בבא מציעא 11:1 — Soncino English Talmud

we derive [the law regarding] a found object from [the law regarding] divorce, and the other is of the opinion that we do not derive [the law regarding] a found object from [the law regarding] divorce. And if you wish I will say: As regards a female minor there is no difference of opinion [and all agree] that we derive [the law regarding] a found object from [the law regarding] divorce, but here they differ regarding a male minor: One says: We derive [the law regarding] a male minor from [the law regarding] a female minor, and the other says: We do not derive [the law regarding] a male minor from [the law regarding a female minor]. And if you wish I will say: One deals with one case and the other deals with another case, and they do not really differ [as regards the law]. MISHNAH. IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE [E.G.,] AFTER AN INJURED STAG [OR] AFTER UNFLEDGED PIGEONS, AND SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME', IT DOES ACQUIRE POSSESSION FOR HIM. BUT IF THE STAG RUNS NORMALLY, OR THE PIGEONS FLY [NATURALLY], AND HE SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME,' THERE IS NOTHING IN WHAT HE SAYS. GEMARA. Rab Judah said in the name of Samuel: This is, provided he is present by the side of his field. But ought not his field to acquire it for him [in any case], seeing that R. Jose, son of R. Hanina, said: A man's 'ground' acquires [property] for him [even] without his knowledge? — These words apply only to a [piece of] 'ground' that is guarded, but when [the piece] of 'ground' is not guarded, [then the law is that] if [the owner] is present by the side of his field he does [acquire the property], [but] if [he is] not [present] he does not [acquire it]. And whence do you derive that when [the piece of] 'ground' is not guarded [the owner] does [acquire the property] if he is present by the side of the field, [but that he] does not [acquire it] if [he is] not [present]? — From what was taught: If one stands in town and says, 'I know that the sheaf which I have in the field has been forgotten by the labourers, [and it is my wish that the sheaf] shall not be regarded as forgotten', I might think that it shall not [in any circumstances] be regarded as forgotten: the scriptural verse therefore tells us: And thou hast forgot a sheaf in the field [etc.] implying 'only if thou hast forgotten it [while thou wast] in the field [does the law of the forgotten sheaf apply] and not [if thou hast forgotten it when thou hast returned] to town.' Now, this seems self-contradictory. First you say: 'I might think that it shall not be regarded as forgotten' — from which it would appear that [in fact] it is regarded as forgotten; and then the Gemara concludes: 'Only if thou hast forgotten it [while thou wast] in the field [does the law of the forgotten sheaf apply] but not [if thou hast forgotten it when thou hast returned] to town' — from which it would appear that [in the case discussed] it is not regarded as a forgotten [sheaf]. It must therefore be assumed that what is meant is this: In the field, [i.e.,] if it was forgotten at the outset, [while the owner was still in the field,] it must be regarded as [a] forgotten [sheaf], [but] if it was remembered [by the owner in the field] and was subsequently forgotten [by the labourers] it is not regarded as [a] forgotten [sheaf]. For what reason? Since he was standing near it [in the field, the field] acquires it for him. But [when the owner is again] in town, even if [the sheaf] was at first remembered [by him] and was forgotten later [by the labourers in the field], it must be regarded as [a] forgotten [sheaf]. For what reason? Because he is not there beside it, so that [the field] does not require possession [of the sheaf] for him. But how does it follow? Perhaps it is a Biblical decree that [only that which is forgotten by the owner while he is] in the field shall be subject to the law of the forgotten sheaf, but that [when the owner is] in town [again] the sheaf is no more subject to that law? The Scriptural verse says [further]: Thou shalt not go back to fetch it — this is to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this needed to indicate that disregard of the law involves the transgression of a negative command? — If that were so, the Scriptural verse would only have to say 'Thou shalt not fetch it'. Why does it say: 'Thou shalt not go back'? [Obviously] in order to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this [additional phrase] still required for [the rule] which we have learned: That which is in front of him [who is engaged in reaping] is not [subject to the law of the] forgotten [sheaf]; that which is behind him is [subject to the law of the] forgotten [sheaf], as it is included in the prohibition: 'Thou shalt not go back [to fetch it]'. This is the general rule: All that can be included in the prohibition 'Thou shalt not go back [to fetch it]' is [subject to the law of the] forgotten [sheaf]; all that cannot be included in the prohibition 'Thou shalt not go back [to fetch it]' is not [subject to the law of the] forgotten [sheaf]? — R. Ashi said: The Scriptural verse says: It shall be [for the stranger] etc., so as to include that which has been forgotten [by the owner when he is back] in town. 'Ulla also said: 'This is, provided that he is present by the side of his field'. And Rabbah b. Bar Hanah said likewise: 'This is, provided that he is present by the side of his field'. R. Abba placed before 'Ulla the following objection: It happened once that Rabban Gamaliel and some elders were going in a ship. Rabban Gamaliel then said: The tithe which I shall measure off [when I come home] is given [by me] to Joshua.^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ

^ᵃnote:That just as her 'ground' acts for her as regards a bill of divorcement it also acts for her as regards a found object.
^ᵇnote:Resh Lakish.
^ᶜnote:Divorce is a matter that has to do with the ritual part of the Law, while the claim to a found object is only a matter of money. In regard to the latter the deduction from Ex. XXII, 3, dealing with theft, to include 'ground' may be explained as an extension of the law of agency, i.e., the thief's 'ground' is treated as his, agent and it may be applied to other 'money matters'. The Scriptural indication is however necessary in the case of theft, as otherwise we might have thought that a thief's premises do not act for him, because of the principle that 'there is no agent for a sinful act'.
^ᵈnote:R. Johanan.
^ᵉnote:Which is not indicated anywhere in the Bible.
^ᶠnote:Resh Lakish.
^ᵍnote:Resh Lakish states the law regarding a found object — that it is not acquired by means of one's 'ground' — and R. Johanan states the law regarding a bill of divorcement — that it is acquired by means of one's ground. Or alternatively it could be said that one deals with the case of a male minor, and the other deals with the case of a female minor, and this accounts for the difference in their decision. It may thus be assumed that R. Johanan and Resh Lakish do not differ at all as regards the law as it applies to each case, and that they would both uphold each other's decision.
^ʰnote:The injured stag and the unfledged pigeon cannot move out of the field in which they are found, and will therefore remain there, unless someone takes them away. The field, in these circumstances, acts for the owner and acquires the animal or the birds for him, if the owner expresses his wish in this respect before the others have taken hold of these finds. (V. however, Tosaf a.l.)
^ⁱnote:V. supra. 10b.
^ʲnote:They become his property, and the others have no right to take them away.
^ᵏnote:As the animals or birds are not staying in the field his 'ground' cannot acquire them for him.
^ˡnote:The Mishnaic law that the field acquires for its owner the injured stag and the unfledged birds that are found there.
^ᵐnote:B.K.. 493; infra 102a, 118a; Hul. 141b.
^ⁿnote:As when it is surrounded by a fence.
^ᵒnote:I placed the sheaf there so that the labourers might see it and bring it home.
^ᵖnote:It shall not he subject to the law regarding a sheaf which has been forgotten in the field — the law given in Deut. XXIV, 19: When thou reapest thy harvest in thy field, and hast forgot a sheaf in the field, thou shalt not go back to fetch it etc.
^ᵠnote:I.e., even if the owner himself forgot it subsequently.
^ʳnote:Deut. XXIV, 19.
^ˢnote:[MS.M. 'Talmud', v. infra p. 206, n. 6.]
^ᵗnote:The argument of the Gemara would then be as follows: 'I might think that it shall not be regarded as a forgotten sheaf, The Scriptural verse therefore tells us: And thou hast forgot a sheaf in the field etc., meaning thereby: Only when thou art in the field it is necessary that thou thyself shalt forget the sheaf in order to make it available for the stranger etc., but when thou hast returned to town it is not necessary that thou thyself shalt forget the sheaf: the forgetfulness of the labourers in the field has the same effect as thine own.
^ᵘnote:That the meaning of the verse is as stated, and that the conclusion of the Baraitha is correct (Tosaf.).
^ᵛnote:The emphasis in the verse would then be that the law of the forgotten sheaf only applies to [H] ('in the field') but never to [H] ('in the town').
^ʷnote:Carrying with it the penalty of thirty-nine lashes.
^ˣnote:This phrase is superfluous and thus serves as a basis for this deduction.
^ʸnote:Pe'ah VI, 4.
^ᶻnote:Deut. ibid.
^ᵃᵃnote:'Ulla expressed the same view as Rab Judah expressed in the name of Samuel (v. p. 59. n. 9).
^ᵃᵇnote:Cf. Hor. (Sonc. ed) pp. 70f.
^ᵃᶜnote:Joshua b. Hananiah, who was a Levite and was entitled to receive the first tithe. (Cf. 'Ar. 11b.) Rabban Gamaliel was afraid that if he waited till he returned home he would be too late to perform the duty of tithing for that year. [Or that the members of his household might make use of the produce on the assumption that he had set the tithe aside before his departure, incurring thereby the guilt of eating untithed produce]. According to the view of Rabbenu Tam (Tosaf. a.l. and Kid. 26b) this happened on the eve of the Passover festival of the fourth year, when all the tithe offerings had to be 'put away' (cf. Deut. XXVI, 12ff.)