Gezelah va'Avedah - Chapter 16

Our translation is based on the Rambam’s Commentary on the Mishnah. The Maggid Mishneh and others interpret the word differently.

This refers to items that appear to have been placed down intentionally. If these articles appear to have fallen, their number is not considered an effective means of identification (Sefer Me’irat Einayim 262:32).

For these are standard articles that do not have a mark by which they can be identified.

Note the Kessef Mishneh, which questions why two needles are considered a mark of identification, and not two coins. The Darchei Moshe, Choshen Mishpat 262 and the Merkevet HaMishneh distinguish between the two as follows. Coins are frequently carried by people. Thus, if several are found together, it is not considered an adequate mark of identification, for they could have fallen together accidentally. Hence, it is necessary for them to be piled together in a specific way. Needles, by contrast, are not frequently carried.

I.e., with regard to all the instances mentioned in this clause, one can clearly see that the coins were intentionally placed down. Therefore, their discovery should be announced, and the number of the coins and/or their formation can serve as a mark of identification.

Bava Metzia 25a mentions a difference of opinion among our Sages if the intent is three coins of the same size piled upon each other or three coins of different sizes, with the largest coin on the bottom and the smallest coin on top. The Ramah (Choshen Mishpat 262:12) quotes the latter view.

I.e., like a triangle.

According to our text (and Rashi’s interpretation) of Bava Metzia 25a, the question of “like steps” is resolved, and it is considered a mark. The Rambam, however, apparently had a different version of the text.

We are not certain whether these formations indicate that the coins were intentionally placed there and can therefore serve as marks of identification. Therefore, at the outset, one should not take the coins, because their owner will not have a proper means of recovering them. If, however, one did take them, they may be kept.

This halachah follows the same principles as Chapter 15, Halachot 12-13.

For we presume that he dropped it.

The Tur (Choshen Mishpat 260) differs with the Rambam and maintains that from Bava Metzia 26b, one can conclude that money left on the counter belongs to the store owner. The rationale is that a money-changer’s clients will often place their money on his counter, but the purchasers who frequent a store are less likely to do so.
In his Kessef Mishneh, Rav Yosef Karo defends the Rambam’s position, and he cites this ruling in his Shulchan Aruch (Choshen Mishpat 260:5). The Ramah cites the Tur’s position. Kin’at Eliyahu explains that the question is one of fact and not theory, and depends on the structure of a store and the habits of its customers.

For we presume that it was dropped by one of the customers.
The Maggid Mishneh states that this applies even to an object with a mark by which it can be identified, provided the majority of the store’s clientele are gentiles, as explained in the following halachah.
He also mentions an interpretation (which is shared by Rabbenu Asher) that maintains that even if the majority of the store’s clientele are Jewish, and the money has a mark by which it can be identified, it can be kept by the finder. The rationale is that unlike a moneychanger whose store was merely a business location, a storekeeper would generally dwell on the premises of his store. Thus, the person who lost the money will presume that the storekeeper will find the money, but the storekeeper will keep it for himself. For he can always rationalize his failure to announce its discovery by saying that it was found by an unethical person.
Sefer Me’irat Einayim 260:17 states that the Rambam and the Shulchan Aruch (Choshen Mishpat 260:5) follow the first view mentioned by the Maggid Mishneh. The Siftei Cohen 260:19 states that this approach is also shared by the Ramah.

For a person’s domain can acquire property on his behalf even when he is not conscious of its presence (Bava Metzia 11a). For example, if an article is placed in a person’s home, he acquires it.

Because of the presence of the customers, the owner is not in full control of what goes on in his store.

Chapter 17, Halachah 8.
The Ra’avad differs and maintains that even if the storekeeper were to say: “may my store acquire it for me,” he would not acquire the property, because:
a) there is no way of knowing whether the customer who dropped the money despaired of its recovery;
b) יאוש, abandoning hope of an object’s recovery, is effective only with regard to a lost object, but not with regard to an object entrusted for safekeeping. Money left in a person’s store would be placed in the latter category.
The Maggid Mishneh accepts the first of the Ra’avad’s objections, but rejects the second, for this money appears similar to other lost objects. The acceptance of the first objection is also reflected in the wording of the law chosen by the Shulchan Aruch (Choshen Mishpat 260:5). See Sefer Meirat Einayim 260:18.

Our translation of כסא follows the Rambam’s Commentary on the Mishnah.

This follows the same principles mentioned in the previous halachah.

As stated in Chapter 14, Halachah 4, since most of the people who frequent the place are gentiles who will not return the lost article if they discover it, the owner will despair of its recovery even if it has a mark by which it can be identified.

If, however, there is no mark by which the money can be identified, it may be kept by the finder even if most of the clientele are Jewish.

The manner in which the purse is tied serves as a mark of identification.

In this instance as well, the manner in which the purse is tied serves as a mark of identification.

For they do not have a mark by which they can be identified.

I.e., the permission to keep the money that was found.

A merchant purchases produce from many individuals and the purchaser has no way of knowing from whom which batch of produce was taken. Hence, he may keep the money as his own.

A Canaanite servant or maidservant does not have any independent financial capacity. Any money they possess belongs to their master.

For the finder can be reasonably certain that the money belongs to the person who sold him the produce. The seller, moreover, does not despair of the recovery of the money, even though it does not have a mark by which it can be recognized, because he knows the person to whom the money was sold.
The Maggid Mishneh and the Ramah (Choshen Mishpat 262:17) state that if a merchant finds money in produce that he purchased from a private person, he is not obligated to return it, even if he knows the identity of its owner. For the owner will despair of the money’s recovery when he realizes that it was sold to a merchant who will mix it together with other funds.

The Shulchan Aruch (Choshen Mishpat 260:1) interprets this as referring to a wall that we do not know who built, and was not an ancestral heritage of the person to whom it presently belongs.

A Canaanite nation that lived in Eretz Yisrael before its conquest by the Jews.

Our translation reflects the Rambam’s interpretation of Bava Metzia 25b. Our text of that passage is slightly different. According to it, the treasure must appear rusted and aged. This interpretation is quoted by the Shulchan Aruch (loc. cit.), although it as well as Sefer Me’irat Einayim 260:3 and the Siftei Cohen 260:3 also make reference to the Rambam’s view.

And the owner intends to collect it in the future. Therefore, it should not be taken by the finder, as stated in Chapter 15, Halachah 1.

Chapter 17, Halachah 8.

See Chapter 14, Halachah 4.

The Ra’avad differs with the Rambam regarding the rationale for this ruling, for he states that the Rambam’s logic can be disproved. With regard to the article washed away by the sea, there is no one to acquire it, but this article buried in the wall can be acquired by its owner. He therefore explains that the reason why the owner does not acquire the article is that he does not have complete control over his courtyard; it is not a חצר המשתמרת.
The Merkevet HaMishneh and others defend the Rambam’s logic. They explain that even though the owner of the courtyard can legally acquire the article, in actuality it is impossible for him to do so, for he has no knowledge of it at all and no immediate access to it. Thus, it is further removed from his mind than an object washed away by the sea.

The Maggid Mishneh questions why, in such a situation, the finder is allowed to keep an article that has a mark by which it can be distinguished. He gives two explanations: a) since the article has been left there for an extended period of time, it appears that the owner has forgotten about it and despaired of its recovery; b) since the article faces the public domain, it can be taken by other passersby. Therefore, in a city inhabited n1ostly by gentiles, there would be no need to announce this discovery.

The general rule with regard to buried articles is stated in the following halachah. When, however, the nature of the article clearly indicates who placed it there, the general rule is not followed. For example, a knife is always held by its handle. Therefore, even if it is found on the outer side of the wall, if its handle is toward the inside, we can assume that it was placed there by the owner.

I.e., a purse is always held by its opening. Therefore, even if it is found closer to the inner side of the wall, if its opening is facing the outer side, we can assume that it was placed there by a passerby.

Based on the Maharam of Padua, Rav Yosef Karo explains in both his Kessef Mishneh and his Shulchan Aruch (Choshen Mishpat 260:1) that this is a printing error, and interprets this clause as referring to the following halachah. The Radbaz (Vol. V, Responsum 1664) and the Bayit Chadash differ and maintain that there is no printing error, and the Rambam’s words should be interpreted within the context of this halachah.

This expression indicates that the law that follows is a conclusion reached by the Rambam without the support of an explicit Rabbinic source from the Talmudic period.

I.e., he himself does not know whether or not his ancestors owned the article.

I.e., it never belonged to him or to his family.

Although the article was found in the portion of the wall closest to the house, since the owner did not claim it as his own, he does not acquire it by virtue of his domain. Since the hole in the wall is open to the public domain, the owner is not considered as having control over his own domain, and thus the presence of an article in that domain is not sufficient to establish ownership (Maggid Mishneh).

I.e., because when an owner does not have control over his own domain, the presence of an article in that domain is not sufficient to establish ownership (Maggid Mishneh; Sefer Me’irat Einayim 260:8).

If he is Jewish (Sefer Me’irat Einayim 260:10). If he is gentile, the article belongs to the finder (Siftei Cohen 260:11).
The Siftei Cohen makes two other points: a) if the owner dwells together with his guests, he is considered the last resident, and the article is awarded to him; b) if the article has marks by which it can be identified, the finder should not take it for himself, but instead, announce its discovery.

Note Sefer Me’irat Einayim 260:11 and the Siftei Cohen 260:12, who question whether the intent is three people, or the same laws would apply even when fewer than three are involved.

The Ra’avad and Rabbenu Asher maintain that, based on Bava Metzia 26b, this law applies even if three Jews are involved. The Maggid Mishneh explains that with regard to three Jews, the Rambam follows the opinion that perhaps they are partners.
The Shulchan Aruch (Choshen Mishpat 260:3) quotes the Rambam’s view. Sefer Me’irat Einayim 260:11 mentions the other view.

I.e., since many people are passing through it, a person who left an article buried there will assume that it was taken by those who came afterwards.