Bava Metzia 27b (כז:) — the Talmud in English

—

since they do not have the power to uproot a matter of Torah law.

the words of our Mishna, the foundational early text of the Talmudic discussion:

was needed with regard to

for one is obligated to return specifically a lost object that has an identifiable claimant, whose owners have not despaired of recovering it. The fact that the tanna also mentioned the matter of

because he had already stated the requirement of an identifiable claimant. In fact, this law is not derived from Scripture; it is rabbinic.

identifying signs

They say:

Indeed, it is possible to say that identifying marks are of Torah origin; and had they testified about actual identifying marks on his body, she would have been permitted to marry on that basis.

As for what we learned here, that identifying marks on

his body

are ineffective, the reference is to identifying marks

of being tall or short.

That is, the witnesses say that the deceased was tall, or they say that he was short. This is not considered an identifying mark , for there are many tall and short people.

As for what we learned, that identifying marks on

his belongings

of the deceased are ineffective, this is because

we are concerned that they may have been lent .

We are concerned that perhaps the husband lent his belongings to someone else, and that person wore them, and it was that person who died, not the husband!

And we raise an objection:

If we are concerned that the belongings may have been lent,

then this raises a difficulty concerning what we said above: that one returns

a donkey on the basis of identifying marks on its saddle [

if a person comes and provides identifying marks concerning the saddle, because we assume that he is also the donkey’s owner]—

how do we return

it to him [how do we return the donkey to him]? After all, we should be concerned that perhaps the owner of the saddle lent his saddle to someone else; if so, it is possible that the saddle indeed belongs to the person providing identifying marks concerning it, but that the donkey belongs to the person who borrowed the saddle from him!

They say:

Are you asking about

a saddle?

You are asking about a saddle?

No, perhaps

people do not lend saddles

[people do not lend saddles to others]; rather, each person uses only the saddle to which his donkey is accustomed,

because

a saddle adjusted for another donkey, and not suited to this donkey’s body,

wounds

the donkey [

causing it injuries].

Alternatively:

What we said, that one may not testify concerning

his belongings

of the deceased, refers to

testimony concerning white and

testimony

concerning red.

testimony about

red objects.

That is, the witnesses testify that the deceased’s belongings were white or red, which is not conclusive testimony, since there are many belongings in these colors.

And we challenge this:

But there is that which was taught in a beraita:

A messenger whom the husband sent to bring a bill of divorce to his wife, and it was lost from him, and after some time

he found

the messenger’s bill of divorce

tied inside his pouch

[his pouch],

or in his wallet

,

or in his ring [

or in his ring],

or he found it among his belongings

in his home, and

even

if he found it

after

a

long time

had passed since it was lost—even though the messenger does not recognize the bill of divorce itself, but only the container in which he found it—the bill of divorce is

valid,

and we are not concerned that perhaps it was exchanged for another one and was not written for this woman.

And if it should enter your mind

that

we are concerned that it may have been lent, when he found it tied inside the pouch—

why is it valid? Let us be concerned that it may have been lent!

Let us be concerned that perhaps the messenger lent his pouch to another person, and that person tied a bill of divorce inside it, and the pouch was lost from him!

They say:

They answered: There is no need to be concerned about this, because

a pouch, a wallet, and a ring—

people do not lend them

[people do not customarily lend them to others].

And the reason is:

A purse and my wallet

are not lent

because

people use them as omens.

People say: It is a sign for a person who lends his purse—that he is selling his fortune to the borrower.

And a ring

are not lent

because people forge with it.

In their times, each person had a unique seal on his ring, and they would use it to seal items sent by them, so that it would be recognizable that they had sent them. If he lent his ring to another, the borrower could prepare a seal resembling the lender’s seal and use it to forge his own consignments.

And now the Gemara discusses:

Let us say

that we should say that the issue of whether signs establish an identification by Torah law or by rabbinic law is

as

a dispute among

the tannaim

!

For we learned in a beraita:

One may not testify on the basis of a mole

(a wart). Witnesses who testify that a person died, in order to permit his wife to marry another man, and as an identifying feature they say that they saw a mole on the deceased, on a particular limb, even though we know that the woman’s husband indeed had a mole on that limb, this is not a sufficient sign to permit her to marry.

And Elazar ben Mahavai says: One may testify on the basis of a mole.

That is, this is considered proof of the husband’s death.

Is it not

with regard to this that they disagree: The first tanna holds that signs have only rabbinic status,

and therefore, in the case of a married woman, whose prohibition is from the Torah, we do not rely on signs,

while Elazar ben Mahavai holds that signs establish identification by Torah law,

and therefore it is possible to rely on the mole?!

Rava said:

It is possible to say that

everyone

holds that

signs establish identification by Torah law.

And

in what

do they disagree here?

In

the question of whether a

mole

that appears on the body of this deceased person could also be

common

to

a

different person who is

of the same astrological hour,

who was born at the same time and under the same constellation as this person—

they disagree.

One

the first tanna

holds: A mole is common to one born under the same constellation.

Therefore, the mole is not proof, since it is possible that the deceased was another person, born under the same constellation, who also had such a mole.

And the other

Elazar ben Mahavai

holds: A mole is not common to one born under the same constellation.

Alternatively, everyone

holds that

a mole is not common to one born under the same constellation.

And here—

in

the question of whether

signs that are liable to change after death,

such as a mole that was black during his lifetime, could turn white after his death, or not—

they disagree .

One, the first tanna,

holds: Signs are liable to change after death.

Therefore, the mole is not proof, since it is possible that it changed after death and did not appear that way during his lifetime.

And the other

Elazar ben Mahavai

holds: Signs are not liable to change after death.

Alternatively, everyone

holds that

a mole is not liable to change after death, and

likewise everyone holds that

signs are

rabbinic.

And here, in

the question of whether

a mole is a definitive sign—

they disagree.

One,

Elazar ben Mahavai,

holds: A mole is a definitive sign.

Therefore, although signs have only rabbinic status, nevertheless one may rely on this, since it is a definitive sign and certain proof that this was the person who died.

And the other,

the first tanna,

holds: A mole is not a definitive sign.

Since signs have only rabbinic status, it is impossible to permit the woman on the basis of the mole.

Rava said: If you would conclude

that

signs do not establish identification by Torah law, how do we return lost items on the basis of signs?

That is: The Sages could indeed enact such an ordinance, even though signs are not clear proof, on the basis of the principle that property rendered ownerless by the court is ownerless. But what reason did the Sages see to enact this ordinance? It is possible that he gives the lost item to someone who is not its owner?!

That is, although the Sages could enact such a regulation even though identifying marks are not conclusive proof, on the basis of the principle that property declared ownerless by the court is ownerless, what reason did the Sages see to enact this regulation? It is possible that the item would be given to someone who is not its owner!

And Rava explained: The reason for the ordinance is

that it is agreeable to the finder of a lost item that it be returned

[that he return it]

on the basis of signs,

even though this is not clear proof,

so that when his lost item is lost

the lost item

to him,

the finder,

it too will be returned to him

[they will return it to him]

on the basis of signs.

Rav Safra said to Rava: Does a person do himself a favor with property that is not his!?

What difference does it make that this is agreeable to the finder, if it is not agreeable to the owner of the lost item?!

Rather,

this is the reason:

It is agreeable to the owner of the lost item

himself that the Sages enacted the ordinance

that he provide signs and take it

[that he provide signs for the lost item and take it], because

he knows

the person who lost it

has no witnesses

that it is his; and if they required him to produce witnesses, his lost item would never be returned to him

! And

therefore

he says

to himself: “No one else knows the definitive signs belonging to it

except me,

and

I will provide its definitive signs—

and I will take it

[and take it]!” Rava then challenged Rav Safra:

But as for that which we learned: Rabban Shimon ben Gamliel says:

One who finds three promissory notes, of one person who

borrowed

[borrowed]

from three

different people—the borrower claims that he repaid his debts and that the lenders returned the promissory notes to him, and that he lost them; whereas the lenders claim that the notes were lost by them and that the borrower has still not repaid his debt—

He shall return

the notes

to the borrower.

For it is reasonable that they fell from his possession after he repaid his debts. For if they fell from the lenders, how did all the promissory notes come to be found bundled together?

And if he found promissory notes of

three

people

who borrowed from one person—

he shall return

the notes

to the lender.

For it is not reasonable that they were lost by the borrowers, since if so, how did all the notes come to be found bundled together?

Rava held that they return them to the lender on the basis of this sign: He says that he lost three promissory notes in which he lent money to three people.

Now, in such a case, if the note indeed fell from the borrower, who had already repaid his debt, is it

agreeable to the borrower that it be returned to him

[that it be returned to him]

to the lender?

It would be preferable for him for the notes to remain forever in the finder’s possession, in which case they would be like burned documents, and the lender would never collect the debt with them!

He said to him

Rav Safra: What is returned

there

to the borrower and to the lender is not because of these signs; rather,

it is logical

that this is the law:

When one person borrowed from three—

it is reasonable that

it be returned to the borrower,

because

promissory notes are commonly found with the borrower

—that three notes in which he borrowed from three people would be found with him. But

they are not commonly found with the lender

—for there would be no reason for the notes of the other lenders to be found with this lender!

Rather, it necessarily follows that

infer from here

that

the lender lost them.

But when the finder discovers notes of

three people who borrowed from one person—

it is reasonable that

he return them to the lender,

because

they are commonly found with the lender

—that three notes of different borrowers who borrowed from him would be found with him. But

with the borrower

they are not commonly found,

since there would be no reason for the notes of the other borrowers to be found with him!

Rather, it necessarily follows that the notes were lost by the lender.