Gezelah va'Avedah - Chapter 15

In his Kessef Mishneh and his Shulchan Aruch (Choshen Mishpat 260:9), Rav Yosef Karo follows the Rambam’s view. The logic of this position is that if it is possible that the owner of an article placed it down in a certain place, he was willing to take the risk of its being taken. There is no need to do more on his behalf than he himself desired.
The Maggid Mishneh quotes the opinions of the Rashba and the Ramban, who differ and maintain that if the article has a mark by which it can be identified, there are instances when it should be taken. To quote the Ramah (Choshen Mishpat 260:10):
There are three categories:
a) If [the article] was secure where it was placed - e.g., a garment or an axe placed at the side of a wall - if there was a doubt whether it was placed there intentionally or not, it should not be touched....
b) If it is in a place where it is not secure at all - even if it was definitely placed there intentionally -... if it has a mark, he should take it and announce its discovery....
c) If it is in a place where it is somewhat secure, if it has a mark - even if it is possible that it was placed down there intentionally - he should take it and announce its discovery.
The fundamental point of this approach is that when an article is not secure in the place where it is located, even when it could have been placed there intentionally, it is in the interest of the owner that it be taken. Although this might cause the owner some difficulty in recovering it, the article will definitely be preserved. Otherwise, it is possible that it will be taken. The Siftei Cohen 260:24 states that all authorities agree with this latter position.

For by the time the finder took it home and returned, the owner could have returned to the place of the article and seeing that it was taken, abandoned hope of its recovery. Thus, if the finder placed the article in its original place, it is possible that the owner would never come to look for it there again. Therefore, it is preferable that he announce its discovery.
When, however, it appears that the owner intentionally placed the article there, and the finder did not leave the place where the article was located, the finder may return the article to its place. But if there is a doubt whether or not it was intentionally placed there, it should not be returned (Maggid Mishneh; Sefer Me’irat Einayim 260:41).

In this instance as well, the Ra’avad, the Maggid Mishneh and others take issue with the Rambam’s logic. Since it is possible that the finder took possession of it before the owner despaired of its recovery, why is he allowed to keep it as his own? For this reason, these authorities [and the Ramah (loc. cit.)] rule that the lost article must be set aside until the prophet Elijah comes. In both his Kessef Mishneh and the Shulchan Aruch (loc. cit.), Rav Yosef Karo follows the Rambam’s view.
The Radbaz (Volume VI, Responsum 2285) explains the Rambam’s view, maintaining that the Rambam is referring only to an instance when there is a doubt that the owner placed it there intentionally. Although the finder was forbidden to take the article, since he did not definitely violate a transgression, he is allowed to maintain possession.

Based on this and the previous halachah, the intent of this phrase is that if the person erred and took an article that had been intentionally placed down, he is obligated to announce its discovery (Maggid Mishneh).

For it is common practice for an owner of animals to let them pasture freely during the day. If, however, they are found at night, they should be taken and returned to their owners, as stated in the following halachah.

We assume that the owner hid it there temporarily.

Although the Hebrew word בדרך (“in the way”) appears in the standard printed text of the Mishneh Torah, it is most likely a printer’s error. It is not found in the proof-text, nor in the authoritative manuscripts and early printings of the Mishneh Torah.

All these situations indicate that the animal or the object was not intentionally placed there by the owner. See the following halachot and notes for details with regard to animals, and Halachah 7 and notes for details with regard to an article hidden in a garbage heap.

And should be taken and returned to its owner. The very fact that an animal is out at night, even though everything else appears ordinary, is enough to have it considered a lost object.

There are times when a person will take his animals out to pasture earlier than usual or leave them pasturing later than usual. Therefore, on the first two occasions the animal is not considered lost. When, however, the situation repeats itself on three consecutive occasions, we assume that something is amiss and require that the animal be cared for.

We assume that it is running back to its owners (Bava Metzia 31a).

I.e., the cow will eat the twigs from the vines, and damage the plants. In contrast to Halachah 2, we are not, however, concerned about the cow. Since it is grazing in a normal manner, it will not be damaged.

I.e., 2000 cubits from the furthest home.

Thus, if the cow is found within the city’s Sabbath limits, even in the public thoroughfare, one is not obligated to return it. The Tur (Choshen Mishpat 261) states that even if the cow is found in a public domain within the Sabbath limits, and it is likely to be taken by others or to flee, it should be taken and returned. This ruling is quoted by Shulchan Aruch (Choshen Mishpat 261:3).

The Maggid Mishneh (based on Bava Metzia 32a) states that this law applies even if the barn or pasture-land is beyond the city’s Sabbath limits. The Tur differs and states that if the barn or pasture-land is beyond the Sabbath limits, the cow should be taken and returned. The Ramah concludes his discussion of the matter with a practical directive: If the cow is likely to be taken by another person, it should be taken and its discovery announced.

For it is customary for workers to leave their articles in such a place (ibid. 31b).

For no one will purposefully leave an article in a thoroughfare.

For since they are tied in a standard manner and are hopping from place to place, there is no mark of identification for them. As mentioned in the notes on Halachah 1, there are authorities who differ with the Rambam’s ruling and maintain that the doves should be set aside until the prophet Elijah comes. See Ramah (Choshen Mishpat 260:10).

According to the Rambam, this applies when the finder transgressed and took them. According to other authorities, this applies when it is questionable if they were placed there intentionally, and the place where they are located is not entirely secure.

In contrast to those mentioned in the first clause, which were hopping.

Halachah 2. This is speaking about a garbage dump that is not usually cleared away. If it is found in a garbage dump that is usually cleared, according to the Rambam’s opinion (see Chapter 11, Halachah 11), one is not allowed to take it. According to the Tur and the Ramah (Choshen Mishpat 260:11), the article is considered ownerless and may be taken by the finder.

Otherwise, when he clears the garbage dump, the article will be lying in the open and may be taken by any passerby.

For it is likely that they were accidentally thrown out of a person’s home with the garbage, rather than buried there intentionally.

The Tur (Choshen Mishpat 262) questions the Rambam’s ruling, because Bava Metzia 21a rejects an interpretation of “scattered fruit” in the Mishnah (Bava Metzia 2:1), which parallels that offered by the Rambam, and instead interprets it as referring to grain left over on the threshing floor. (See Halachah 12.)
In his Kessef Mishneh, Rav Yosef Karo explains the Rambam’s ruling, stating that the Talmud’s rejection of the interpretation quoted by the Rambam applies only in the initial stages of the argument. According to the final resolution of the subject, this interpretation can be accepted. Accordingly, he accepts the Rambam’s ruling. Sefer Me’irat Einayim 262:15 questions why the Ramah does not quote the Tur’s opinion.

In contrast to the larger sheaves mentioned in Halachah 10, the loss of smaller sheaves of this nature may not be realized by the person carrying them. Also, they can be kicked from place to place by animals. Thus, the place in which they are found is not considered a valid mark of identification.

I.e., all these are standard items that will not usually have distinctive markings by which they can be identified.

As long as the mark remains intact, it can be used to identify the article. We do not say that since the owner knows that ultimately the mark will be obliterated, he will despair of the article’s recovery at the outset.

Which are distinct and can thus be identified.

The seal on the jug was signed and thus can serve as a mark of identification.

For the wholesale sale of these products.

The Ra’avad agrees with the Rambam’s ruling, but gives a different rationale. Since the mark is standard, it will be known by all. Thus, a deceiver who wants to claim the jug will also be able to identify it. Therefore, the person who loses it will despair of its recovery.
The Ra’avad, Tur and the Ramah (Choshen Mishpat 262:9) state that this law applies only at the river bank when a large quantity of similar jugs are unloaded at the same time. In other places, the seal on a jug can serve as a mark of identification.

Since they are light, the person who lost them will not know whether he dropped them in a private domain or a public domain. Hence, the place where they are located cannot serve as a mark of identification. Since they do not have any other marks by which they can be identified, the owner will despair of their recovery. Therefore, they may be kept by the finder.

I.e., at the outset, he should not take them, but if he erred and took them (see Halachah 1), he must announce their discovery.
This is the Rambam’s intent when using the phrase “he must announce their discovery.” When, by contrast, he uses the phrase “he should take them and announce [their discovery],” the intent is that, at the outset, the finder is obligated to take the lost objects and announce their discovery. See, however, the commentary of the Or Sameach mentioned in the following notes, which offers a different interpretation.

I.e., the person who placed them down can identify them by saying where they were discovered. Since they were in a private domain, we do not fear that they were kicked from place to place by passersby.

The Maggid Mishneh questions the wording of this phrase. For if an object’s location is not an acceptable mark of identification, why should it be returned to the finder on this basis? Moreover, in Chapter 13, Halachah 5, the Rambam explicitly says that location can serve as a mark of identification. For this reason, the Maggid Mishneh and others maintain that this phrase is a printing error and should be deleted.
There are, however, authorities - e.g., the Kessef Mishneh - who attempt to resolve the Rambam’s wording. See the Or Sameach, who explains that although the location of the article is an acceptable mark of identification, it is not a desirable one, especially in this instance, where the sheaves can be kicked from place to place. Therefore, rather than leaving the sheaves in their place, as is done with most articles that are intentionally placed down, the finder should take them and announce their discovery.

I.e., even if the sheaves were dropped in the public domain, since they are large, they will be noticed by their owner, and the place in which they fell can serve as a mark of identification. Moreover, because of their size, we do not worry about their being kicked from place to place.

Rabbenu Asher and the Tur reject the Rambam’s ruling on these two points, explaining that it is likely that the shard accidentally fell into the figs, and the coin accidentally fell into the dough. In his Shulchan Aruch (Choshen Mishpat 262:15), Rav Yosef Karo quotes the Rambam’s ruling, while the Ramah quotes that of the Tur. In his Kessef Mishneh, Rav Karo explains that the difference reflects a textual difference in the versions of Bava Metzia 23a, b available to the various Sages.

E. g., in a triangular form (Bava Metzia 23b).

I.e., after the owners took their produce home. The question is whether the owners abandoned the remaining produce intentionally, or they intended to return and collect it.

A kav is approximately 1800 cubic centimeters according to Shiurei Torah, and 3100 cubic centimeters according to Chazon Ish.

A cubit is approximately 48 cm according to Shiurei Torah and 57.6 cm according to the Chazon Ish.

Who intended to return and collect it.

Although the area is one fourth the size, since the amount of produce is less, we are not sure whether or not it is significant.

In this instance, there is a larger quantity of produce, but an area four times the size.

The Tur and the Ramah (Choshen Mishpat 260:7) state that a similar ruling applies with regard to even a kav of any one of these types of produce.

Although the fruit itself is standard, the number of fruits or its location can serve as a mark of identification.

In both these instances, the container is likely to have a mark by which it can be identified.

See the illustration of this concept in the following halachah, and see Chapter 14, Halachah 11.

Which curls inward.

For it is apparent that the produce fell from the container.

Our translation is based on the Rambam’s Commentary on the Mishnah (Ma’asrot 3:4), which interprets קציעות as “berries cut off from any tree.” This interpretation also enables us to understand why he rules differently regarding קציעות and figs in Hilchot Ma’aser 3:21 and 3:24. The Maggid Mishneh, the Shulchan Aruch (Choshen Mishpat 260:6), and others rely on Rashi who interprets this halachah as speaking about figs.

And we could assume that they fell from that field.

These berries have a certain amount of value. Hence, they will be watched by their owner. He will notice their loss and will despair of their recovery before they are picked up by a finder (Bava Metzia 21b).

Olives and carobs have a thicker skin than berries (or figs) and will not become repulsive when they fall to the ground.

The owners know that the wind will blow a certain portion of the dates from the tree. Unlike the olives and carobs mentioned in the previous halachah, the dates are likely to be eaten by animals because of their sweetness. The owners are aware of this and, therefore, at the outset, they forgo their ownership over this fruit (Bava Metzia 22b).

According to Jewish law, a minor can acquire property, but he cannot transfer ownership to another person.

This law also applies to the berries (figs) mentioned in the previous halachah. See Sefer Me’irat Einayim 260:26.

Our text of Bava Kama 86a speaks of a cat that “cut off the arm of an infant.” As reflected in the Maggid Mishneh and in ancient manuscripts of the Talmud, the Rambam probably possessed a version of the text that speaks of a cat “kill[ing] an infant.” The Shulchan Aruch (Choshen Mishpat 266:4) follows our reading of the Talmud and therefore speaks of a cat that “maims children.”

The Ramah (Choshen Mishpat 260:8) emphasizes that all the laws to follow apply only with regard to young doves that cannot fly. If they can fly, we assume that they came from an outside place and the finder may acquire them.

Thus, we assume that the dove was dropped by a passerby. Since it does not have a mark by which it can be identified, or alternatively, because most passersby are gentiles, it may be acquired by its finder. See Sefer Me’irat Einayim 260:32; Tosafot Yom Tov; Siftei Cohen 260:22.

And within 50 cubits of each.

This is a principle applicable with regard to other points of Torah law as well, as reflected in Hilchot Rotzeach 9:6 and Hilchot Issurei Bi’ah 10:13; 12:28.