Yirmeya raised a question: What is the law in the case of a gift?

And Rabbi Abba bar Kahana received the following answer from him: In the case of a gift, even though he runs after them and does not reach them.

Is it not evident from this that although the deer is not destined to come to rest inside the field, it is nevertheless considered as though it had been placed inside the field, and the owner of the field acquired it?

He said to him,

Rava:

Are you speaking of something rolling?!

In the case of the deer, it is not running through the air; rather, it is rolling along the ground, and

something rolling is different, as it has the status of an object at rest.

Something rolling on the ground is certainly considered to be at rest, even though it is not destined to come to rest there. But my question concerns something located only in the air: Is it considered to be at rest there or not?

Mishna:

It was explained above that a person acquires a lost item on his own—when he takes hold of it with his hand—or through his domain, if it enters his guarded domain. Our Mishna teaches that a person also acquires the lost items of members of his household.

The lost item of his minor son or daughter

the minors,

and likewise

the lost item of his Canaanite slave or maidservant ,

and

the lost item of his wife -

These belong to him.

But

the lost item of his adult son or daughter

, the lost item of his Hebrew slave or maidservant

and

the lost item of his wife whom he divorced, even though he has not yet given her the payment of her ketuba —

these belong to them.

Gemara:

We learned: “The lost item of his minor son or daughter: These belong to him.” At face value, this refers to genuine minors, who do not have the capacity to acquire property by Torah law. And this is so even if they do not eat at his table.

An explanation is required: Why does the father acquire their lost items?

Shmuel said: Why did they say that a minor’s lost item belongs to his father?

Because when he finds it, he hurries with it to his father and does not delay handing it over to him.

Therefore, when he lifted it, he lifted it for the sake of his father.

The Gemara infers from Shmuel’s words:

Does this mean that Shmuel maintains—

that a minor does not have the capacity to acquire for himself by Torah law?

For if he acquired property by Torah law, Shmuel’s reason would not suffice to enable his father to acquire his lost item.

And

this is difficult:

for

it

was taught

in a beraita:

“One who hires a laborer

to work in his field as a day laborer

, his son may glean after him.”

That is, he has the status of a poor person, and his son is permitted to glean after him the leket that falls from his hand.

But if he received the field as a tenant farmer,

for one-half, one-third, or one-quarter,

he has the status of the owner of this field, and

his son may not glean after him.

This is because what the son gleans belongs to his father, and the father is not entitled to take from the leket.

Rabbi Yosei says: In either case, his son and his wife may glean after him.”

The reason for this will be explained below.

And Shmuel said—

the halakha is in accordance with Rabbi Yosei.

And we raised the following question: What is Rabbi Yosei’s reason?

Granted, if you say that a minor has the capacity to acquire for himself,

it is understandable why his son is permitted to glean after him.

Because

when he gleans, he gleans for himself,

and he himself is poor and is permitted to take leket.

And his father acquires from him

afterward.

But if you say that a minor does not have the capacity to acquire for himself,

and his hand is like his father’s hand, then

when he gleans, he gleans for his father,

and

his father is wealthy ,

so

why do his wife

and his son glean after him?

Rather, Rabbi Yosei certainly maintains that a minor has the capacity to acquire for himself, and Shmuel ruled in accordance with him—not as we inferred from his words above.

And we answer:

Shmuel,

who said above, “Why did they say that a minor’s lost item belongs to his father? ...”

, was stating the reason of the tanna of our Mishna; he himself does not hold this view,

that a minor’s lost item belongs to his father. Rather, he maintains the view of the aforementioned Rabbi Yosei.

And

we still ask: Does

Rabbi Yosei maintain that “a minor has the capacity to acquire by Torah law ”?

But didn’t we learn

in tractate Gittin:

“The lost item of a deaf-mute, an imbecile, or a minor entails the prohibition of theft for the sake of maintaining peaceful relations.

Rabbi Yosei says:

it is forbidden to take them not only because of the ways of peace; rather, there is

complete theft in doing so.

And Rav Hisda said,

the intent of Rabbi Yosei is not to say that it is

complete theft

by Torah law; rather, it is theft

by rabbinic decree

from the Sages], because of the ways of peace. But the

practical difference

between him and the first tanna is

that it can be taken from him through the courts.

According to the first tanna, they were not as stringent with their enactment as they are with complete theft; therefore, if another seized it from their hands, it is not taken away from him in beit din.

But according to Rabbi Yosei, they were as stringent with their enactment as they are with complete theft, and it is taken away from the one who seized it.

In any event, it is clear from Rabbi Yosei’s words that a minor has no acquisition under Torah law, but only by rabbinic enactment.

If so, why should his son glean after him? Since under Torah law he has no acquisition for himself, it follows that his father is stealing from the poor.

Rather, Abaye said:

The reason Rabbi Yosei permitted the son to glean after his father is not because he has an acquisition for himself under Torah law, but because

they treated it as though gleaners had already passed through it,

like a field that had been gleaned repeatedly, with nothing remaining in it for the poor.

For the poor themselves dismiss it from their minds,

and despair of the gleanings remaining in the field.

Here too, the poor despaired of the gleanings, for

they reasoned: -

The son of this one will certainly glean it.

[Certainly the laborer’s sons will glean after him.]

After the poor have despaired, everyone is permitted to acquire the gleanings.

Rav Adda bar Mattana said to Abaye:

How could they permit him to let his sons glean after him and rely on the poor’s despair?

Is it permitted for a person to unleash a lion in his field so that the poor will see it and flee?!