Gezelah va'Avedah - Chapter 14

The Rambam’s exegesis of these verses is based on the comments of the Sifre and those of Bava Metzia 27a.

Bava Metzia 27a uses the term אוכף, which translates as “saddle,” while the Rambam employs the term מרדעת which is translated as “cushion” or “pack-saddle.” The Noda BiY’hudah, Even HaEzer, Volume I, Responsum 32, focuses on the significance of this change in wording. Bava Metzia, loc. cit., explains that a saddle is not often lent out. A “cushion,” by contrast, says the Noda BiY’hudah, will be lent out. A question thus arises: Why should the donkey be returned when its cushion can be identified? Perhaps the cushion was borrowed. In resolution of this question, the Noda BiY’hudah explains that the Rambam maintains that the acceptability of identification by marks (simanim muvhakim) was ordained by Rabbinic decree. (See Chapter 13, Halachah 5, where this subject is discussed.) According to this approach, our Sages did not negate the identification of an article (or a person) because of a suspicion that an article by which it was identified had been borrowed.

Had the Torah not added this term, we would not require the return of the donkey unless there was an identifying mark on its body.

Even if the sheep grew wool in the possession of the finder, its shearings must be returned to its original owner.

As mentioned in Chapter 11, Halachah 12, a lost article that is worth less than a p’rutah need not be returned to its owner. Nevertheless, although it is possible that the oxtail’s shearing may not be worth this amount, it must be returned. Since the finder is required to return the ox, he is liable to return everything connected with it (Hagahot Maimoniot, Nimukei Yosef, Bava Metzia).

Bava Metzia 27a asks: Since the Torah tells us that the shearing of an oxtail must be returned, why does it mention the necessity to return the shearing of a sheep? Seemingly, this would be self-evident. The Sages do not resolve this question.

If, however, two or more of these articles are lost, the number of articles can serve as a sign of identification, as mentioned in Chapter 13, Halachah 5.

See, however, Halachah 5.

In which instance the owners are likely to assume that it was washed away and will never be returned to them.

In which instance the owners are like to assume that it was found by a gentile, who will not return an article that he discovered. See Chapter 11, Halachah 7.

More precisely, at the time they became aware of its fall.

This ruling is the subject of a difference of opinion between Abbaye and Ravva (Bava Metzia 22b). Although in such situations the halachah ordinarily follows Ravva’s opinion, this is one of the six exceptions, and it is Abbaye’s conception that is accepted as law. See the notes on Chapter 15, Halachah 1.

See Chapter 11, Halachot 1-2, which explains that by taking an article before the owner despairs of its recovery, the finder violates the positive commandment to return it, the negative commandment not to ignore it, and the negative commandment against robbery.
The above applies only when the person sees the money fall from its owner. If he discovers it afterwards, he is allowed to keep it, for we assume that the owner checked his pockets and realized his loss [Shulchan Aruch (Choshen Mishpat 262:3)].

If, however, he returns the money before the owner despairs of its recovery, he is not considered to have violated any of these transgressions (Tosafot, Bava Metzia 26b).

For once the owner despairs of its recovery, he relinquishes his ownership, and the money can become the property of the finder.

See Tosafot (loc. cit.), which states that by returning the money, the finder corrects the violation of the prohibition against robbery. He also fulfills the mitzvah of returning a lost article (Shulchan Aruch HaRav, Hilchot Metziah) The intent is that the prohibition against ignoring a lost object cannot be corrected.

As Rashi states (Bava Metzia 26b), the prohibition against robbery is violated only at the time the person takes the article, and at that time the finder did not intend to take it as his own. For the same reason, he is not considered to have violated the prohibition against ignoring the lost article.

Because a coin does not have a mark by which it can be recognized.

See Halachah 2.

He does not violate the commandment requiring him to return a lost article, or the prohibition against robbery, for these apply only when he takes the article into his possession. At that time, the owner had already despaired of the article’s recovery, thus relinquishing his ownership.

I.e., with regard to all lost objects that do not have marks by which they can be identified.

Of at least a p’rutah in value.

I.e., certainly if the coin dropped from fewer than three people, the finder would be obligated to return it. Even if it dropped from three, he is obligated to do so for the reasons explained by the Rambam.

If, however, the finder knows that the three are not partners, he is not obligated to announce the discovery of the coin (Sefer Me’irat Einayim 262:10).

If, however, the coin is worth less than a p’rutah and a half, there is no obligation to return it, for it is unlikely that two partners will both forgo their share to the third (Rashba, as quoted by the Maggid Mishneh).

The person who dropped the coin will not despair of its recovery, for he will assume that it was found by the people accompanying him (ibid: 11)

See Halachah 4.

The Ma’aseh Rokeach states that this law applies even if the person’s name is engraved permanently upon the coin.

I.e., even if he does not actually give the coin to another person since he has the possibility of doing so, marks on the coin are not accepted as a means of identification.

Bava Metzia 28b interprets this as referring to an instance when a person finds fruit (an object that lacks marks by which it can be identified) next to a container (an object that possesses marks by which it can be identified). (See Chapter 15. Halachot 13-15, where these laws are spelled out.)
The rationale for the Rambam’s ruling is that we assume that the fruits spilled out from the container and thus belonged to the same owner.

I.e., although there are no marks by which the article can be identified, a person can recognize the article as his own.

The Ra’avad states that the announcement must be made only in a house of study or other places frequented by Torah scholars.

The Maggid Mishneh quotes the Ramban as stating that this law applies only if the article is discovered in a house of study. Should it be discovered elsewhere, it may be kept by the finder. The rationale is that even if it was lost by a Torah scholar, he will assume that tl1e finder will think that it was lost by an ordinary person and will not announce its discovery.
In his Kessef Mishneh, Rav Yosef Karo states that the Rambam would not accept this distinction, and in his Shulchan Aruch (Choshen Mishpat 262:21), he ignores it. The Tur and the Ramah, by contrast, quote the Ramban’s view.

Not only a Torah scholar, but any person can recognize an article as his own. Nevertheless, our Sages feared that a person who was not a Torah scholar might not be honest and would falsely claim an article as his own. They did not harbor such suspicions with regard to Torah scholars, for study should affect the character of a student and prevent him from lying to achieve personal gain.

Our translation of the word ותיק is based on the interpretation of the Aruch.

The explanations to follow represent the Rambam’s interpretation of Bava Metzia 23b. Rashi offers different explanations of these concepts.

The laws of ritual impurity resulting from menstruation.

The laws of ritual immersion.

The classic example of such conduct is that of Aharon the priest. If he saw two people quarreling, he would go to one on the following day and tell him how the other had told him how sorry he was over their argument. Then he would hurry to the other person and tel1 him how his colleague had expressed sincere regret over their dispute. And so, when the two people would meet, their bonds of friendship would be renewed (Avot D’Rabbi Natan 12:3). (See also Yevamot 65b and Hilchot De’ot 5:7.)

A Torah Sage is disqualified only when there is conclusive evidence of his dishonesty. Otherwise, our presumption is that he tells the truth.

Note Sefer Me’irat Einayim 262:46, which questions whether this privilege must be granted to Torah scholars in the present age. In this context, he cites several examples of distinctions that were granted to Torah scholars previously, but are no longer applicable.