Bava Metzia 19

Chapter 19

א מתניתין מני רבנן היא אלא אי אמרת בעשיר ועני מחלוקת אבל מעני לעני דברי הכל זכה לו הא מני לא רבנן ולא ר' אליעזר

1 our Mishnah would then be in accord with the Rabbis.<span class="x" onmousemove="('comment',' [Who disregard the potential miggo and do not admit the argument. 'Since the person who picked up the article for the rider could, if he had wished, have picked it up for himself, he may also confer possession of it upon his neighbour.' The latter therefore can rightly retain the article if he wishes to do so. At this stage the Gemara presumes that he had originally picked up the article for the rider, but that he subsequently refused to hand it over to him.] ');">1

ב אמר ליה מתני' דאמר תחילה

2 But if you say that the difference of opinion concerns [a case where] a rich person [gleaned] for a poor person, but that all agree [in the case] of a poor person [gleaning] for a poor person that one transfers possession upon the other, with whose view is our Mishnah in accord? It agrees neither [with the view of the Rabbis nor with [that of] R. Eliezer!<span class="x" onmousemove="('comment',' For it would appear from our Mishnah that one cannot ordinarily acquire an object for someone else, and the only way in which one can confer upon the other the right of possession is by handing the object over to him. ');">2

ג הכי נמי מסתברא דקתני סיפא אם משנתנה לו אמר אני זכיתי בה תחילה לא אמר כלום תחילה בסיפא למה לי פשיטא אע"ג דלא אמר תחילה תחילה קאמר אלא לאו הא קמ"ל רישא דאמר תחילה

3 — He ['Ulla] answered him: Our Mishnah speaks of [a case] where [the person who picked up the article] said: [I took possession of it] first.<span class="x" onmousemove="('comment',' The reason why the rider cannot claim the found object unless it has been handed over to him is that the other person claims to have picked it up straight away for himself. But if the other person had picked it up for the rider it would have belonged to the latter straight away, for we say that since, if he had wished, he could have taken possession of it for himself, he may also take possession of it for his neighbour. ');">3

ד ואידך תנא סיפא לגלויי רישא סיפא דאמר תחילה רישא דלא אמר תחילה

4 This also stands to reason! Since the second clause teaches: IF AFTER GIVING IT TO HIM, THAT PERSON SAYS: 'I ACQUIRED IT FIRST,' THERE IS NOTHING IN WHAT HE SAYS, what need is there to state FIRST in this second clause? Surely even if he did not say FIRST [it would be assumed that] he meant 'FIRST'?<span class="x" onmousemove="('comment',' When he claims the article after handing it over, he must surely mean that he acquired it first for himself. There would be no sense in his claim that he acquired it for himself after he disposed of it to the rider. ');">4

ה רב נחמן ורב חסדא דאמרי תרוייהו המגביה מציאה לחבירו לא קנה חבירו

5 It must therefore be concluded that it was intended to let us know that in the first clause also he stated 'first'.<span class="x" onmousemove="('comment',' I.e., that the person who picked it up maintained that he took possession of it for himself right at the beginning. And the last clause teaches us that even if he claims to have picked it up for himself straightaway, his plea is not accepted, for by handing over the article to the rider he made it clear that he originally meant to acquire it for that person. ');">5

ו מאי טעמא הוי תופס לבעל חוב במקום שחב לאחרים והתופס לבעל חוב במקום שחב לאחרים לא קנה

6 And the other?6

ז איתיביה רבא לרב נחמן מציאת פועל לעצמו

7 The wording of the second clause is intended to throw light on the first: In the second case he said 'FIRST' but in the first case he did not say 'first'.<span class="x" onmousemove="('comment',' The use of the word FIRST in the second clause makes it clear that it was intentionally excluded from the first clause. [For there, even if he did not say 'first', but picked it up for the rider, the rider would still have no claim to it until it had been delivered to him.] ');">7

ח במה דברים אמורים בזמן שאמר לו בעל הבית נכש עמי היום עדור עמי היום אבל אמר לו עשה עמי מלאכה היום מציאתו של בעל הבית הוא

8 Both R. Nahman and R. Hisda Say: If a man lifts up a found object for his neighbour, the neighbour does not acquire it.8

ט א"ל שאני פועל דידו כיד בעל הבית הוא

9 For what reason? Because it is like one who seizes [a debtor's property] on behalf of a creditor, thereby causing loss to [the debtor's] other [creditors],<span class="x" onmousemove="('comment',' The person who lifts up a found object for someone else does not benefit himself, and he deprives other people of the chance of finding and acquiring the object. He is therefore like a person who comes and seizes a debtor's property for the benefit of a creditor, thus depriving other creditors of the chance of recovering their debt. ');">9

י והאמר רב פועל יכול לחזור בו אפי' בחצי היום

10 and one who seizes [a debtor's property] in behalf of a creditor, causing loss thereby to [the debtor's] other [creditors], does not acquire [the property].<span class="x" onmousemove="('comment',' As the creditor in whose behalf he seized the property had not authorised this man to act on his (the creditor's) behalf his intervention is illegal and constitutes an infringement of the rights of the other creditors (Rashi). [According to Tosaf, the same law would apply even where he had been authorized by the creditor. V. Keth. 84b; Git., 113.] ');">10

יא אמר ליה כל כמה דלא הדר ביה כיד בעל הבית הוא כי הדר ביה טעמא אחרינא הוא דכתיב (ויקרא כה, נה) כי לי בני ישראל עבדים עבדי הם ולא עבדים לעבדים

11 Raba asked R. Nahman: [A Baraitha teaches:]11

יב אמר ר' חייא בר אבא אמר ר' יוחנן המגביה מציאה לחבירו קנה חבירו ואם תאמר משנתינו דאמר תנה לי ולא אמר זכה לי:

12 A labourer's find belongs to himself. This decision only applies to a case where the employer said to the labourer: 'Weed for me to-day', [or] 'Hoe for me to-day.'<span class="x" onmousemove="('comment',' As the work which the labourer is to do for the employer is specified it cannot include anything else, not even finding and acquiring an ownerless object. If the labourer has spent any time in finding and acquiring the object, the employer may deduct payment for the time lost, but he cannot claim the object. ');">12

יג <big>מתני׳</big> ראה את המציאה ונפל עליה ובא אחר והחזיק בה זה שהחזיק בה זכה בה:

13 But if he said to him: 'Do work for me to-day.' the labourer's find belongs to the employer!<span class="x" onmousemove="('comment',' Since the work is not specified it includes anything that the labourer may do during the time of his employment, so that the object that he finds and acquires during that time belongs to the employer. This would show that when one lifts up a found object for his neighbour the neighbour acquires it — in contradiction to R. Nahman and R. Hisda. ');">13

יד <big>גמ׳</big> אמר ריש לקיש משום אבא כהן ברדלא ארבע אמות של אדם קונות לו בכל מקום [מאי טעמא] תקינו רבנן דלא אתי לאנצויי אמר אביי מותיב ר' חייא בר יוסף פיאה אמר רבא מותיב ר' יעקב בר אידי נזיקין

14 — He [R. Nahman] answered him: A labourer is different, as his hand is like the hand of his employer.<span class="x" onmousemove="('comment',' The employer's right to the object found by his employee has nothing to do with the question whether one may acquire an object for a neighbour, as in the case of the employer the reason why he is entitled to the object found by his employee is that during the time of the employment the employee belongs to the employer, and anything that the former acquires during that time belongs to the latter. ');">14

טו אמר אביי מותיב ר' חייא בר יוסף פיאה נטל מקצת פיאה וזרק על השאר אין לו בה כלום נפל לו עליה פרס טליתו עליה מעבירין אותו הימנה וכן בעומר שכחה

15 But does not Rab say: 'The labourer may retract even in the middle of the day? — He [R. Nahman] answered him [again]: Yes, but as long as he does not retract [and he continues in the employment] he is like the hand of the employer. When he does retract [he can withdraw from the employment] for another reason,<span class="x" onmousemove="('comment',' The fact that the labourer may terminate the employment any time he likes does not imply that he does not belong to the employer while the engagement lasts and that he can acquire a found object for himself during that time. There is another reason for the right conceded to the employee to terminate his engagement whenever he likes. ');">15

טז ואי אמרת ארבע אמות של אדם קונות לו בכל מקום נקנו ליה ארבע אמות דידיה

16 for it is written: For unto me the children of Israel are servants; they are My servants16

יז הכא במאי עסקינן דלא אמר אקני

17 — but not servants to servants.<span class="x" onmousemove="('comment',' The freedom of the individual ought not to be jeopardised by an engagement which is to bind the employee to work for the employer against his own inclination, as if he were the employer's chattel, Cf. B.K. 116b. ');">17

יח ואי תקון רבנן כי לא אמר מאי הוי

18 R. Hiyya b. Abba said in the name of R. Johanan: If one lifts up a found object for his neighbour, the neighbour acquires it. And if you will say: Our Mishnah [differs]!<span class="x" onmousemove="('comment',' In that it says that the person who picked up the object and said, 'I took possession of it,' acquired it for himself, even though he acted for the rider who told him to give it to him. ');">18

יט כיון דנפל גלי דעתיה דבנפילה ניחא ליה דנקני בארבע אמות לא ניחא ליה דנקני

19 — [it is because our Mishnah deals with a case] in which he said, 'Give me it,' and did not say, 'Acquire it for me.'<span class="x" onmousemove="('comment',' Had the rider said: 'Acquire it for me by picking it up on my behalf' the object would have belonged to the rider. By saying: 'Give it to me,' the rider made it clear that the found object was to become his only when it was handed over to him. The other person is therefore entitled to keep the object. ');">19 MISHNAH. IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO HAS SEIZED IT IS ENTITLED TO ITS POSSESSION. GEMARA. Resh Lakish said in the name of Abba Kohen Bardala: A man's four cubits acquire [property] for him everywhere. For what reason? — The Rabbis instituted [this law] in order that people might not be led to quarrelling. Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] Pe'ah. Raba said: R. Jacob b. Idi raised an objection from the [tractate of] Nezikin.20 Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] Pe'ah:21 If he [a poor man] takes part [of the gleanings] of the corner [of a field] and throws it over the rest [of the gleanings],22 he cannot claim anything. If he falls Upon it, [or if] he spreads his garment upon it, he may be removed from it. And the same [law applies] to a forgotten sheaf.23 Now if you say that a man's four cubits acquire [property] for him everywhere, let the four cubits [of the poor man] acquire for him [the gleanings on which he fell]! — Here we deal with a case where the man did not say. 'I wish to acquire it.' But if the Rabbis instituted [this law], what does it matter if he did not say, ['I wish to acquire it']? — Since he fell [upon it], he made it clear that he wished to acquire it by falling [upon it]<span class="x" onmousemove="('comment',' He preferred to acquire the gleanings by the act of falling upon them, believing that this would be legally more effective than the claims of the four cubits sanctioned by the Rabbis, And as he did not intend to exercise the right afforded him as regards the four cubits, the right lapsed, and there was nothing in his action of throwing himself upon the gleanings to entitle him to claim their possession. ');">24 but did not wish to acquire it by means of [his four cubits].

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