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by: Rabbi Yechezkel Khayyat
The Gemora asked what amount of produce is considered scattered, and Rabbi Yitzchak answered that the limit is a kav of produce in an area of 4 square amos. The Gemora then proceeds to challenge the premise of the discussion, saying that if the produce was purposely placed, any amount should not be taken, and if the produce was dropped, any amount should be taken. The Gemora explains that Rabbi Yitzchak was discussing a case of one leaving leftover produce after threshing, and not a standard case of lost produce.
Tosfos (21a v’kama) explains that Rabbi Yitzchak was the one who asked the question, and therefore the Gemora challenges the premise of the question itself. Rabbi Yitzchak did not understand the Mishna as a case of produce that was left by accident, since he holds like Abaye on the issue of yeush shelo midaas. Therefore, if the scattered produce was a standard lost item, the finder could not take it, since the owner may not have realized the loss and despaired.
The Rambam (Gezeila v’aveida 15:8), however, rules that if scattered produce was dropped, the finder may keep it.
The Tur (HM 262) challenges this ruling, since we follow Abaye, and therefore should not allow the finder to take the scattered produce.
The Ramban explains that Rabbi Yitzchak felt compelled to limit the case of the Mishna to the leftover grain on the threshing floor, only before the Gemora deflected the later cases of the Mishna with the statement that one immediately realizes the loss of heavy items. Once the Gemora introduced the concept that one immediately realizes the loss of a heavy item, this will allow us to apply the Mishna’s statement of scattered produce to a standard lost item as well.
Two Halves make a Whole?
The Gemora questioned how to apply Rabbi Yitzchak’s measure to other situations. The first set of cases are different measures – instead of one kav in 4 amos, there are ½ a kav in 2 amos, or 2 kavs in 8 amos. Tosfos (21a chatzi) asks why the Gemora considered these different than the case of 1 kav in 4 amos. If Rabbi Yitzchak is indicating that the grain owner does not consider the cost of collecting produce over 4 amos in order to earn 1 kav to be worthwhile, the same cost benefit ratio applies to half that amount or double that amount. Tosfos points out that a kav in 4 amos is just two subareas, each one of ½ a kav in 2 amos. If one would consider it worth the effort to collect the ½ kav in 2 amos, he would do the same for a kav in 4 amos. Tosfos offers two answers:
- Psychologically, one is overwhelmed by a large job more than by a smaller job, even when proportionally the cost benefit ratio is the same. When one sees a manageable area of 2 amos, he will consider the job easily done, and worthwhile, and therefore do it. When he sees a larger absolute area of 4 amos – even with proportionally the same benefit for the work in terms of produce – he will consider the job too large, and abandon it. [One may take a lesson for heavenly matters, that the key to accomplishing large tasks is to isolate them into smaller steps, so as not to become overwhelmed and discouraged.]
- The areas discussed are always in square amos. Therefore, the case of ½ a kav is in 2 square amos, which is only a quarter of 4 square amos. The Gemora was asking whether the smaller area compensates for the less produce.
Taiku in Lost and Found
The Gemora leaves the further scenarios of Rabbi Yitzchak’s case unresolved as a taiku. A taiku is considered a bona fide doubt in halachah, and the general rules of doubtful situations apply.
The Rishonim disagree on how to deal with such a doubt regarding a lost item. Rosh says that one should be stringent, and take the item and announce its loss to find the owner. The Rambam (Gezeila v’aveida 15:12) rules that one should treat the doubt with passivity. The finder should not take the item, since it may not be a lost item, or it may be an item that he can keep.
The Noda Be’yehudah explains that the Rosh does not consider a finder to be in possession of the lost item, and therefore the standard rules of doubt applies, and the finder must be stringent. However, the Rambam considers the finder to be in possession of the item once he took it, and therefore, he need not announce it, since in monetary halachah, one who tries to remove an item from its current possession has the burden of proof. The finder can maintain that he is allowed to keep it, and the owner must prove otherwise. The Noda Be’yehudah maintains that even the Rambam does not allow the finder who took the item to use it. He must keep it in escrow until Eliyahu Hanavi comes.
Yeush Shelo Midaas
The Raavad suggests that the dispute of Abaye and Rava is simply a dispute over bereirah – retroactively applying a clarification. Since we know the owner will despair on discovering his loss, Rava says bereirah allows us to consider him despaired now, while Abaye hold that bereirah is not effective, and the despair can only take effect at the time of discovery.
The Ritva disagrees, and says that Rava considers the item despaired, even if the owner never does despair. The situation of an item for which there truly is no hope of recovery is sufficient, even if the owner never reaches this realization. See Chidushei Rabbi Shimon Shkop (BM 20) for further discussion of the mechanism of yeush and why Abaye requires it to be actualized to be effective.
The Gemora explicitly discussed, according to Abaye, why five out of the ten items in the Mishna are taken by the finder. The Gemora omitted:
- Bundles of grain, when found in the street
- Fish, hanging off a string
- Meat slices
- Standard bundles of wool
- Bundles of linen
The Rosh (siman 2) says that fish and meat are important items (like coins), since they are food, and we assume their owner is constantly checking for them. Bundles of linen and wool are expensive items, and one will also constantly check them. Our text of the Gemora says that loaves of bread and pressed figs are heavy, and their owner therefore immediately realizes their loss.
The Gra suggests the Rosh had a text in our Gemora that explained that loaves of bread and pressed figs are important. The Rosh understood this to be due to their being food items, and applied this to meat and fish. The Rosh then applied the concept of money, with its intrinsic value, to the bundles of wool and linen. The Gra explains, based on Tosfos (21a krichos) that bundles of grain are a case where we assume the owner placed them there on purpose and forgot them there, and will realize his loss immediately.