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1 ‎[1] **and likewise,** in the case of the **Jordan** River or another river **that took** an item **from this** person **and gave** it **to that** person, in all those cases, **that which** the person **took, he took, and that which** the person **gave, he gave.** Likewise, that which the river took, it took, and that which the river gave, it gave. The person who received the item need not return it.
‎[2] The Gemara asks: **Granted** in the cases of the **robber and** the **Jordan** River, one could say **that** the owner **sees them** take the item **and despairs** of its recovery; **but** in the case of the **thief,** who takes the item surreptitiously, **does** the owner **see him** take the item and would **that** lead him to **despair?** The Gemara explains: **Rav Pappa interpreted** the term thief in the *baraita* to be referring to **armed bandits [*listim*];** therefore, the owner is aware that the item was taken and he despairs of its recovery. The Gemara asks: **If so, this is** the same as **a robber,** why mention two identical cases? The Gemara answers: The *baraita* mentioned **two types of robbers;** in both cases the owner was aware that his item was taken.
‎[3] The Gemara suggests: **Come** and **hear** a proof from a *baraita*: If **a river swept** away **one’s beams, one’s wood, or one’s stones and placed them into the field of another, these** items belong **to** the owner of the field **due to** the fact **that the** respective **owners despaired** of their recovery. The Gemara infers from the *baraita*: **The reason** they belong to the finder is **that the owners despaired; but** in **an unspecified** case, where it is not definitively known that the owners despaired, they do **not** belong to the finder. Apparently, despair that is not conscious is not considered despair. The Gemara rejects the proof: **With what are we dealing here?** It is a case **where** the owners are **capable of rescuing** the beams, wood, or stones; therefore, their decision not to rescue them is a clear indication of despair.
‎[4] The Gemara asks: **If so, say the latter clause** of the same *baraita*: **If the owners were pursuing** the items, the finder is **obligated to return** them. **If** it is a case **where** the owners are **capable of rescuing** the items, **why** did the *baraita* **specifically** cite a case where the owners were **pursuing** the items? **Even** if they were **not pursuing** the lost items, the items **also** remain in their ownership, as they did not despair of their recovery. The Gemara answers: **With what are we dealing here?** It is a case **where** the owners are **capable of rescuing** the items **with difficulty.** In that case, if the owners **pursue** the items, it indicates that **they did not despair** of their recovery, but if the owners **do not pursue** the items, it indicates that **they despaired** of their recovery.
‎[5] The Gemara suggests: **Come** and **hear** a proof from a *baraita* (*Tosefta*, *Terumot* 1:5): **When did** the Sages **say** that in the case where **one separates *teruma* without** the owner’s **consent, his *teruma* is** considered ***teruma*?** It is in a case where **there was** someone **who entered another’s field and gathered** produce from it **and separated *teruma* without** the owner’s **permission. If** the owner is **concerned about** his actions and view it **as robbery, his *teruma* is not *teruma*, but if** he is **not** concerned, **his *teruma* is *teruma*.**
‎[6] The *baraita* continues: **And from where would does he know whether** the owner is **concerned about** his actions and view it **as robbery or not?** If **the owner came and found him** separating *teruma* **and said to him:** You should have **gone to** take the produce of **better** quality and separate *teruma* from that, then **if** produce of **better** quality **than** the produce he had separated **is found, his *teruma* is** considered ***teruma*,** since the owner is assumed to have been sincere and pleased that the other has separated *teruma* from his produce. **But if not, his *teruma* is not *teruma*,** as it may be assumed that the owner was angry at him and was speaking sarcastically. The *baraita* adds: If **the owners were gathering and adding** to the *teruma* he had separated, indicating that they agree to his act of separation, **either way,** whether or not better-quality produce was found, **his *teruma* is** considered ***teruma*.**
‎[7] The Gemara questions the ruling of the *baraita*: **But why** is that the *halakha*, that **if** produce of **better** quality **than** the produce he had separated **is found his *teruma* is *teruma*? At the time that he separated the *teruma*, he did not know** that the owner would ultimately agree. The *baraita* states that the *teruma* is *teruma* from the moment he separated it, despite the fact that it was only later that he learned that the owner agreed. Apparently, in the case of despair as well, despair that is not conscious is considered despair, contrary to the opinion of Abaye. **Rava interpreted** the matter **in accordance with** the opinion **of Abaye:** This is a case **where** the owner **designated him** as **an agent.**
‎[8] **So too, it is reasonable, as if it enters your mind that** the owner **did not designate him** as **an agent, would his *teruma* be *teruma*? But doesn’t the Merciful One state:** “So you also shall set apart a gift unto the Lord of all your tithes” (Numbers 18:28)? Once the verse states **“you,”** the addition of the word “also” in the term **“you also”** serves **to include an agent.** Therefore, an agent separating *teruma* has the same *halakhot* as an owner separating *teruma*. **Just as** when **you,** the owner, separate *teruma*, it is **with your knowledge, so too** when **your agent** separates *teruma*, it must be **with your knowledge.** Evidently, in any event, one needs to be appointed as an agent to be capable of separating *teruma* for another.
‎[9] **Rather, with what are we dealing here?** It is a case **where** the owner **designated him** as **an agent and said to him: Go and separate *teruma*, but** he **did not say to him: Separate *teruma* from these** specific crops. **And** when **the owner’s** intent is **unspecified,** and it is unclear which of his crops are meant to be separated **when** the agent **separates *teruma*,** it is **from** the crops of **intermediate quality** that **he separates *teruma*. And** in this case, the agent **went and separated *teruma* from higher-quality** produce, **and the owner** of the field **came and found him and said to him:** You should have **gone to** take the produce of **better** quality and separate *teruma* from that. **If** produce of **better** quality **than** the produce he had separated **is found, his *teruma* is** considered ***teruma*. But if not, his *teruma* is not *teruma*,**
‎[10] The Gemara digresses with a related incident: **Ameimar, Mar Zutra, and Rav Ashi happened to** come to **the orchard [*levustana*] of Mari bar Isak. His sharecropper came and placed dates and pomegranates before them. Ameimar and Rav Ashi ate** the fruit, but **Mar Zutra did not eat** the fruit due to the concern that the sharecropper had provided them with the fruit without the approval of the owner of the field. **Meanwhile, Mari bar Isak came** and **found them** eating his fruit **and said to his sharecropper: Why didn’t you bring the Sages** fruit **from those higher-quality** fruits?
‎[11] **Ameimar and Rav Ashi said to Mar Zutra: Now why is the Master not eating the fruit? But isn’t it taught** in a *baraita*: In a case where the owner of the field came and found him and said to him: You should have gone to take the produce of better quality and separate *teruma* from that; **if** produce of **better** quality **than** the produce he had separated **is found, his *teruma* is** considered ***teruma*.** Here too, it is clear that Mari bar Isak approved of the actions of his sharecropper. Mar Zutra **said to them** that **this** is what **Rava said:** The Sages **said** that the statement: You should have **gone to** take the produce of **better** quality and separate *teruma*, indicates consent of the owner **only with regard to the matter of *teruma*, due to** the fact **that it is a mitzva and** the owner **is amenable** to having the mitzva fulfilled. **But here,** in this incident, it is **due to shame that he said this:** Why did you not bring these Sages fruit from those higher-quality fruits? He did not really want to give them the fruit.
‎[12] The Gemara suggests: **Come** and **hear** another proof from a *baraita* with regard to despair that is not conscious. It is written: “And if any part of their carcass falls upon any sowing seed that is to be sown, it is ritually pure. But when water is placed upon the seed, and any part of their carcass falls thereon, it is ritually impure unto you” (Leviticus 11:37–38). Produce becomes susceptible to contracting ritual impurity only after coming into contact with one of seven liquids: Wine, honey, oil, milk, dew, blood, and water. It is taught in the *baraita*: If **the dew is still upon** the produce and has not yet dried, and if the owner **was glad** that the dew moistened the produce and kept it fresh, **that** produce falls into the category of: “But **when** water **is placed** upon the seed,” and the produce is susceptible to contracting ritual impurity. If the produce **had dried** when the owner found it, then **even though he was glad** that the dew had moistened the produce,
2 ‎[1] the produce **is not** in the category of: “But **when** water **is placed [*khi yuttan*]** upon the seed,” and the produce is not susceptible to contracting ritual impurity.
‎[2] **What is the reason** that if the produce dried, the fact that the owner is glad does not render it susceptible to ritual impurity? Is it **not due to** the fact **that we do not say: Since the matter was revealed that he is amenable** to the moisture **now, he was also amenable from the outset?** The same should be true with regard to despair that is not conscious. The fact that when he becomes aware of his loss he despairs of its recovery does not indicate that he despaired from the outset, contrary to the opinion of Rava. The Gemara rejects the proof: It **is different there, as** although the phrase is vocalized to mean: “When it is placed,” **it is written: When one places [*ki yitten*],** from which it is derived that the produce is rendered susceptible to ritual impurity **only** if the owner **places** the liquid on the produce.
‎[3] The Gemara asks: **If so,** in **the first clause** of the *baraita*, **too,** the produce should not be rendered susceptible to contracting impurity, because the dew fell on the produce and was not placed there by the owner. The Gemara answers: **There,** the explanation is **in accordance with** the opinion **of Rav Pappa, as Rav Pappa raised a contradiction:** The verse states: “But when water is placed [*vekhi yuttan*] upon the seed, and any part of a carcass falls thereon, it is ritually impure unto you” (Leviticus 11:38). The word “*yuttan*” **is written** in the defective form, as if it says **“*ki yitten*.”** Accordingly, this would mean that one must actively place the water on the produce. Yet, **we read** it, based on the tradition as to its correct pronunciation, as if it is written **“*ki yuttan*,”** which includes any situation where the produce becomes wet. **How so?** How can the way the verse is written and the way it is read be reconciled?
‎[4] Rav Pappa explains that **we require** that the situation described by the words **“when water is placed [*ki yuttan*]”** be **similar to** the situation described by the words: **When one places [*dekhi yitten*]: Just as** the term **places [*yitten*]** indicates **that** it is **with the knowledge of** the owner that the produce becomes wet, as he himself is placing the water, **so too,** the term **“is placed [*yuttan*]”** means **that** it is **with his knowledge** that the produce becomes wet, despite the fact that he did not place the water himself. Therefore, no proof may be cited with regard to the matter of despair, where there is no Torah derivation requiring awareness from the outset.
‎[5] The Gemara suggests: **Come** and **hear** a proof from that **which Rabbi Yoḥanan says in the name of Rabbi Yishmael ben Yehotzadak: From where** is it derived **with regard to a lost item that the river swept away that it is permitted** for its finder to keep it? It is derived from this verse, **as it is written: “And so shall you do with his donkey; and so shall you do with his garment; and so shall you do with every lost item of your brother, which shall be lost from him, and you have found it”** (Deuteronomy 22:3). The verse states that one must return **that which is lost from him,** the owner, **but is** available to be **found by any person. Excluded** from that obligation is **that which is lost from him and is not** available to be **found by any person;** it is ownerless property and anyone who finds it may keep it.
‎[6] **And the prohibition** written in the verse against keeping an item that is lost only to its owner is **similar to the allowance** to keep an item lost to all people that is inferred from the verse; **just as** in the case of **the allowance, whether there is a distinguishing mark and whether there is no distinguishing mark,** it is permitted for the finder to keep it, **so too** in the case of **the prohibition, whether there is a distinguishing mark and whether there is no distinguishing mark,** it is **prohibited** for the finder to keep it, until there is proof that the owner despaired of its recovery. The Gemara concludes: **The refutation of** the opinion of **Rava is** indeed a conclusive **refutation.**
‎[7] **And** although in disputes between Abaye and Rava, the *halakha* is typically ruled in accordance with the opinion of Rava, the ***halakha*** is **in accordance with** the opinion of **Abaye in** the disputes represented by the mnemonic: ***Yod*, *ayin*, *lamed*; *kuf*, *gimmel*, *mem*.**
‎[8] **Rav Aḥa, son of Rava, said to Rav Ashi: And now that** the opinion of **Rava was conclusively refuted,** and the *halakha* is that despair that is not conscious is not considered despair, if **those dates** are blown off the tree **by the wind, how do we eat them?** Perhaps their owner did not despair of their recovery. Rav Ashi **said to him: Since there are repugnant creatures and creeping animals that eat** the dates after they fall, the owner **despairs of their** recovery **from the outset.** Therefore, one who finds the dates may keep them.
‎[9] Rav Aḥa asked: Perhaps the tree belonged to **minor** orphans **who,** because **they are not capable of relinquishing** property, cannot despair of recovering the dates from the outset. Accordingly, **what** is the justification for eating found dates? Rav Ashi **said to him: We do not presume a valley to** be **land** belonging **to orphans,** and therefore that is not a concern.
‎[10] Rav Aḥa asked: If the **presumptive status** of the trees was **previously** established as belonging to orphans, **what** is the *halakha*? If the trees are surrounded by **fences** that prevent repugnant creatures and creeping animals from gaining access, **what** is the *halakha*? Rav Ashi **said to him:** The dates **are forbidden** in those cases.
‎[11] § The mishna teaches that if one found **bundles** of grain **in a public area, these** belong **to him. Rabba says** with regard to this ruling: **And** this is the *halakha* **even with regard to an item on which there is a distinguishing mark.** The Gemara comments: **Apparently, Rabba holds** that the legal status of **a distinguishing mark that is prone to be trampled is not** that of **a distinguishing mark.** Since the owner of the lost item knows that the mark is prone to be trampled, he does not rely on it and he despairs of recovering the item. **Rava said:** The Sages **taught** this *halakha* **only with regard to an item on which there is no distinguishing mark, but with regard to an item on which there is a distinguishing mark,** the one who finds it is **obligated to proclaim** his find. The Gemara comments: **Apparently, Rava holds** that the legal status of **a distinguishing mark that is prone to be trampled is** that of **a distinguishing mark.**
‎[12] **And there are** those **who teach** the dispute with regard to **this *halakha* independent** of the mishna. With regard to the legal status of **a distinguishing mark that is prone to be trampled, Rabba says: It is not a distinguishing mark. And Rava says: It is a distinguishing mark.**
‎[13] The Gemara cites proof from that which **we learned** in a *baraita*: If one finds **bundles** of grain **in a public area, these** belong **to him;** if he finds them **in a secluded area,** the finder **takes** them **and proclaims** his find. **What are the circumstances? If** it is a case **where there is no distinguishing mark** on the bundles, when one finds them **in a secluded area, what does he proclaim? Rather, is it not** a case **where there is a distinguishing mark** on the bundles, and there is then a reason for him to proclaim his find. **And** yet, **it is taught** in the *baraita* that if he finds the bundles **in a public area those** bundles belong **to him. Apparently, a distinguishing mark that is prone to be trampled is not a distinguishing mark.** This is **a conclusive refutation of** the opinion of **Rava.**
‎[14] **Rava** could have **said to you: Actually,** it is a case **where there is no distinguishing mark on** the bundles. **And** with regard to that **which you said:** When one finds them **in a secluded area, what does he proclaim? He proclaims** that the owner should provide the **location** where he lost the bundles and thereby recover his bundles. **And Rabba said:** The **location,** provided by the owner, **is not a distinguishing mark** that would enable the return of an item to its owner. **As it was stated** that the *amora’im* disputed this matter: With regard to **location, Rabba says: It is not a distinguishing mark, and Rava says: It is a distinguishing mark.**
‎[15] The Gemara suggests: **Come** and **hear** a proof from a *baraita*: If one finds **bundles** of grain **in a public area, these** belong **to him;** if he finds them **in a secluded area,** the finder **takes** them **and proclaims** his find. **And** with regard to **the sheaves,** i.e., large bundles, **whether** he finds them **in a public area** or **whether** he finds them **in a secluded area,** the finder **takes** them **and proclaims** his find. **How does Rabba explain** the *baraita*, **and how does Rava explain** the *baraita*? **Rabba explains, according to his** line of **reasoning,** that the *baraita* is referring to bundles **with a distinguishing mark. And Rava explains, according to his** line of **reasoning,** that the *baraita* is referring to bundles **whose location** is their distinguishing mark.
‎[16] The Gemara elaborates. **Rabba explains, according to his** line of **reasoning,** that the *baraita* is referring to bundles **with a distinguishing mark:** If one finds **bundles** of grain **in a public area, these** belong **to him due to** the fact
Mishneh Torah, Defilement of Foods
Mishneh Torah, Robbery and Lost Property
Mishneh Torah, Heave Offerings
Shulchan Arukh, Choshen Mishpat
Version: William Davidson Edition - English
Source: https://korenpub.com/collections/the-noe-edition-koren-talmud-bavli-1
License: CC-BY-NC