Bava Metzia 27b — the Talmud in English

For

the matter of

returning [the return of]

a

bill of divorce

that was lost from the agent who was bringing it to her from the husband [before he had managed to give it to her], and another person found it, and the agent has no witnesses that this is the bill of divorce that he brought with him: is it possible to return it to the agent

by identifying features

of the bill of divorce [for if this is not the bill of divorce that the husband wrote, it is impossible to divorce this woman with it, since it was not written for her] .

If you say

that identifying features are

of Torah origin—

we return

the bill of divorce to him on the basis of identifying features, and he will be able to divorce the woman with it.

And if you say

that identifying features are

of rabbinic origin,

then

when the Sages enacted a regulation

that a lost object should be returned on the basis of identifying features, it was specifically

in

the matter of

money,

because the renunciation by a court is renunciation.

But in

the matter of

prohibition,

such as a woman’s bill of divorce—

the Sages did not enact a regulation,

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

Come and hear

from the words of our Mishna:

“Even the garment was included among all these; and why did it go out? To juxtapose to it and say to you: Just as a garment is distinctive in that it has identifying features and has a claimant, he is obligated to proclaim it, so too, anything that has identifying features and has a claimant—

he is obligated to proclaim it!”

It is proven from here that the law of identifying features is learned from Scripture! And the Gemara rejects: Even though the

tannaitic authority

mentions both matters, identifying features and claimants, nevertheless, Scripture was necessary concerning

claimants,

for one is obligated to return specifically a lost object that has claimants, whose owners have not despaired. And that the tannaitic authority also mentioned the matter of

identifying features—

was incidental,

alongside what he taught concerning claimants. Indeed, this law is not learned from Scripture; rather, it is rabbinic.

Come and hear

from what Rava said above, that from the word

“donkey”

stated concerning a lost object, we learn that a donkey is returned even

by the identifying features of a saddle ,

and it is proven from here that identifying features are of Torah origin, since this matter is learned from Scripture!

And the Gemara rejects:

Say

that we learn from Scripture that a donkey is returned even

by witnesses to the saddle,

if there are witnesses who recognize through visual recognition that the saddle belongs to him, the donkey is returned to him. But by identifying features, it is not returned by Torah law.

Come and hear:

It is written concerning returning a lost object:

“And it shall be with you until your brother seeks it.”

And it is astonishing:

“Would it enter your mind that he should give it to him”

the finder to the owner of the lost object

before he seeks it?

After all, until a person comes to seek the lost object, the finder does not know to whom to return it!

Rather, seek him,

the one who comes and claims that he is the owner of the lost object,

whether he is a swindler or whether he is not a swindler .

And this is how they expound the verse “until your brother seeks it”: until you seek out [until you investigate] your brother, whether he speaks truthfully or not.

Is it not

the intention that they investigate whether he is a swindler

by identifying features,

checking whether he is familiar with the identifying features of the lost object?! And it is proven from here that identifying features are of Torah origin!

And the Gemara rejects:

No.

The intention is that they investigate

through witnesses

whether he is a swindler—let him bring witnesses that it belongs to him .

Come and hear:

A woman whose husband disappeared, and it is not known to us whether he is dead, in which case his wife is permitted to marry another, or perhaps he is alive, in which case she is forbidden to marry. And witnesses came to testify that they saw him die:

they do not testify [

their testimony is not considered testimony]

unless

they are able to testify

about

the fact that they saw

the appearance of the face together with the nose

of the dead man.

Even though there are

for them

identifying features on his body and on his garments ,

this testimony is insufficient to permit her to marry.

Learn from it: identifying features are not of Torah origin! For if this were not so, why would it not suffice for them to testify concerning identifying features on his body and on his garments?

For if they were, why would it not be sufficient for them to testify about signs found on his body and clothing?

They say:

Indeed, it may be said that identifying marks are of Torah status, and if they were testifying concerning actual identifying marks on his body, she would thereby be permitted to marry.

And as for what we learned here, that identifying marks of

the body

are not effective, 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. And this is not considered an identifying mark, for there are many tall and short people.

And as for what we learned, that identifying marks in

the belongings

of the deceased are not effective, that is because

we are concerned that they may have been lent.

For we are concerned that perhaps the husband lent his belongings to another person, and that person wore them, and it was that person who died, and not the husband!

And we raise an objection:

If we are concerned that they may have been lent,

then what we said above—that one returns

a donkey on the basis of identifying marks on its saddle [if a person comes and gives identifying marks concerning the saddle, because we assume that he is also the donkey’s owner]—is difficult:

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]? For we must be concerned that perhaps the owner of the saddle lent his saddle to another person. If so, it is possible that the saddle indeed belongs to the one giving identifying marks concerning it, but the donkey belongs to the person from whom he borrowed the saddle!

They say:

You ask about

a saddle?

Do you think

it is possible that

people lend saddles [people do not lend saddles to another person],

but each person uses only the saddle to which his donkey is accustomed,

because

a saddle fitted to another donkey, and not suited to the dimensions of this donkey’s body,

wounds

the donkey [causes it injuries].

[it causes it injuries].

Alternatively,

what we said, that testimony is not given concerning

the belongings

of the deceased, refers

to

testimony

concerning white and

testimony

concerning red.

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

And we ask:

But what of that which was taught in a beraita:

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

he found

it when it was

tied in his pouch

[his pouch],

or in his purse

[his purse],

and in his ring

[or in his ring],

or he found it among his belongings

that were in his house,

and even

if he found it

after

a

long time

had passed since the time of the loss, although the messenger does not recognize the get itself, but only the vessel in which he found it lying—the get 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 about lending, when he found it tied in the pouch—

why is it valid? Let us be concerned about lending!

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

They say,

they answered: There is no concern for this, because

a pouch, a purse, and a ring—

people do not lend them [people do not customarily lend them to others].

[people do not normally lend them to others].

And the reason:

a pouch and a purse

may not be lent

because

they are regarded as an omen.

For people say: It is an omen for a person when he lends his pouch—that he is selling his fortune to the borrower.

And a ring

may not be lent

because it can be forged.

For in their time each person had a distinctive seal on his ring, and they would customarily seal with it things sent by them, so that it would be recognized that they had sent them. And if he lent his ring to another, the borrower could prepare a seal resembling the lender’s seal and forge his dispatches with it.

And now the Gemara discusses:

Let us say,

should we say that the issue of whether signs are of Torah authority or rabbinic authority is

a

dispute

of the tannaim

?

For thus we learned in a beraita:

One may not testify concerning a mole

[a wart]. Witnesses who testify that a person died, in order to permit his wife to marry another, and as a sign they say that they saw a mole on the dead person, 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.

And Elazar ben Mahavai says: One may testify concerning 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 are rabbinic,

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

And Elazar ben Mahavai holds that signs are of Torah authority,

and therefore it is possible to rely on the mole!

Rava said:

It is possible to say

that everyone

holds that

signs are of Torah authority.

And

in what did they disagree

here?

With

regard to the issue of whether a

mole

that appears on the body of this dead person may be

found

also

on

another person who is

of the same astrological birth,

who was born at the time of this person’s birth and under his fortune—they disagree.

One master,

the first tanna

holds: A mole is found in one of the same astrological birth.

Therefore the mole is not proof, since it is possible that the dead person is another person, of the same astrological birth, who also had such a mole.

And the other master,

Elazar ben Mahavai

holds: A mole is not found in one of the same astrological birth.

Alternatively: Everyone

holds that

a mole is not found in one of the same astrological birth.

And here—

with

regard to the question of whether

signs that are liable to change after death,

such as a mole that was black during his lifetime—whether it can turn white after his death , or not—they

disagree.

One master, 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 this way during his lifetime.

And the other master,

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, with

regard to the question of whether

a mole is a distinctive sign—

they disagree.

One master,

Elazar ben Mahavai

holds: A mole is a distinctive sign.

Therefore, although signs are rabbinic, nevertheless it is possible to rely on this, since it is a distinctive sign, and it is certain proof that this is the person who died.

And the other master,

the first tanna

holds: A mole is not a distinctive sign.

And since signs are rabbinic, it is impossible to permit the woman on the basis of the mole.

Rava said: If you should conclude

that

signs are not

of Torah authority, how do we return lost property by signs?

That is, the Sages can indeed enact such an enactment, even though the signs are not clear proof, on the basis of the principle that what the court declares ownerless is ownerless. But what reason did the Sages see to enact this enactment? For it is possible that he gives the lost item to someone who is not its owner?!

And Rava explained: The reason for the enactment is because

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

[that he return it]

by signs,

even though this is not clear proof

so that when his lost item is lost

an item

to him,

the finder

will likewise return it to him

[they will return it to him]

by signs.

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

What does it matter that this matter 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 this enactment

to give signs and take it

[that he give signs concerning the lost item—and take it]. Because

he knows

the one who lost it

that he has no witnesses

to the fact that it is his, and if they require him to produce witnesses, his lost item will never be returned

! And

therefore

he says

in his heart: Behold,

everyone does not know its distinctive signs

except me

, and I will give its distinctive signs—

and I will take it

[and take it]! Rava returned and challenged Rav Safra:

But concerning that which we learned: Rabban Shimon ben Gamaliel says:

the finder of three promissory notes, of one person

who borrowed

[who borrowed]

from three

different people—the borrower claims that he repaid his debts, and the lenders returned the promissory notes to him, and they were lost from him. Whereas the lenders claim that the promissory notes were lost from them, and the borrower still has not repaid his debt—

he shall return

the promissory 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 were all the promissory notes found bound together?

And if he found promissory notes of

three

people

who borrowed from one—

he shall return

the promissory notes

to the lender.

For it is not reasonable that they were lost by the borrowers; for if so, how were all the promissory notes found bound together?

And Rava held that they return them to the lender by giving this sign: he says that three promissory notes were lost from him, which he lent to three people.

And now, in such a case, if the promissory 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?

For it is preferable for him that the promissory notes remain forever in the finder’s possession, in which case they are like burned documents, and the lender will never collect with them!

He said to him

Rav Safra: That which they return

there

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

it is a logical inference

that this is the law:

When one borrowed from three—

it is reasonable that

he shall return it to the borrower,

because

three promissory notes are commonly found with a borrower

that he borrowed with them from three people. But

they are not commonly found with a lender

that all three promissory notes of the borrower should be found with this lender, for the promissory notes of the other lenders did not need to be found with this lender!

Rather, it is necessarily the case that

learn from this

that

the lender’s promissory note fell.

But when the finder finds promissory notes of

three who borrowed from one—

it is reasonable that

he shall return it to the lender,

because

three promissory notes are commonly found with a lender

that three promissory notes of different borrowers who borrowed from him should be found with him. But

with a borrower—

they are not commonly found,

for the promissory notes of the other borrowers did not need to be found with him!

Rather, it is necessarily the case that the promissory notes were lost from the lender.