Hi Rabbi Kornfeld amush,

Its been a while. I hope all is well.

I am preparing a chabura on how yeush works (the machloket between the ramban and tosafot). Ive read the Steipler on this machloket (siman 25 regarding beisura ati leyadei)as well as his understanding on the rambans position on the gemara in BM 26 (siman 28):

If I understand correctly, the rambans position is that Yeush functions as a final break in the baalut of the object. The reason it doesnt work in cases of aveida (when the yeush occurs after the finder finds the object) is that the finder is a shomer, the object is considered in the possession of the original owner, and yeush has no impact in that case. Tosafot disagrees and says that yesuh removes the chiyuv hashava from the object; once that occurs, a finder may make a kinyan and take that object. Yeush in and of itself, does not remove baalut of the object. The ramban needs to explain why yeush by gezeillah doesnt work. According to the Steipler, in his second explanation, its because the person who causes!

yeush cannot benefit from that yesuh by taking ownership of that object; the case in BM 26b is different because there the gazlan did not cause the yeush and can therefore benefit from it by taking ownership of the object. Thats my summary; please let me know if you see any mistakes in it.

My question is this: How does the ramban learn the Gemara in Baba Kamma 66a-b where Raba explains that even he only holds that yeush is koneh when the finder/thief wants to own the object. The rambans shitta is that yeush in and of itself severs the baalut of the object. According to him, after yeush, there is no longer any baalut. I know the Ramban doesnt pasken like Raba but I assume he accepts Rabas conception of Yeush; This gemara seems to directly contradict the Rambans view.

As always I look forward to your extraordinarily helpful feedback,

Gur Berman, Boca Raton, Fl

Hi Rabbi Kornfeld,

Thank you for replying to my question. It is always a huge honor and help to hear from a talmid chacham as yourself.

(a) Im still not sure I understand the rambans position. According to your answer, both tosafos and ramban agree that yeush does not remove an object from an owners reshus. That could be (they both would have to understand that gemara I cited in the previous email).

But the rambans entire shitta is that yeush that occurs after retrieval of an object doesnt work because the object is still in the owners reshus, the finder is like a shomer, and the yeush that occurs afterwards is yeush bereshus which doesnt work. But if even after yeush, the object is (in your words) still considered to be the property of the original owner(as that gemara seems to imply), than even after yesuh, the finder should be considered a shomer, and no kinyan should occur according to the ramban.

For Tosafos, the whole thing is more understandable; there is a chiyuv hashava which is only removed by yeush. The gemara I cited in the previous email makes sense for tosafos because for them, yeush doesnt have to change the legal (ownership) status of the object.

(b) One more question. In siman 25 (daf 97), the Steipler explains the shitta of the ritva that if someone finds an object before the owner has yeush and then transfers the object to another person, that second person cannot make a kinyan on the object because it is a chefza that has a toras hashava and this type of object cannot be affected by yeush. So, is the Stepler saying that there is no chiyuv hashava on a lost object until someone picks it up (if there were a chiyuv hashava on an object immediately after it was lost, there could never be effective yeush). Thats an interesting way of looking at the chiyuv hashava. I had previously thought that any lost object has a chiyuv hashava as soon as its lost, and then there is a chiyuv gavra on one who picks up that object.

I look forward to hearing from you,

Gur Berman, Boca Raton, Fl