Commentary for Bava Metzia 3:8
אין ומצאתה דקרא דאתא לידיה משמע ומיהו תנא לישנא דעלמא נקט ומדחזי ליה אמר אנא אשכחית ואע"ג דלא אתאי לידיה בראיה בעלמא קני תני כולה שלי דבראיה בעלמא לא קני לה
[viz.] ONE OF THEM SAYS 'I FOUND IT', AND THE OTHER SAYS 'I FOUND IT', ONE OF THEM SAYS 'IT IS ALL MINE', etc.? [To this] R. Papa. or R. Shimi b. Ashi, or, as some say, Kadi,<span class="x" onmousemove="('comment',' This word may also mean 'an unknown authority'. ');"><sup>6</sup></span>
Rashi on Bava Metzia
The teacher employed colloquial language: Had the teacher not also said, "It is all mine," I would have said, "What is, 'I found it,' that the teacher taught? It is the language of people that the mishnah employed, and not the language of Scripture - and many people call it a found object from the time of seeing [it].
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Tosafot on Bava Metzia
[H]e does not acquire [it] through sight. The Mishna teaches us that by merely seeing a lost object, one does not acquire it.
There seems to be a contradiction to this ruling from a Gemara later on 118a. The Gemara there quotes a Mishna in Shekalim which cites a dispute about whether those who guard the growing barley in the Shemittah year must be paid for their labor or not. The first Tanna holds that they must be paid. Otherwise, the barley they are guarding would belong to them and the barley for the Omer offering must belong to the public, not to an individual. R’ Yose holds that the guards can work for free if they so desire.
The Gemara explains that the first Tanna holds that “guarding” the ownerless barley is a way of acquiring it. If the guards are not paid from public funds, they become the legal owners and the Omer offering must be owned by the public. R’ Yose holds that “guarding” the ownerless barley is not an acceptable method of acquiring it. Thus, even if the guards are not paid, the barley does not become their property and may be used for the Omer offering. The Gemara continues to suggest other ways of explaining the dispute, but they all focus around whether “guarding” the growing barley is an acceptable method of acquisition.
The Gemara uses the expression הבטה which literally means looking or watching. Tosfos understands that this is the same as ראיה - seeing, of our Gemara. Thus, we have what appears to be a contradiction. That which [the Gemara] says in Perek Habayis Vehaliyah (below 118a): “watching” an ownerless item is an effective act of acquisition, that is when he did some minimal action, such as constructing a small fence around the barley. Even though he did nothing at all to the barley, “watching” or “guarding” it is an effective act of acquisition, but by merely seeing a lost object and taking no action whatsoever, one does not acquire the object.
There seems to be a contradiction to this ruling from a Gemara later on 118a. The Gemara there quotes a Mishna in Shekalim which cites a dispute about whether those who guard the growing barley in the Shemittah year must be paid for their labor or not. The first Tanna holds that they must be paid. Otherwise, the barley they are guarding would belong to them and the barley for the Omer offering must belong to the public, not to an individual. R’ Yose holds that the guards can work for free if they so desire.
The Gemara explains that the first Tanna holds that “guarding” the ownerless barley is a way of acquiring it. If the guards are not paid from public funds, they become the legal owners and the Omer offering must be owned by the public. R’ Yose holds that “guarding” the ownerless barley is not an acceptable method of acquiring it. Thus, even if the guards are not paid, the barley does not become their property and may be used for the Omer offering. The Gemara continues to suggest other ways of explaining the dispute, but they all focus around whether “guarding” the growing barley is an acceptable method of acquisition.
The Gemara uses the expression הבטה which literally means looking or watching. Tosfos understands that this is the same as ראיה - seeing, of our Gemara. Thus, we have what appears to be a contradiction. That which [the Gemara] says in Perek Habayis Vehaliyah (below 118a): “watching” an ownerless item is an effective act of acquisition, that is when he did some minimal action, such as constructing a small fence around the barley. Even though he did nothing at all to the barley, “watching” or “guarding” it is an effective act of acquisition, but by merely seeing a lost object and taking no action whatsoever, one does not acquire the object.
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