BM 26b: The biblical sources requiring returning lost items, and the status of items found in a shop.
[We begin on 26b, about 17 lines from the top of the page. The gemara had presented a ruling by Rava on the details on the requirement to return a coin that had been that had been dropped by one of three people. The gemara will now go on to present some a dditional rulings by Rava.]
And Rava said: If one saw a coin that fell and took it with the intention to steal it before the owner gave up hope of recovery, he (the finder) has violated all (the possibly relevant biblical commandments): "You shall not rob" (Lev. 19:13), and "You mus t surely return them" (Deut.22:1), and "You shall not hide from it" (Deut. 22:3). And even if he returns it after the owner has despaired hope of recovery, it is a present that the finder gives to the owner, but the violation stands.
[The Tosafot are bothered by this. After all, once the item is returned, the violation against robbing has been corrected, and the positive requirement of returning the item has been fulfilled. Tosafot therefore rules that only the "You shall not hide fro m it" transgression remains, since the finder did not return the item before the owner despaired.]
(A second ruling by Rava:) If he (the finder) took it before (the owner) despaired hope of recovery, and after the owner despaired the finder decided to steal it, he has transgressed "You must surely return them." [When the finder _took_ the item, he inte nded to return it, so he was not guilty of robbery; when he decided to keep the item, it was already in his possession, so that he was _still_ not guilty of robbery. Similarly, the finder did not violate "You shall not hide from it" because he intended to return the item initially, and decided to keep it for himself only after the owner had despaired.]
(Rava's third ruling:) If (the finder) waited until after the owner despaired and then took the item, he violates only "You shall not hide from it." [The other two biblical laws are, according to Rava, applicable only before the owner has despaired.]
(Rava's fourth ruling:) One who saw a coin dropped by his friend into the sand and found it and took it is not obligated to return it. Why? The one who dropped (the coin) despairs hope of recovery. And even if he (the finder) sees him (the owner) with a s ifting through the sand with a seive, (we still assume that he has despaired): He is saying "Just as I dropped a coin, so might someone else have dropped a coin, and I will find something."
[We are now at the mishna 18 lines from the bottom of 26b.]
Mishna: If one found items in a shop, they belong to the finder. [Rashi points out that this must refer to items with no identifying marks, so that the owner gives up hope of recovery.] But if they were found between the chest and the shopkeeper, they bel ong to the shopkeeper. (If one found coins) in front of a money-changer, they are his (the finder's). Between the bench and the money-changer, they belong to the money-changer.
[As can be seen in ancient Israeli towns that were preserved pretty much as they were until they were excavated (e.g. Beit Shan, which was destroyed by an earthquake), the ordinary shop was not much more than an alcove facing the street. According to Rash i, the shopkeeper had a chest before him from which took out his merchandise and into which he put the money handed to him by the customer. In the money-lender's shop, the proprietor and his customer sat or stood at opposite sides of a bench, on which a t ablet had been placed to make the table on which the coins were laid out for exchange. In Hebrew, "shul`hani" (money-changer) is derived from "shul`han" (tablet or table); cf. "bank", which is etymologically related to "bench". (We have translated the wor d "kissei", which is used to describe all sorts of seat - ranging from throne to toilet-seat - as "bench" as suited to the context.)]
The Mishna continues: If one buys produce from another, or another sends him produce, and he finds coins among them, they (the coins) belong to him. If the coins were bundled together [Rashi: so that they could be identified by the knot or the number of c oins], he takes them and announces his find.
R. Elazar said: "Even coins lying on top of the (money-changer's) table belong to the finder. [The gemara will now try to determine whether R. Elazar's ruling is consistent with our mishna.]
We learned (in our mishna): "(Coins found) in front of a money- changer belong to the finder." This implies that if they were found on the table (which is the money-changer's furniture), they would belong to the money-changer (a ruling inconsistent with R . Elazar).
Consider the final clause of the mishna: "(Coins found) between the bench and the money-changer belong to the money-changer." This implies that if the coins were on the table [which is _on_ the bench, and not between it and the money-changer], they belong to the finder. [This is consistent with R. Elazar, but suggests an internal contradiction in the mishna.]
Thus, from the wording of the mishna, it is impossible to bring evidence for or against R. Elazar's statement. [Presumably, either the first or last clause of the mishna is imprecise, but we do not know which one.]
What is the source of R. Elazar's conclusion?
Rava said: "The mishna was problematic (for R. Elazar). Why did the mishna teach '(coins found) between the bench and the money-changer belong to the money-changer?' The mishna should have taught '(coins found) on the table [Rashi: and _a fortiori_ betwee n the bench and the money-changer] belong to the money-changer.' [That the mishna did _not_ use this language suggests that coins found on the table belong to the finder.] Or perhaps (R. Elazar reasoned that the mishna should have stated) '(Coins found) i n the money-changer's shop belong to the finder,' parallel to the language of the first clause -- `If he found an item in a shop, it is his'. [This wording excludes the shopkeeper's chest; a similar wording in the case of the money-changer would have excl uded coins found on his table, but it was not used.] From either inference, (R. Elazar would conclude that even coins lying) on the table belong to the finder.
(Our mishna stated:) "One who buys produce from another ..." Resh Lakish said in the name of R. Yannai: This was taught [presumably based on a b'raita] only when one buys produce from a merchant [who gets the produce from many suppliers, so there is no wa y of identifying the owner of the coins). But if he buys (the produce) from a private individual, he must return it.
Similarly, a mishnaist ["tanna": in the Amoraic period, this term refers to a teacher who specialiizes in memoriziing the mishna and extensive b'raitot rather than talmudic analysis] taught before R. Nachman [evidently referring to the same b'raita]: The mishna did not teach (that the finder can keep the coins found in the produce) except when (the produce) was purchased from a merchant, but if he purchased it from a private individual, he must return (the coins).
R. Nachman said: But did the private individual himself harvest the produce? [Presumably he did not; the harvesting was done by workers. And since we cannot determine which worker dropped the coins, shouldn't the finder be able to keep the coins, just as in the case of produce bought from a merchant?]
(The mishnaist) said to R. Nachman: Should I delete (the b'raita, i.e., should I stop teaching it)?
(R. Nachman said:) No. Interpret the b'raita as referring to a case in which he harvested the produce using his Canaanite slave or maidservant. [They cannot halakhically own items, and anything in their possession automatically defaults to their master.]
[We are now at the mishna, 7 lines from the top of 27a.]
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