1) "YE'USH SHE'LO MI'DA'AS"
QUESTION: Rava and Abaye argue about whether "Ye'ush she'Lo mi'Da'as" is considered Ye'ush or not. May the finder of a lost object keep for himself the object when the owner, who at present does not realize that he lost it, eventually will have Ye'ush when he realizes that he lost it? The Gemara explains that their dispute is limited to a specific case. If the object was lost because it was swept away by the sea or a river, even Abaye agrees that one may keep it, for the verse itself permits such an object as the Beraisa later (22b) explains. The dispute between Rava and Abaye applies only to an object which was lost in a normal manner (and has no Siman). Abaye maintains that the finder may not keep it; since the owner does not know that he lost it, he does not have Ye'ush. Rava maintains that since the owner eventually will have Ye'ush, the Ye'ush is considered to have taken effect already.
The Gemara attempts to support the opinion of Rava from the Mishnah which states that a person who finds money scattered on the ground may keep it, even though he cannot be certain that the owner already knows that he lost the money. The Gemara rejects this proof with the argument that the finder may indeed assume that the owner knows about the loss already, based on the principle of Rebbi Yitzchak. Rebbi Yitzchak teaches that a person constantly checks his pockets for his money, and thus it is logical to assume that the owner became aware that he lost the money as soon as it was lost.
The Gemara's argument, however, does not seem to fully explain why the finder may keep the money. The logic of Rebbi Yitzchak only provides a reason to assume that the owner is aware of his loss. It does not provide a reason to assume that the owner had Ye'ush and gave up hope of ever retrieving his money. Why may the finder assume that the owner had Ye'ush as soon as he found out about the loss?
The simplest explanation seems to be that because the object has no Siman, the owner is assumed to have Ye'ush since he knows that he will not be able to reclaim it. This explanation is problematic, however. If a person who loses an object without a Siman is always assumed to have Ye'ush, then how is this case different from the case of an object swept away by the sea? Even Abaye permits the finder to keep an object -- even with a Siman -- that was swept away by the sea, because the finder may assume that the owner gave up hope of ever retrieving it. (See RASHI to Bava Kama 66a, DH Motzei; RAMBAM, Hilchos Gezeilah v'Aveidah 11:10; and RITVA to 26b. The Rambam there explains that the finder may keep an object swept away by the sea because the owner is assumed to have had Ye'ush. The RAMBAN (Milchamos to 22b) gives the same explanation, and he cites RABEINU CHANANEL who says this as well.)
When the Beraisa says that an object swept away by the sea is "lost to all mankind" (and therefore the finder may keep it), the Beraisa's intention is to explain why it is assumed that the owner had Ye'ush. If the possibility had remained that another person might find the object, the owner would not have given up hope of retrieving it; he would have thought that he might conceivably convince the finder that the object is his, even if it does not have a Siman. However, if an object is lost in such a way that it is clear that no person will ever find it, then the owner certainly despairs of ever retrieving it. An object that is swept away by the sea is lost in such a way that it seems that it will never be found. Therefore, the owner is assumed to have Ye'ush. The Gemara says that even if the owner protests that he did not have Ye'ush, or if he is seen running after his object to try to retrieve it, the Halachah assumes that he does not really mean what he says, and he really does have Ye'ush. In such a case, Beis Din can be certain (with an "Umdena") of his thoughts of Ye'ush, and those thoughts ("Devarim sheb'Lev") override his actions and words. (See Ritva to Kesuvos 3a.)
Abaye agrees that when an object is swept away by the sea, even before the owner is aware of his loss it is as if he has already found out about it and proclaimed his Ye'ush. Why, then, does Abaye disagree with Rava when an object without a Siman is lost in a normal manner? It must be that it is not absolutely certain that the owner will give up hope of retrieving it. In fact, if one finds an object without a Siman and then sees that the owner clearly did not give up hope of retrieving it, he is not permitted to keep it, as the Gemara says later (26b). (This is also implicit in the words of the Beraisa which states that only when an object is "lost to all of mankind" is it assumed that the owner has Ye'ush.) Why, then, does the Gemara conclude, based on the principle of Rebbi Yitzchak, that the finder may keep the money? It is clear that the mere fact that an object does not have a Siman is not a sufficient reason to assume that the owner had Ye'ush. The only conclusion the Gemara should be able to make is that the owner is aware of the loss but not that he actually had Ye'ush. Why does the Gemara assume that the owner had Ye'ush?
(Although the RASHBA (21b) explains the Halachah of an object swept away by the sea differently and says that such an object is permitted because the Torah gives it a status of Hefker (and not just because of Ye'ush), nevertheless the Rashba's explanation is also based on the assumption that the owner had Ye'ush. The Torah gives the object a status of Hefker because the situation is such that a person normally despairs of ever retrieving the object that was lost. Since most people would have Ye'ush in such a situation, the Torah dictates that even if a particular person does not have Ye'ush, his Da'as is disregarded ("Batel Da'ato Etzel Kol Adam"), and it is considered as though he made the object Hefker. In contrast, the Torah does not give the status of Hefker to a lost object that has no Siman; this indicates that it is not certain that a person will have Ye'ush when he loses an object that has no Siman. Hence, the above difficulty applies even according to the Rashba's opinion: why is a person allowed to keep money that he finds that has no Siman, if he cannot be certain that the owner had Ye'ush?)
ANSWER: When a person finds an object that has no Siman and it is not known whether the owner had Ye'ush, the finder is allowed to assume that the owner had Ye'ush due to a Rov. Most people have Ye'ush when they lose something that has no Siman, and therefore the finder is not required to suspect that the one who lost it is part of the Mi'ut, the minority, who do not have Ye'ush. However, there is a general rule that "Ein Holchin b'Mamon Achar ha'Rov" -- the concept of Rov does not apply to monetary matters (as Shmuel rules in Bava Kama 26b). Why, then, does the Rov here allow the finder to keep the Aveidah?
TOSFOS (23a, and Bava Basra 23b) explains that the reason for the general rule of "Ein Holchin b'Mamon Achar ha'Rov" is that a Chazakah, which is created when a person is in possession of an object, is a more powerful proof of ownership than a Rov. Thus, the Chezkas Mamon proves that the object belongs to the holder even if a Rov indicates otherwise, and thus Beis Din cannot take the object away from him. In the case of an Aveidah, however, the object is not in anyone's possession. Therefore, when the person who finds the Aveidah takes possession of it, a Rov is accepted to determine that the owner probably had Ye'ush and to allow the finder to keep it. Since there is no Chazakah to counter it, the Rov dictates the Halachah even though it is a monetary matter.
This explanation sheds light on the exact issue about which Rava and Abaye disagree. Abaye agrees with Rava that the finder may keep an object that was swept away by the sea. In that case, it is absolutely clear (through an "Umdena") that the person who lost the object would have Ye'ush; even if he would deny that he had Ye'ush, the Halachah would assume that he had Ye'ush. Since it is so certain that the owner will have Ye'ush, Abaye agrees that it is considered as though he had Ye'ush even before he becomes aware of his loss. However, Abaye rules this way only when there is absolute certainty that the owner will have Ye'ush. Rava, on the other hand, maintains that even a Rov suffices; even if a Rov indicates that the owner will have Ye'ush, it is considered as though he had Ye'ush even before he knows that he lost the object. Rava views a Rov just like an "Umdena" of absolute certainty. Abaye, on the other hand, maintains that "Ye'ush she'Lo mi'Da'as" is not Ye'ush. Abaye's position is that although a Rov can clarify what was already done, a Rov that indicates what will take place cannot affect the object's present status. If the fact that the owner will have Ye'ush is known only because of a Rov, that is not sufficient for it to be considered as though he already had Ye'ush. According to Abaye, only an "Umdena" can do that.
This answers the question of the RA'AVAD. The Ra'avad asks that the dispute between Abaye and Rava about "Ye'ush she'Lo Mi'Da'as" seems to be connected to the issue of "Bereirah" which is discussed in many places in the Gemara. "Bereirah" refers to a retroactive clarification of the status of a past event based on an event which occurs in the future. A person makes a Kinyan but stipulates that it depends on the occurrence of a future event. If the Halachah is "Ein Bereirah" (there is no "Bereirah"), then the Kinyan does not take effect since the future event is not known at the time of the Kinyan and the effectiveness of the Kinyan cannot be determined retroactively by a future event. The opinion of "Yesh Bereirah" maintains that the effect of a Kinyan can be determined retroactively. This issue seems to be directly related to the issue of "Ye'ush she'Lo mi'Da'as," which is based on the assumption that the owner will have Ye'ush in the future. The Halachah of "Ye'ush she'Lo mi'Da'as" should depend on whether or not Bereirah works. If the Halachah is "Ein Bereirah," the Ye'ush should not take effect since the owner's Ye'ush has not happened yet. If the Halachah is "Yesh Bereirah," the Ye'ush should take effect now, when the finder finds the object. Why is the discussion of Abaye and Rava not contingent on the issue of Bereirah?
Perhaps the answer is that even if the Halachah follows the opinion of "Ein Bereirah," that means only that a Kinyan that is contingent on a future event cannot take effect because the future event cannot have a retroactive impact on the Kinyan. With regard to Ye'ush, however, the efficacy of "Ye'ush she'Lo mi'Da'as" is not a result of the future Ye'ush of the owner. An actual Ye'ush is not necessary. Rather, the very fact that a person probably will have Ye'ush takes the place -- and accomplishes the function -- of the actual Ye'ush. Rava, who maintains that it is effective, equates "Ye'ush she'Lo mi'Da'as" to an "Umdena," another instrument that states that the probability that a person will say something makes it as if he has already said it. Thus, Rava's position applies only to the future decisions of a person that can be ascertained by a Rov. Rava would not necessarily consider other future events, which are completely unknown, to have an impact on a current Kinyan; such a case would be subject to the general rule of Bereirah.
This explains how the opinion of Rava can be consistent even with the opinion of "Ein Bereirah." However, the opinion of Abaye must also be reconciled with the opposing opinion of "Yesh Bereirah." If future events can impact on a present Kinyan, then why is it not obvious that "Ye'ush she'Lo mi'Da'as" is considered Ye'ush? After all, in the case of "Ye'ush she'Lo mi'Da'as," the fact that the owner ultimately will have Ye'ush is even more obvious than the future events that affect the Kinyanim in most cases of Bereirah.
The answer to this question should be clear based on the above definition of Bereirah. Bereirah affects a Kinyan only when the Kinyan is made with a clear stipulation that it should be dependent on a future event. When the Kinyan is not made with such a stipulation, there is no reason for a future event to affect a Kinyan that was already made. (See TOSFOS to Bechoros 56b, DH Livror, and Temurah 30a, DH v'Idach.) In the case of "Ye'ush she'Lo mi'Da'as," the owner never makes a verbal stipulation that the status of the object should depend on whether he is Me'ya'esh in the future. Therefore, there is no reason to compare the case of "Ye'ush she'Lo mi'Da'as" to the issue of Bereirah. Even if the Halachah is "Yesh Bereirah," it would have no bearing on the case of "Ye'ush she'Lo mi'Da'as" because it is not a case of a Kinyan made with the intention that it should be affected by a future Ye'ush. Similarly, Rava's argument is not based on the concept of Bereirah. Rather, Rava maintains that even if "Ein Bereirah," the fact that most people are Me'ya'esh should make it as though the one who lost the object was actually Me'ya'esh at the moment that he lost the object.
2) THE "YE'USH" OF A MINOR
QUESTION: The Gemara quotes the Mishnah in Pe'ah (8:1) which says that after the "Nemushos" (the last group of poor people) pass through the fields to collect Leket, anyone else -- even one who is not poor -- may take whatever is left from the Leket. The Gemara explains that once the Nemushos pass through the fields, the other poor people in the city are Me'ya'esh from anything that might be left in the field, and the poor people from other cities were Me'ya'esh from the Leket in this city from the beginning because they assumed that the poor people of this city would collect it all and leave nothing.
REBBI AKIVA EIGER (in Gilyon ha'Shas, Derush v'Chidush, and Tosfos Rebbi Akiva Eiger on the Mishnayos) asks why the Ye'ush of the poor people in other cities should make the Leket in this city permissible for anyone to take. After all, there are poor Ketanim, minors, in neighboring cities who also are entitled to collect the Leket. The Gemara (22b; see Tosfos there, DH d'Lav) states that the Ye'ush of a Katan is considered "Ye'ush she'Lo mi'Da'as" until he becomes an adult. How can the "Ye'ush" of poor Ketanim from other cities permit people to take the Leket? This issue would seem to depend on the dispute of Abaye and Rava, but the Gemara gives this explanation even according to Abaye.
(a) The SHA'AREI YOSHER (5:19) and DIBROS MOSHE (31:8) quote the Gemara in Chulin (134b) which tells about a landowner who lived in a city that had no poor people to collect the Leket from his field. He asked Rav Sheshes what to do, and Rav Sheshes ruled that he could take the Leket for himself, because the verse states that Leket is to be left "le'Ani vela'Ger" -- "for the poor person and the stranger" (Vayikra 19:10), and not for animals of the wild. This means that there is an obligation to leave Leket only when it will be taken by poor people, but there is no obligation to leave Leket when it will be consumed by animals. The Gemara there implies that the reason one may take Leket when there are no poor people to take it is that the verse makes a special allowance. Consequently, it is not necessary for the poor people to be Me'ya'esh in order to permit others to take the Leket. Rather, if no poor people claim the Leket, the Torah permits anyone to take it. The RAMBAM (Hilchos Matnos Aniyim 1:10) cites the Mishnah quoted by the Gemara here which permits Leket to be taken by anyone after the last wave of poor people, and he prefaces this ruling with the teaching of the Gemara in Chulin that the Torah does not want people to leave Leket for the wild animals to take. The Rambam implies that the Gemara here does not rely on Ye'ush to permit Leket to others, and thus the fact that there are poor minors in other cities presents no problem since their Ye'ush is not necessary to make the Leket permissible.
Although the Gemara states that the poor people in other cities have Ye'ush, the Acharonim reconcile the words of the Gemara with the position of the Rambam. They explain that the Gemara does not mean that the actual Ye'ush of the poor in other cities is what permits the Leket for everyone. Rather, the Gemara means that the poor in other cities despair of ever receiving the Leket, and therefore they do not make any attempt to collect it. The Leket then becomes permitted for anyone to take because no poor people collect it.
However, the words of the Rambam imply that the Gemara in Chulin and the Gemara here actually address two separate issues that pertain to Leket that is forsaken by Aniyim. The Derashah in Chulin does not address the monetary issue, the fact that Leket is the "property" of Aniyim and if someone else takes it, he is considered to have stolen from the Aniyim. Rather, the Gemara addresses an issue of Isur v'Heter: is Ma'aser Ani similar to Terumah, which is not permitted to those who are not Kohanim and which must be delivered to Kohanim by the owner? The Gemara in Chulin proves from the verse that Leket is not prohibited to those who are not Aniyim, and that there is no Mitzvah to deliver the Leket to Aniyim. Therefore, if Aniyim do not take the Leket, the Leket is not considered an item that is prohibited to the owner in such a way that it would prevent him from taking it for himself.
The Gemara here addresses a different issue. Even if there is no Isur involved, the Leket is "Mamon Aniyim" -- it is considered the property of the poor people of the world. Even if the poor people are not interested in taking the Leket, if a person who is not poor takes it his act should be considered an act of theft. The Gemara answers this question with the assumption that poor people are Mafkir, or have Ye'ush from, the remaining Leket.
Accordingly, the Rambam implies that the Ye'ush of the poor people in other cities is necessary to make the Leket permissible for everyone and, consequently, Rebbi Akiva Eiger's question remains difficult. Since the poor minors are not able to be Mafkir or have Ye'ush from their portion of the Leket, why should others be permitted to take the Leket?
(b) Perhaps Ye'ush in the case of Matnos Aniyim differs from Ye'ush in the case of an object that is privately owned. In general, the Ye'ush of a minor cannot permit his object to be taken by others, just as the minor cannot make a Kinyan because he has no Da'as. Matnos Aniyim, however, do not actually belong to the minor. Rather, they are the collective property of the general group known as Aniyim, poor people. This is not the same as a partnership, in which many people own one object, because the Matnos Aniyim can be given to any single poor person without a need to compensate the others. Thus, Matnos Aniyim must be viewed as property which can potentially be given to any poor person, but is not the personal property of any one of them (yet). Hence, the minor Aniyim do not yet own this Leket, and therefore it is not necessary for them to actually give it away through Ye'ush or Hefker. Rather, they simply have to remove themselves from the group of Aniyim who are candidates to receive this Matanah. The Ye'ush of minors suffices to remove them from this group of candidates. Since they do not expect to receive it, they will not present themselves as candidates. That is why even Ye'ush of minors permits others to take the Leket. (M. KORNFELD)
3) ACQUIRING "LEKET" THROUGH "KINYAN CHATZER"
QUESTION: The Gemara quotes the Mishnah in Pe'ah (8:1) which says that after the "Nemushos" (the last group of poor people) pass through the fields to collect Leket, anyone else -- even one who is not poor -- may take whatever is left from the Leket. Why should the Leket not be acquired automatically by the owner of the field, through Kinyan Chatzer? After all, the Gemara says earlier (12a) that a person's Chatzer is Koneh an item for him "she'Lo mi'Da'ato," even when he does not know about it. (TOSFOS REBBI AKIVA EIGER, Pe'ah 8:1)
Perhaps the Mishnah in Pe'ah refers specifically to a "Chatzer she'Einah Mishtameres" -- an unprotected field, which cannot be Koneh for the owner when the owner is not near it and does not have intention to be Koneh with it, as the Gemara earlier (12a) states. (It is logical to assume that the Mishnah there refers to a Chatzer that is not Mishtameres, because the owner must leave the gates open to allow the poor people to enter and collect the Leket.)
However, Rebbi Akiva Eiger asks that if this is correct, the Gemara earlier (12a) should have cited the Mishnah in Pe'ah as proof that a "Chatzer she'Einah Mishtameres" does not acquire for a person "she'Lo mi'Da'ato," without his knowledge. Although the Gemara discusses at length the question of whether such a Chatzer acquires for a person "she'lo mi'Da'ato," it does not cite this Mishnah as support. This seems to imply that there is a different reason for why the owner of the field does not acquire the Leket through Kinyan Chatzer.
(a) The DEVAR AVRAHAM (1:13, in footnote there) suggests that perhaps the Gemara does not cite the Mishnah in Pe'ah as proof that a "Chatzer she'Einah Mishtameres" is not Koneh because, in truth, such a Chatzer may be Koneh even according to the Mishnah. The Mishnah might not mean that every person may take the Leket, but rather that the owner is Koneh the Leket through Kinyan Chatzer. Why, then, does the Mishnah state that "Kol Adam" ("any person") is permitted to take it? These words mean that the owner may acquire the Leket for himself if he so desires, and if he has no interest in acquiring it for himself, then anyone else may take it.
(b) Another answer may be suggested based on a statement of TOSFOS (26a, DH d'Shasich). Tosfos writes that a Chatzer, even if it is Mishtameres, cannot be Koneh any object of which the owner is not aware and that he may never find, (see Insights to 26b). It is very likely that the Leket which remains after all of the groups of poor people have combed the field will not be found by anyone. Since the owner may never find it, his Chatzer cannot acquire it for him.
4) FIGS THAT FALL INTO PUBLIC PROPERTY FROM A PRIVATE TREE
QUESTION: The Gemara cites proof for Abaye's view from the Mishnah in Ma'aseros (3:4) which discusses whether a person may take fruits that he finds beneath a tree which stands in a private yard but which leans over the public thoroughfare. The Mishnah says that one may take figs found beneath a fig tree, but he may not take olives or carobs from beneath a private olive or carob tree. The Gemara interprets this Mishnah in accordance with Abaye's opinion. The finder may take the figs because fig trees often shed their figs and therefore the owner of the tree is presumed to have had Ye'ush, and it is considered "Ye'ush mi'Da'as." The owner of a fig tree realizes that the figs will fall and expects people to take them thinking that they were dropped by a passer-by. In contrast, olives and carobs normally do not fall off the tree, and therefore the owner does not expect them to fall and is not presumed to have had Ye'ush (until he actually discovers that the fruits fell). Such a case is one of "Ye'ush she'Lo mi'Da'as." According to Rava, however, even olives and carobs should be permitted to take, because Rava maintains that "Ye'ush she'Lo mi'Da'as" is considered Ye'ush.
Rav Papa rejects the proof and explains the Mishnah according to the opinion of Rava. A passer-by normally assumes that any fruit found on the public road beneath a tree fell from that tree; he does not assume that it was dropped by other passers-by. Therefore, the owner of an olive or carob tree is not Me'ya'esh from fruits that fall beneath his tree. (They are similar to a "Davar she'Yesh Bo Siman," a lost object that has a Siman, for which there is no "Ye'ush she'Lo mi'Da'as.") In contrast, when figs fall from a tree they become disgusting, and the owner is no longer interested in them. Therefore, he is Mafkir whatever falls. RASHI (DH Im Nefilasah) explains that since figs become disgusting when they fall, and the owner knows that they are going to fall, he has Ye'ush and makes them Hefker from the beginning.
Rashi's words are problematic. The Gemara's answer reconciles the Mishnah with Rava's opinion that "Ye'ush she'Lo mi'Da'as" is considered Ye'ush. Accordingly, even if the owner did not expect the figs to fall, since he would have had Ye'ush had he known that the figs fell, they should be permitted now. Why, then, does Rashi write that the owner knew that the figs would fall and therefore he had Ye'ush from the beginning? It is not necessary to say this according to Rava, who says that the owner's future Ye'ush suffices. (MAHARAM SHIF, LECHEM MISHNEH in Hilchos Gezeilah v'Aveidah 15:15)
ANSWER: Perhaps Rashi understands that the answer of the Gemara is not given exclusively for Rava. Rather, once the Gemara gives this answer, it retracts its original understanding of the Mishnah even according to Abaye. The Gemara now understands, according to both Rava and Abaye, that the difference between figs and carobs is that figs become disgusting when they fall, and therefore the owner is Mafkir them, whereas when carobs fall the owner is not Me'ya'esh from them at all. That is why Rashi writes that the owner knew all along that his figs would fall and was Me'ya'esh from them. Rashi indicates that the Gemara's conclusion applies to Abaye as well as to Rava.
This is evident from the Rishonim who state that according to the Gemara's conclusion, Abaye understand the Mishnah the way that Rava understands it. (See RAMBAN to 22b in Milchamos, and TOSFOS to 22b, DH me'Achar.)
Why does Rashi understand that the Gemara revises its interpretation of the Mishnah even according to Abaye? Perhaps Rashi takes this position because the Gemara later (22b) states that when dates fall beneath a palm tree, the owner has Ye'ush because of the insects and pests that tend to get to the fruits before he does. According to Rashi there (22b, DH Heichi), the Gemara is discussing the exact same situation that the Mishnah cited here discusses. If the Gemara did not alter its understanding of Abaye's interpretation of the Mishnah, it should not be necessary for that Gemara to state that the owner has Ye'ush because of the insects. After all, the Gemara here initially understands that the reason the owner has Ye'ush from retrieving fallen fruits is that passers-by will take them, and not that they will be eaten by insects. If the Gemara here had understood that the owner has Ye'ush because he assumes that insects will eat the fruit, then the fact that the fruit is directly beneath the owner's tree would not prevent the insects from eating it, and it should still be considered a case of "Ye'ush she'Lo mi'Da'as." Rashi therefore explains that the Gemara revises its understanding and now assumes that even according to Abaye, the owner does not believe that passers-by will take fruits from under his tree. Rather, Abaye understands that the owner has Ye'ush because of the insects that will eat the fruits. (In the case of the trees mentioned in the Mishnah in Ma'aseros, the assumption is that the owner is not concerned about insects, either because the fruits discussed here are not as sweet as dates and therefore do not attract insects, or because the Mishnah refers to an area where there are fewer insects. See RITVA to 22b.)