BM 26a

BM 26a: Items found in rubble or walls, items left by renters, Ma'aser (tithe), items dropped by one person in a group.

We begin at the mishna near the bottom of 25b.


If one finds items in a pile of stones (Rashi: from a collapsed wall) or in an old wall, they belong to him (the finder, even if the items had an identifying mark). In (a hole going all the way through) a new wall: From the centerline of the wall out (to the outside public area), it belongs to the finder (since the item was presumably lost); from the centerline to the inside (the side of the wall facing private property), it belongs to the owner of the house. If he (the owner) rented the house to others, even if (items were found) inside the house, they belong to the finder (since there is no way of knowing which renter left the item there).


A b'raita taught (the rationale for the mishna's ruling on items found in a pile of stones or an old wall): Because the finder may say to the owner (these items) belonged to the Emorites (inhabitants of Israel before Joshua's conquest).

But are Emorites the only ones who stored items in walls? Don't Jews do that too? [i.e., why assume such ancient provenance? Why not assume a much more recent origin, and require that the finder announce his find?]

No. The mishna's ruling is necessary in the case of a very rusty item. [It might appear that the mishna's distinction between old and new walls is based on whether the wall was built before or after Joshua's conquest. Very few walls that were that old sur vived until mishnaic times, so virtually any wall that was not in ruins woud have to be classified as "new". The Rosh proposes a diferent criterion: A wall is "new" only if it was built by its present owner or by his ancestors, and remained in the family' s uninterrupted possession ever since. Otherwise, the presumption that is that any item found in the wall was lost by someone else.]

The mishna said: In (a hole going all the way through) a new wall: From the centerline of the wall out (to the outside public area), it belongs to the finder (since the item was presumably lost); from the centerline to the inside (the side of the wall fac ing private property), it belongs to the owner of the house.

Rav Ashi said: (Ownership of) a knife is determined by its handle, and of a purse by its straps (i.e., if a knife is found with its handle towards the private property, we must assume that it was inserted by the property owner, but if the handle was towar ds the public side of the wall, we can assume that it was placed there by someone from the outside).

But our mishna says that if it was from the centerline outward it belongs to the finder, and if it was from the centerline inward it belongs to the owner of the house. (Why not follow Rav Ashi's rule) and see if the handle was towards the inside or the ou tside, whether the straps were towards the inside or the outside?

Our mishna is dealing with a wad (of cloth) or a bar (of silver) (cases in which there are no indications of direction of insertion).

A b'raita taught: If the lost items fill the wall , they (the finder and the owner of the wall) divide them. Isn't that obvious? No, the b'raita's ruling was necessary where (the wall) was tilted to one side (so that the hole was slanted). You might assum e (that all the items were placed in the upper part of the hole) and slipped down (so that whoever had rights to items in the upper part of the hole could claim all the items). Therefore, (the b'raita) informs us (that the items are equally divided). bm 2 6a.2 (about 10 lines from the top, at the two dots):

The gemara cites our mishna: If (the homeowner) rented (the house) to others, even items found inside the house belong to the finder (presumably because we cannot be certain which renter had lost the item).

Why? Let us follow (i.e., attribute ownership to) the latest (renter)?

[The gemara will now bring supporting evidence from a mishna in Shekalim that deals with money found in Jerusalem. According to the Torah, produce grown in Israel must be tithed. The first tithe is given to a Levite. A second tithe (a tenth of the tenth) is separated on years 1, 2, 4, and 5 of each 7-year Shmita (Sabbatical) cycle. This second tithe must be eaten in Jerusalem, or sold, in which case the money has the sanctity of Second Tithe (Ma`aser Sheni), and must be spent on food eaten in Jerusalem. I f a person's Ma'aser Sheni was too much to be eaten during one's short stay in Jerusalem, the money would be given to one's friends or to the poor, who would use it to buy food to be eaten in Jerusalem. (The second Ma'aser is not waived in years 3 and 6; Ma'aser Ani [the Poor Person's Tithe] must must be given to the poor, and can be eaten by them anywhere.)]

[The Mishna and the Talmud Yerushalmi (Jerusalem or Palestinian Talmud) both have tractates devoted to Ma'aser. In the Bavli (the Babylonian Talmud, which we are studying), this material is scattered, with much of it is the fourth chapter of Baba Metzia.]

[Most of the Ma'aser Sheni money was used to buy animals for sh'lamim offerings (i.e, "peace offerings", which - apart from specified parts - can be consumed by the laity), so the mishna will assume that money found at the animal markets probably had the sanctity of Ma'aser Sheni. During the Three Festivals, most of the money in circulation was probably Ma'aser Sheni money. But the rabbis ruled that, since there was no reason to assume that money found during the Festivals was _lost_ during the Festivals, any money found in Jerusalem outside the animal markets did not have the presumptive status of Ma'aser Sheni.]

Didn't we learn in a mishna (in Shekalim) that money found near the animal dealers (in Jerusalem) is always (presumptively) Ma'aser Sheni? (Money found) on the Temple Mount is (presumptively) not sacred. And (money found anywhere else in) Jerusalem depend s: during the rest of the year it is (presumptively not sacred), but during the Festival seasons all (money) is (presumptively) sacred.

And R. Sh'maya bar Ze'ira said: What is the reason (that coins found in the rest of Jerusalem during Festivals are assumed to be Ma'aser Sheni)? Because the marketplaces of Jerusalem are swept each day (so money found must have been dropped there on that very day). From here we learn that we can assume that the earlier money (from the day preceeding the Festival) is gone, and this money (found on the Festival day) are different (i.e., are probably Ma'aser Sheni). Here too (in our mishna about the renters, shouldn't we assume that) the earlier items (i.e., items lost by earlier tenants) are gone, and these (items found now) belong to the latest (tenant)?

The gemara answers: Resh Lakish said in the name of Bar Kappara that (our mishna) refers to a case in which the owners had made an inn for three Jews simultaneously (so there is no way of knowing which renter was the original owner).

The gemara objects: If so, we can deduce from here that the halakha is according to R. Shimon b. Elazar even in an area with a Jewish majority?! [Recall that, on 24a, the gemara tried to determine whether R. Shimon b. Elazar's ruling that an item lost in a public place, even if the item had an identifying mark, could be kept by the finder. The gemara debated whether R. Shimon's ruling applied only if there was a Canaanite majority, or whether it applied even when there was a Jewish majority. And Resh Laki sh's statement in the name of Bar Kappara would seem to support the assumption that R. Shimon b. Elazar's ruling applied even if there was a Jewish majority -- but that is _not_ the gemara's conclusion on 24a! So our mishna can't be discussing a case of t hree Jewish guests in a motel.]

Instead, R. Menashya bar Yaakov said, this is a case of an inn for three idolaters. [There is no obligation to return items to idolaters under these circumstances. Rashi points out that this would be the case even if there was only _one_ idolater; the cas e of three idolaters is taken simply to parallel the case of three Jews (where we cannot return the item because we don't know who lost it). [The question: "Why three and not two?" is dealt with in the following section.]

[Our mishna ruled that an item found in a house rented to three people could be kept by the finder. Bar Kappara suggested that our mishna is dealing with three Jewish tenants, but the gemara concluded that the three tenants must have been nonJews; otherwi se, the mishna would be supporting the position that R. Shimon b. Elazar's ruling (that the finder keeps items found in publicly-populated areas) applies even in Jewish areas -- not the gemara's conclusion on BM 24a. It would appear to be stretching thing s to compare an object lost in a house occupied by three tenants to one lost in a publicly- populated area. It will be recalled that R. Shimon ben Elazar's criterion for whether the found object could be kept was the presumption of the owner's having desp aired of recovering it. The same criterion will be applied in the present case.]

Rav Nachman said in the name of Rabba bar Avuha: You may even say (that our mishna is discussing a case of) three Jews. Why (can the finder keep the item)? Because the one who lost it says "Let's see. No one else was with me except for these two, and they had many opportunities to return it to me, but they did not return it to me. Will they now return it to me? If they had intended to return it, they would have done so. That they did not return it means that they intend to steal it." [Thus, the owner will indeed give up hope of recovery, but this case does not necessarily support R. Shimon b. Elazar's ruling about the general case of items lost in areas populated by Jews.]

And Rav Nachman follows his own logic. For Rav Nachman said: If a person saw a coin that fell from one of two people, he must return it. Why? The one who dropped it does not give up hope. He says "Let's see. Nobody was with me except for this one, and I w ill confront him and say 'You took it!'" But if there were three people (one of whom dropped a coin), (the finder) does not have to return it. Why? The one who dropped it surely gives up hope of recovery, saying "Let's see, there were two people with me. If I confront this one, he will say 'I didn't take it,' and if I confront the other one, _he_ will say 'I didn't take it.'"

Rava said (to Rav Nachman): That which you said, that with three (people, one of who drops a coin), (the finder) does not have to return it, does not apply except in the case in which the coin is not worth one prutah for each person [i.e., is not worth a total of three prutot]. If the coin _is_ worth one prutah per person, (the finder) must return it. Why? It is possible that they (the three) are partners, and do not give up hope. [The one who dropped it assumes that it was found by one of his partners. W e will see soon [the next page of text, in fact] that the torah does not require the return of an item worth less than a prutah.]

Others say that Rava said: Even if the coin was worth only two prutot, (the finder) must return it. Why? Perhaps they were all partners in the coin, and one of them gave up his share [so that each of the two remaining partners owned one-prutah shares].

[We have here a good example of a Talmudic process called "oqimta": i.e. the restriction of mishnaic ruling to a specific narrow set of circumstances, in order to allow it to be superseded by a ruling that is considered preferable for the general case: Th e mishna on p. 25b says explicitly that anything found in a house rented to others belongs to the finder, who would usually be the owner of the house, whereas the gemara concludes that the last tenant can claim it. In order to avoid out-and-out rejection of the mishna's ruling, the "finder" is redefined to be one of three simultaneous tenants, and even in this special case, he is allowed to keep the found object only if it is valued at no more than two or three prutot, i.e. it is nearly worthless. Thus, a lthough the gemara's conclusion for the general case is at variance with that of the mishna, by allowing the latter to be retained as halakha in a very restricted set of conditions, it cannot be accused of having rejected the mishna outright.]

[We are now 17 lines from the top of 26b.]

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