Bava Metzia 21b (כא:) — the Talmud in English

It was stated:

despair without awareness,

a lost object whose owners, had they known that it was lost from them, would certainly have despaired of recovering it, but now, when the finder found it, the owners still did not know that they had lost an object. When the owners became aware of it, the find was already in the finder’s possession.

Abaye said: It is not considered despair,

and the finder does not acquire the find. If the owners come and prove that they are the owners of the lost object, he is obligated to give it to them.

And Rava said:

Even in such a case,

it is considered despair,

and the finder acquires whatever is in his possession.

The Gemara now explains the dispute between Abaye and Rava:

With regard to an item that has an identifying mark—

everyone agrees that

despair without awareness

is not considered despair. And even though we heard him despair eventually [

although we heard the owner of the lost object despair eventually, when he became aware that it had been lost from him]—

it is not considered despair.

The reason is

that when

the lost object

came into his possession,

the finder’s possession—

it came into his possession under a prohibition,

because it is an item whose owner is not expected to despair,

as when he learns

the owner of the lost object

that it fell from him,

he does not despair.

Because

he says [

the loser says to himself]:

I have an identifying mark in it [

I have an identifying mark on the lost object];

I will give the identifying mark—

and I will take it [

I will provide the identifying mark and take it] . [

The early authorities wrote that this does not mean that he took it under an actual prohibition, since he did not intend to steal it; on the contrary, he was obligated to lift it, since it had an identifying mark. Rather, it means that he took it at a time of prohibition—that is, before despair, when it was still in the owners’ possession—and it is as though he took it from their hands. Since he did not acquire it, his hand is like the owners’ hand, and he is like a bailee. Thus, the object is still in the owners’ possession, and in such a case despair is ineffective] .

But

in the case of the surge of the sea,

there are places along the seashore where it is usual for the sea to recede ten or fifteen parasangs twice a day, sweeping away whatever it encounters there—and continuing on ,

and

likewise

in the overflow of a river,

where the river rises over its banks and sweeps away whatever it encounters on its shore,

in these cases,

even though it has an identifying mark

on the lost object—

the Merciful One permitted it [

the Torah permitted it], even if it came into the finder’s possession before despair,

as we shall say later [

as will be explained in the Gemara below] .

They disagree

Abaye and Rava

with regard to an item that has no identifying mark.

Abaye said:

Despair without awareness

is not considered despair, since he did not know

the owner

that it had fallen from him,

and in fact he had not despaired!

Rava said:

In such a case

it is considered despair.

Since

for

it is the case that

when he learns

the owner

that it had fallen from him,

the lost object—he will certainly

despair,

because

he says

to himself:

There is no identifying mark in it [

I have no identifying mark on it]. Therefore, it is as though

he is despairing only now,

for it fell from him, and once he learns of it, he will no longer set his mind on recovering it . [

Mnemonic: P-M-G-Sh from M-M-K-G-T-Y like K-K-S-A-Z].

Come and hear

from our Mishna, where we learned that if one finds

scattered produce—

it belongs to him. The reason is that it has no identifying mark, and therefore the owners despair of recovering it.

And

this

when the finder found it—

the owner did not know

of the produce

that it had fallen from him,

and this is despair without awareness!?

Rather, it is evident from here that despair without awareness is considered despair!

The Gemara rejects this:

But Rav Ukva bar Ḥama said

that

here we are dealing with produce gathered from the threshing floor,

as was explained above,

for it is an instance of intentional loss .

They did not fall from him; rather, he knowingly left them there, and they are ownerless .

Come and hear:

from our Mishna, in which we learned that if one found

scattered coins—

they belong to him.

And

why? Did he know that they had fallen from him?

The Gemara rejects this:

There too,

this is not a case of despair without knowledge, but

in accordance with the statement of Rabbi Yitzḥak, who said

below, regarding another matter:

“A person is accustomed

to regularly

feel inside his pouch

at every moment.”

When a person carries valuables in his pouch, such as coins, he is accustomed to feel inside it every moment, to check that the coins have not fallen out. And

here too,

the same reasoning applies to our matter:

a person is accustomed to feel inside his pouch at every moment,

and therefore the owner certainly knew that the coins had fallen from him before the finder found them, so this is not despair without knowledge.

Come and hear

from what we learned in our Mishna:

round cakes of dried figs and baker’s loaves—

they belong to him.

And

why? Did he not know that they had fallen from him?

The Gemara rejects this:

There too, since they are heavy,

as round cakes of dried figs and loaves are heavy objects,

he certainly knew about them

their owner knew immediately when they had fallen from him, since he felt that the burden he was carrying had become lighter. If so, this is not despair without knowledge.

Come and hear

from what we learned in our Mishna:

and bundles of purple wool—

they belong to him.

And why? Did he not know that they had fallen from him?

The Gemara rejects this:

There too, since they are valuable,

as bundles of purple wool are valuable, a person carrying them is accustomed to

continually feel inside them

at every moment, to make certain that they have not fallen,

and as

Rabbi

Yitzḥak

said regarding coins, that a person is accustomed to feel inside his pouch at every moment.

Come and hear

from what we learned in a beraita:

One who finds coins in synagogues and in study halls, and in any place where the multitudes are found—

they belong to him, because the owners despair of them .

But he did not know

the owner

that they had fallen from him!

Rabbi Yitzḥak said: A person is accustomed to feel inside his pouch at every moment,

and therefore the owner certainly knew that the coins had fallen from him before this person found them .

It is written in the Torah: “When you reap the harvest of your land, you shall not finish reaping the corner of your field when you reap, and the gleaning of your harvest you shall not gather; etc. You shall leave them for the poor and the stranger; I am the Lord your God.” Here the mitzva of leaving leket—gleanings—at the time of harvesting is stated. That is, if one or two stalks fell during the harvest, one must leave them for the poor.

However, if it is clear to us that no more poor people will come to take the leket, it is ownerless and available to everyone, and anyone may take it. We must clarify from what point the leket becomes available to everyone.

Come and hear: From when are all people,

and not only the poor,

permitted to take the leket—

when the namashot have passed through it .

And we say: What are the namashot?

And Rabbi Yoḥanan said: Elderly men who go with a staff .

Poor elderly men who walk slowly with the support of their staffs, examining each and every stalk . After they have passed through the field, the other poor despair of finding leket there.

Reish Lakish said:

Namashot means

those who glean after those who gleaned ,

who have already gleaned in the field several times , at which point the other poor despair.

And

it is difficult:

why

are the rest of the people permitted to take the leket?

Granted that the poor here have despaired,

the poor of this place have already despaired, since they saw that the namashot had passed through it. But

there are poor people in another place

who do not know that the namashot have already passed through the field,

and

those poor people

have not despaired

yet!

Rather, certainly despair without knowledge is effective. Therefore, since when the poor people from elsewhere learn that the namashot have passed through this field they will despair of it, this is considered as though they had already despaired now, when the namashot passed through it, and therefore the leket is permitted to everyone.

The Gemara rejects this:

They said:

It is indeed possible to say that despair without knowledge is not effective.

Nevertheless, from the time that the namashot passed through it, everyone is permitted to take the leket, even though the poor people elsewhere still do not know about it,

since there are poor people here,

and therefore

those

poor people from elsewhere

from the outset

have despaired

of the leket in this field.

And they say

to themselves:

The poor people there,

of that place,

are gleaning it

before us, and certainly nothing will remain for us. If so, this is despair with knowledge!

Come and hear:

If one found

fig cakes

figs that are cut with a knife, causing their juice to flow, and spread out in the field to dry

on the road, and even

if he found them

beside a field

where they spread

fig cakes

to dry, so that it appears that they came from that field,

And likewise

if one walked beside

a fig tree

planted in a field,

that leans

with its foliage leaning from the field

toward the road, and found figs beneath it,

and it is unknown whether the figs fell from this tree or were lost by one of the passersby,

they are

permitted

to the finder

because of robbery ,

as taking them does not constitute robbery.

The apparent reason is that although their owners do not know now that they have been lost, since when they learn of it they will despair, as the figs have no distinguishing mark, this is already considered despair from now, in accordance with the statement of Rava.

And

since these fruits are ownerless, so that anyone may take them, they are

exempt from tithes,

as is the law with regard to all ownerless produce .

This law applies specifically to figs. But

with regard to olives and carobs,

if one found them on the road beneath a tree,

it is prohibited

to take them.

Apparently, this accords with Abaye, who holds that despair without knowledge is not effective. If so, the first clause is difficult for Abaye, while the latter clause is difficult for Rava!

And we say:

Granted

the

first clause,

where we learned that fig cakes are permitted because of robbery,

for Abaye,

who holds that despair without knowledge is not effective,

it is not difficult.

This is because one can say that

since

these fruits

are valuable

they are valuable—a person

feels inside them

at every moment. If so, as soon as they were lost, he became aware of the matter, and this is not despair without knowledge.

Likewise, what we learned—that if one found figs beneath

a fig tree

leaning toward the road, they are permitted because of robbery—

also

is not difficult for Abaye, because

it is certain that they fall.

That is, the owners know that it is the way of a fig tree for figs to fall from it, and they despair of them from the outset, since they fear that the finder will think that they fell from passersby and will take them for himself; this is despair with knowledge.

But the latter clause, for Rava,

who holds that despair without knowledge is effective,

is difficult!

For it teaches: With regard to olives and carobs, it is prohibited!

This proves that although certainly, once the owner learns of the loss, he will despair, nevertheless, since he does not know now, and did not despair from the outset because olives and carobs do not ordinarily fall, it is prohibited to take them. If so, this proves that despair without knowledge is not effective, which is difficult for Rava!

Rabbi Abbahu said: The case of

the

olive is different, since its appearance

form

identifies it

as having fallen from a particular tree.

And

therefore,

even though the olives have fallen

from the tree, their owners do not despair of them, because

it is certain

it is known that

a person’s place

is the person himself

the person’s place identifies him. That is, everyone recognizes and knows from which tree the olives fell and who owns the tree. And we challenge this:

If so, even the first clause,

with regard to a fig tree leaning toward the road,

also

the owner of the figs should not despair, since it is known that they belong to him! Why, then, did we learn that they are permitted because of robbery?

Rav Pappa said: A fig

upon falling

from the tree immediately becomes

disgusting,

becoming soiled and spoiled, and is no longer valuable to its owner . Therefore, since the owner of the fig tree knows that figs ordinarily fall from the tree, he despairs of them from the outset .

This is not so with olives, which are not damaged by falling .

Ta shma: The thief who took from this one

[who stole from one person] –

and gave

his stolen property

to this one

[to another person],

and likewise, a robber,

a person who robs by force, in broad daylight,

who took from this one –

and gave it to that one,