Bava Metzia 26a — the Talmud in English

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[the vessel had accumulated a great deal of rust, and it was evident that it had been lying there for a long time. Surely the owner of the house would not have left it there for so long; therefore, it belongs to the finder] . Maimonides wrote: “Since a person’s courtyard acquires an object for him without his knowledge, as will be explained, why does the owner of the courtyard not acquire it? Because it is unknown to him and to others, and this treasure is lost to him and to everyone. Therefore, it belongs to the finder. If the Torah said this with regard to a person’s lost object, as it is written, ‘that which was lost from him,’ all the more so with regard to an ancient treasure that never belonged to him.” The Raavad challenged him: “This is an a-fortiori inference that can be refuted. With regard to an object lost at sea, to whom would it grant it? But an object lost within a mound should be granted to its owner, and likewise in an old wall. The reason here is that it is not a guarded courtyard.” The Raavad wrote that the reason is that it is not a guarded courtyard; its owner must be standing beside it and state that it should acquire the object for him. Even HaEzel explained his words: He does not mean that the wall and the mound are not protected from others. Rather, even if they are protected from others, for their owners they have the status of an unguarded courtyard. An unguarded courtyard does not acquire an object not because others can take it, but because it is not like an agent who guards an object for the one who appointed him, and it is not like the person’s hand if it is not near him. Therefore, this mound, which does not guard the object for its owner because the object is not destined to be found, has the status of an unguarded courtyard. However, the Maggid Mishne explained the matter simply: the wall and mound are not protected. Some explained that Maimonides also agrees with Tosafot: Since the object is lost to everyone and is not likely to be found, the owner’s courtyard does not acquire it for him. This appears to be the position of the Tosafot Yom Tov, who cited Tosafot’s view and wrote about it: “Maimonides wrote likewise.” However, the Mahaneh Efraim states that their views are nevertheless not completely identical. According to Tosafot, even an object in a shop and the like is considered unlikely to be found, and the courtyard does not acquire it. According to Maimonides, this law applies specifically to a mound and the like, where the object is entirely lost to him. The Mordekhai further cited Rabbi Barukh of Mainz: “We say that a person’s courtyard acquires an object for him without his knowledge only in the case of a completely ownerless object, but not in the case of a lost object. Even where there is despair of recovery, since, had he known of it, he would not have declared it ownerless, this is not considered ownerless.” The Netivot wrote that Rabbi Barukh agrees with the Rosh, who held that the spoils of the Amorites were acquired by all Israel and therefore have the status of a lost object belonging to a Jew; otherwise, they would be ownerless. Ketzot HaHoshen explained his words as follows: Rabbi Barukh says that a courtyard does not acquire a lost object without the owner’s knowledge only because such a courtyard operates through agency rather than as the person’s hand, and an agent cannot acquire something when doing so harms another party. Rabbi Barukh holds that an ownerless object is not considered something that harms another party, since it merely prevents others from gaining. But in the case of a lost object, since despair does not remove it from the owner’s possession until it enters the possession of one who acquires it, there is a definite obligation toward others: by acquiring the object, the finder removes it from the owner’s possession. Therefore, he does not acquire it through his courtyard without his knowledge. When he knows of it, however, the courtyard functions as his hand, and he acquires it even when this harms another party. The Shita Mekubetzet further answered in the name of anonymous Tosafot: “We say that a person’s courtyard acquires an object for him without his knowledge only when the courtyard belonged to him before the lost object entered it. But when the courtyard does not belong to him, his courtyard does not acquire it.” Here, the lost object entered the courtyard long ago, in the days of the Amorites. The Rosh answered: “It can also be said that what remained buried by the Amorites did not belong to the person to whom the land fell as his portion, since the spoils were divided among all Israel. Once it remained there, it was considered lost to all Israel, and therefore it belongs to the finder. And if you would say that his courtyard should acquire it after Israel despaired of recovering it, his courtyard is no stronger than his hand. If it had come into his hand before despair, he would no longer acquire it, since it came into his possession in a forbidden manner. Therefore, in such a case his courtyard likewise does not acquire it. And since the first owner did not acquire it, the same is true of his son and grandson.”

meaning that the utensil has developed extensive rust, and it is evident that it had been lying there for a long time. Certainly, the homeowner would not have left it there for such an extended period; therefore, it belongs to the finder] .

We learned in our Mishna:

With regard to a new wall, if it is found from the midpoint outward—

it belongs to the finder; if it is found from the midpoint inward—

it belongs to the owner of the house.

Rav Ashi said: With regard to a knife [a knife]

found in one of the holes in the wall—

we follow the handle [they follow the handle].

we follow the handle.

If the handle is facing inward, even if the knife lies from the midpoint of the wall outward, it is reasonable to assume that the members of the household placed it there, since this is the way it is normally put down: one holds the handle and places the knife down.

But if the handle is facing toward the public domain, even if the knife is from the midpoint of the wall inward, it is reasonable to assume that people from the public domain placed it there, and it belongs to the finder. He answered that whenever the handle faces outward, one of the people from the public domain certainly placed it there. Although the public has no access to the inner half, the knife was in fact placed from the outside and then rolled inward. Similarly, when the handle faces inward, we say that the owner of the house placed it from the inside and it then rolled outward.

And

also with a

And likewise, with a money pouch [in a pouch for coins]—

a money pouch—we go

we follow its strings [they follow the straps with which it is tied].

we follow the straps with which it is tied.

If the strings face toward the house, it is reasonable to assume that the members of the household placed it there, since this is the way it is placed from inside. And if they face outward, it is reasonable to assume that people from the public domain placed it there.

We ask:

But as for our Mishna, which teaches that

that

from the midpoint outward—

it belongs to the finder; from the midpoint inward—

it belongs to the owner of the house,

why is the law so?

Let us see [for we can see]

we can see

whether the handle faces inward [toward the inside],

toward the inside,

or whether the handle is

or whether the handle faces outward [outside],

toward the outside,

or whether the strings face inward or whether they face outward!

The Gemara explains: In

the Mishna, the case concerns finding objects that are not utensils and have no fixed place to grasp, such as

the case concerns the finding of objects that are not utensils and have no fixed place by which they can be held, such as

wool fluff [flocks of wool]

wadding and

and a piece of silver [a piece of silver], which contain no indication of from which side they were placed.

a piece of silver, with no indication of from which side they were placed.

A tanna—a sage of the Mishnaic period—taught: If the entire length of the hole in the

the entire length of the hole in the

wall was filled with these objects [with the found objects]—

with the found objects, they

the owner of the house and the finder divide them

equally. Maimonides, however, wrote: “If one finds a buried treasure in a new wall, if the treasure indicates that it belongs to the owner of the house, it is his. If it indicates that it belongs to someone from the marketplace, it belongs to its finder. How so? In the case of a knife, its handle provides the indication, and in the case of a pouch, its opening provides the indication. But if the wall was filled with such objects, they divide them.” We see that he holds that even with an object that provides an indication, if the wall is filled with such objects, they divide them. The Bah explains that Maimonides understood the beraita—a tannaitic source not included in the Mishna—to mean this even with regard to a knife and a pouch, since it states without qualification that if the wall was filled with such objects, they divide them. The reason is that only when the object lies in half of the wall do we follow the indication. But if the wall is filled with such objects, this is like two people holding a garment, in which case they divide it, and we do not follow the indication, since the indication is not in the portion of the object lying from the midpoint outward or from the midpoint inward. The Shakh rejected his words: If so, why does the Gemara ask, “It is obvious”? There is surely a major novelty in the matter! See there. However, in his commentary Kesef Mishneh, he cited Rabbi Meir Padua as saying that the wording of Maimonides must be emended. The statement, “But if the wall was filled with such objects, they divide them,” belongs to the continuation of the following law: “If there were coins inside the wall, where there is no indication.” After Maimonides wrote that, with an object lacking an indication, the law depends on the place where it was found—whether from the midpoint of the wall inward or from the midpoint outward—he wrote that if the wall was filled with such objects, they divide them. But with an object that has an indication, we follow the indication.

We ask:

It is obvious!

For this is what we learned in the Mishna: an object found from the midpoint outward belongs to the finder, and one found from the midpoint inward belongs to the owner of the house! Beit Meir answered that the finder’s possession is weak, since he took the object from a hole in the wall adjacent to the public domain. Moreover, his claim is only an uncertain claim, and the court has an uncertainty independent of their claims. In such a case, his possession is not sufficient to make him a person with full possession. Imrei Binah [Laws of Judges, section 43] wrote that, opposite the finder’s possession, the owner of the house has a supporting presumption. It is reasonable to say that this object should remain in the possession of its original owner. If we say that it belonged to someone from the public domain, we are removing it from its owner’s possession and saying that its owner despaired of recovering it and it became ownerless. Therefore, we say that it belonged to the owner of the house and remains presumed to be his. Nevertheless, this is not a complete presumption, and therefore they divide it. See there, where he wrote that according to Maimonides, who rules that when a priest seizes a doubtful firstborn the object is not removed from his possession—and he therefore holds that possession can remove an object from the presumed possession of the original owner—it remains difficult why the finder’s possession does not enable him to acquire the entire object. He answered that the finder had no connection to this object before acquiring it, whereas the owner of the house has a presumption, although it is not a complete one, and therefore his presumption is insufficient. In contrast, in the case of a doubtful firstborn seized by a priest, the priest has a claim based on uncertainty even before seizing it, and therefore his possession is effective.

The Gemara explains:

It is necessary to state this—

the case is one in which the hole slopes to one side [the hole is inclined toward one side].

the case is one in which the hole slopes and inclines toward one side.

Lest you say

that

that the object spilled over to its other side, and initially lay entirely in the higher half of the hole, in which case it should belong to the person on the side where the higher end of the hole is located,

the find toward its other side, and originally it lay entirely in the higher half of the hole, in which case it belongs to the person on the side where the higher end of the hole is located,

it teaches us

that we do not say this; rather, they divide it equally.

We learned in our Mishna:

If he rented out [the house]

the house

to others, even if

the lost object was found

inside the house—

these objects belong to him.

We ask:

But why? Let us follow the last one [let us follow the last tenant]

who rented the house and say that the lost object belongs to him One of the obligations involving tithes is Second Tithe, which a person separates from his produce in the first and second years of the seven-year agricultural cycle. It may be eaten by the owners themselves only within the boundaries of Jerusalem. Since it is sometimes difficult to transport the produce to Jerusalem, the Torah permitted redeeming it with money, bringing the money to Jerusalem, buying food there—such as cattle, sheep, wine, and beer—and eating it there.

Did we not learn [did we not learn this in the Mishna]:

did we not learn this in the Mishna:

Money found before cattle merchants

in Jerusalem,

always—

whether during the pilgrimage festival or not during the pilgrimage festival, we say that it is money of

Second Tithe, and it must be treated according to the laws of Second Tithe, because most meat eaten in Jerusalem is purchased with Second Tithe money.

and it must be treated according to the law of Second Tithe, because most meat eaten in Jerusalem is purchased with Second-Tithe money.

The reason is that, with most of the Second Tithe money that a person brought with him when making the pilgrimage, he would purchase animals for peace-offerings, whose meat was eaten by their owners [as the Gemara in tractate Menahot derives the law of Second Tithe from the law of peace-offerings through a derivation based on the identical expression “there”—“there”].

Since a person generally cannot remain in Jerusalem until he has eaten all his tithes, he would give the Second Tithe money remaining in his possession to the poor of the city or to his friends who lived there, so that they could use it throughout the year to purchase animals and eat them in Jerusalem. Therefore, most of the money used to purchase meat in Jerusalem is Second Tithe money.

And if the money was found

on the Temple Mount,

even if it was found during the pilgrimage festival, it is

ordinary, non-sacred money .

Although most money found in Jerusalem at that time, during the pilgrimage festival, is Second Tithe money, as explained above, nevertheless, since during the rest of the year most money found in Jerusalem is ordinary, non-sacred money, we follow the majority of the year and say that the money fell there before the festival and is ordinary money. This cannot be answered in the same way that the early authorities answered the question of why the owner of the mound does not acquire the object through his courtyard: that a courtyard acquires an object without the owner’s knowledge only when it is something that normally comes to it, but not when it is something he had not anticipated. That reason does not apply to a courtyard belonging to the Temple treasury, since the Gemara says in tractate Bava Kamma: “Sacred property without knowledge is like ordinary property with knowledge,” and Rashi explained that this is because the Divine Presence has awareness. He answered that the reason the Temple Mount does not acquire the money is that the object entered the courtyard of the Temple treasury before despair. As the early authorities wrote, the rule “it came into his possession in a forbidden manner” applies to a courtyard as well. The Netivot [in his introduction to section 200] wrote that the statement that a courtyard acquires an object for the Temple treasury applies only to ownerless property or to property transferred by another person’s intent, but not to a lost object. See there for his reason.

And

if coins were found in the other markets

of Jerusalem [

which do not belong to animal merchants], the law is as follows:

If the coins were found

during the rest of the year,

and not during the pilgrimage festival days—they are

non-sacred,

for the majority of the coins in Jerusalem are non-sacred.

But if the coins were found there

during the pilgrimage festival—

all are tithe,

because during the pilgrimage festival the majority of the coins in Jerusalem are tithe.

And Rabbi Shemaya bar Zeira said: What is the reason

that the law of the markets of Jerusalem differs from that of the Temple Mount, such that we do not say that the coins fell there before the pilgrimage festival—

since the markets of Jerusalem are made to be swept [

to be cleaned by sweeping]

every day.

And if coins fell there before the pilgrimage festival, surely the market sweepers had already taken them.

This is not so with regard to the Temple Mount, which they do not sweep every day, because it is sloped, and therefore mud and dust do not become lodged there. Furthermore, no person enters there with shoes and with the dust on his feet.

Apparently, it is proven from here that in a place that is made to be swept frequently,

we say

that

the first ones, the first ones, have gone [

the earlier coins have gone away],

and these,

those that were found now—

are different ones,

and they fell during the pilgrimage festival!

Here too,

when one found a lost object in a rented house, we should say that, since when the tenant leaves the house for another place, he searches well for all his belongings, takes them, and leaves , it is reasonable that

the first one, the first one—

has gone, and these,

what was found now,

belongs to the latter one [

belongs to the last tenants]!

Reish Lakish said in the name of Bar Kappara:

Indeed, generally one should follow the last one, but in our Mishna the case is

for example, that he made it

the homeowner

an inn [

a place where passersby lodge for a night or two]

for three Israelites

at one time. And since this is so, that one of the three from whom the lost object fell despairs of it, because he does not know from which of the other two to demand it. And we raise the question: If so,

learn from it

that

the halakha follows Rabbi Shimon ben Elazar even

when the majority are Israelites!?

For this is what we said here: the owner of the lost object despairs of it and does not rely on the fact that they will return it to him—even concerning an object that has an identifying mark, for the Gemara did not distinguish concerning this matter. If so, why did the Gemara not resolve the problem above from this beraita?

Rather, Rav Menashya bar Yaakov said:

The case does not concern one who made it an inn for three Israelites, but rather

for example, that he made it an inn for three gentiles,

and if so, surely the lost object became lost from a gentile, for he is the one who lived in the house last, and he is not obligated to return it to him .

Rav Nahman said in the name of Rabbah bar Avuha: You may even say

that the case concerns a house that was rented

to three Israelites ,

and nevertheless you cannot resolve from here that the halakha follows Rabbi Shimon ben Elazar even when the majority are Israelites, because the case of one who made it an inn for three Israelites differs from finding an object in a place where the public is frequently found.

What is the reason?

Because when a lost object fell from a person in a place where the public is frequently found, where the loser does not recognize all those passing there, he thinks that the finder will announce the lost object when the festival arrives, and he will provide identifying marks and take it; therefore he does not despair.

But when he found it in an inn, where there were only three people in that house,

that one from whom it fell—

despairs.

Because

he says

to himself:

Since no other person was together with me—

except these [

for only these people were with me in the house], and yet

I said before them several times, “Return it to me,” and they did not return it to me; and now they will return it

[I told them several times to return it to me, and they did not return it to me. And now they will return it]?

If it had been their intention to return it—

they would have returned it to me [

if they had intended to return it, they would have returned it to me]!

And this fact that they did not return it to me—

because

their intention is to steal it [

rather, the reason they are not returning it to me is that they intend to steal the lost object from me]!

Therefore the owner of the lost object despairs of it, and it is permitted to the finder.

And Rav Nahman follows his own reasoning.