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1 ‎[1] With regard to one’s **despair** of recovering his lost item **that is not a conscious** feeling, i.e., were he aware of the loss of his property, he would have despaired of its recovery, but he was unaware of his loss when the finder discovered the item, **Abaye said: It is not** considered **despair;** the owner maintains ownership of the item, and the finder may not keep it. **And Rava said: It is** considered **despair** and the finder may keep it.
‎[2] The Gemara limits the scope of the dispute. **In** the case of **an item on which there is a distinguishing mark, everyone agrees** that despair that is not conscious **is not** considered **despair. And even though we hear that he ultimately despairs** of recovering the item, it is **not** considered **despair, as when** the item **came into** the **possession** of the finder, it was **in a prohibited** manner **that it came into his possession.** It is prohibited **because when** the owner **learns that it fell from his** possession, **he does not despair** of its recovery immediately. Instead, **he says: I have a distinguishing mark on** the item; **I will provide the distinguishing mark** to the finder, **and I will take** it.
‎[3] With regard to an item swept away **by the tide of the sea or by the flooding of a river, even though** the item **has a distinguishing mark, the Merciful One permits** the finder to keep **it as we seek to state below,** later in the discussion.
‎[4] **When they disagree,** it is **with regard to an item in which there is no distinguishing mark. Abaye said:** Despair that is not conscious **is not** considered **despair, as he did not know that** the item **fell from him;** therefore, he cannot despair of recovering it. **Rava said:** Despair that is not conscious **is** considered **despair, as when he discovers that it fell from him, he will despair** of its recovery; as **he says** upon this discovery: **I have no distinguishing mark on** the item. Therefore, it is considered **from now,** when the item fell, **that he despairs.**
‎[5] The Gemara proceeds to cite a series of proofs for and against the opinions of Abaye and Rava and provides **a mnemonic** representing those proofs: ***Peh*, *mem*, *gimmel*, *shin*; *mem*, *mem*, *kuf*, *gimmel*, *tet*, *yod*; *kaf*, *kaf*, *samekh*, *ayin*, *zayin*.**
‎[6] The Gemara suggests: **Come** and **hear** a proof from the mishna: If one found **scattered produce,** it belongs to him. The Gemara asks: Why does it belong to him; **isn’t** the owner **unaware that they fell from him?** Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: **Didn’t Rav Ukva bar Ḥama say: We are dealing with kernels of wheat that remained during** the **gathering** of grain **on the threshing floor?** The owner knowingly left the kernels on the threshing floor because it was not worth his while to gather them. **That is a deliberate loss,** and therefore the despair is conscious. Therefore, this clause in the mishna is not relevant to the dispute in question.
‎[7] The Gemara suggests: **Come** and **hear** a proof from the mishna: If one found **scattered coins, these** belong **to him.** The Gemara asks: **Why** do they belong to the one who finds them; **isn’t** the owner **unaware that they fell from him?** Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: **There too,** it is not a case of unconscious despair, **in accordance with** the statement **of Rabbi Yitzḥak, who says: A person is prone to feel his** money **pouch constantly. Here too, a person is prone to feel his** money **pouch constantly;** therefore, it is reasonable to assume that shortly after the coins fell, the owner became aware of his loss.
‎[8] The Gemara suggests: **Come** and **hear** a proof from the mishna: If one found **round cakes** of pressed **figs or baker’s loaves, these** belong **to him.** The Gemara asks: **Why** do they belong to the one who finds them; **isn’t** the owner **unaware that they fell from him?** Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: **There too,** it is not a case of unconscious despair. **Since** these items **are heavy he knows** that **they** fell, and it is reasonable to assume that shortly after they fell the owner became aware of his loss.
‎[9] The Gemara suggests: **Come** and **hear** a proof from the mishna: If one found **strips of purple wool, these** belong **to him.** The Gemara asks: **And why** do they belong to the one who finds them; **isn’t** the owner **unaware that they fell from him?** Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: **There too,** it is not a case of unconscious despair. **Since they are significant** and valuable, the owner **feels** around **for them** to ensure that they are not lost, **and** therefore, it is reasonable to assume that shortly after the strips fell, the owner became aware of his loss. This reasoning is **in accordance with** the statement **of Rabbi Yitzḥak** with regard to coins.
‎[10] The Gemara suggests: **Come** and **hear** a proof from a *baraita*: In the case of **one who finds coins in synagogues, and in study halls, and in any place where the multitudes are found, these** coins belong **to him due to** the fact **that the owners despair of their** recovery. Why do they belong to him; **isn’t** the owner **unaware that** the coins **fell from him? Rabbi Yitzḥak says: A person is prone to feel his** money **pouch constantly;** therefore, it is reasonable to assume that shortly after the coins fell, the owner became aware of his loss.
‎[11] The Gemara suggests: **Come** and **hear** a proof from a mishna (*Pe’a* 8:1): **From when is it permitted** for **any person to** collect **gleanings,** which the Torah designates as exclusively for the poor (see Leviticus 19:9–10)? It is permitted **once the *nemushot* have walked in** the field. **And we say** in interpreting the mishna: **What are *nemushot*? And Rabbi Yoḥanan said:** They are the **elderly people who walk** leaning **on a cane.** Since they walk slowly, they will see any stalks that remain and take them. **Reish Lakish said:** They are the second wave of **gleaners** who pass through the field **after** the initial **gleaners,** collecting any stalks that remain.
‎[12] The Gemara asks: **And why** is it permitted for any person to take the stalks, given that **although the poor who** are **here renounce ownership** of the stalks after seeing the *nemushot* pass through the field, **there are poor** people **in another place who** are unaware of the passing of the *nemushot* and **do not renounce ownership?** Apparently, despair that is not conscious is considered despair. The Sages **say** in rejecting that proof: **Since there are poor** people **here, those** poor people in the other places **despair** of the gleanings **from the outset, and they say:** The **poor** people **who** are **there gather** the gleanings.
‎[13] The Gemara suggests: **Come** and **hear** a proof from a mishna (*Ma’asrot* 3:4): If **dried figs** are found **on the path, and even** if they were found **at the side of a field** where **dried figs** are spread to dry, **and likewise,** if there is **a fig** tree whose branches **extend over a path and one found figs beneath it,** those figs **are permitted** and taking them is not prohibited **due to** the prohibition of **robbery. And** as these are ownerless property, one who finds them is **exempt from** the obligation to separate **tithes.** In the case **of olives or of carobs,** it is **prohibited** to take the fruit.
‎[14] **Granted, the first clause** of the mishna is **not difficult according to** the opinion of **Abaye,** as he can explain that one consciously despairs of recovering the dried figs. **Since** dried figs **are significant** and valuable, **one feels** around **for them** to ensure that they have not become lost. It is reasonable to assume that shortly after the fruits fell, the owner became aware of his loss and despaired of recovering them. In the case of the **fig** tree, **too, one knows that** it is a common occurrence for the fruit of the fig tree to **fall** from the tree and he renounces ownership from the outset.
‎[15] **But the latter clause** of the mishna is **difficult according to** the opinion of **Rava, as it teaches:** In the case **of olives or of carobs,** it is **prohibited** to take the fruit. Apparently, despair that is not conscious is not considered despair. **Rabbi Abbahu said:** The *halakha* of **an olive is different, since its appearance proves** the identity **of** the owner, as the fruit fallen from the tree appears similar to the fruit on that tree, **and even though the olives fall** off the tree, the one who finds the olives **knows** that an olive tree that is located in **a place that** is owned by a specific **person** belongs to that **person** and the owner will not renounce ownership of his fruit.
‎[16] The Gemara asks: **If so,** then **even** in the **first** clause **as well,** it should be prohibited to take the fruit that fell from the fig tree. **Rav Pappa said: A fig becomes disgusting with its fall** from the tree. Even if the fruit can be attributed to the tree of origin, since it is no longer fit for consumption, the owner would not want the fruit and consequently renounces his ownership of it.
‎[17] The Gemara suggests: **Come** and **hear** a proof from a *baraita*: **A thief who took** an item **from this** person **and gave** it **to that** person, **and likewise, a robber who took** an item **from this** person **and gave** it **to that** person,
Mishneh Torah, Robbery and Lost Property
Mishneh Torah, Gifts to the Poor
Shulchan Arukh, Choshen Mishpat
Version: William Davidson Edition - English
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