One of the chief functions of the Talmud is to make biblical law more practical. Often this means spelling out details that the Bible elides, as when the Talmud determines exactly what kinds of work are forbidden on Shabbat. But it can also mean moderating the demands that biblical law makes on Jews. God has the authority to simply tell Jews to do what is right; but the rabbis know that doing right is difficult, ambiguous, and often impractical, and so they often interpret the law in more lenient ways. In part, this difference reflects the nature of the society to which the laws are meant to apply. The God of the Torah is giving orders to a relatively small population of Jews living alone in a desert encampment, while the rabbis of the Talmud are dealing with a much more developed society, urban and mercantile, in which Jews are dispersed among a larger population of gentiles. Matters that would have been straightforward for Moses and Aaron are much less so from the perspective of the Roman and Persian empires.
Chapter Two of Tractate Bava Metzia offers a good example of how the Talmud transforms an absolute Torah commandment into a contingent human law. Deuteronomy 22 instructs Jews that it is their duty to return lost property to its original owner: “You shall not see your brother’s ox or his sheep wandering and disregard them; you shall return them to your brother.” If a Jew finds lost property and can’t locate or doesn’t know the rightful owner, the finder is obligated to keep it until the owner comes to claim it: “You shall bring it home to your house, and it shall be with you until your brother requires it, and you shall restore it to him.” There are no limitations on this duty; it seems to apply to all kinds of property, and for an indefinite period of time.
But you don’t have to think about this law for very long for its inadequacy to become apparent. What happens to a found item if the owner never comes to claim it? And how do you know if the person who does claim it really is the rightful owner? It is these kinds of questions the rabbis seek to answer, and they begin from the assumption that the right of an owner to reclaim lost property is not unlimited. Here we meet again a concept that has come up often in the Talmud: ye’ush or “despair.” Once a person has despaired of regaining his lost property, it becomes ownerless, and anyone who finds it can claim it.
“Despair” makes a certain amount of sense as a legal criterion for ownership, but it also presents problems. As the Gemara asks in Bava Metzia 21b, is this despair a subjective, psychological condition, or is it an objective description of a person’s relationship to his lost possession? Do you actually have to feel despair to be in despair, in a legal sense? If so, what happens in a situation in which a person loses property—say, drops his wallet—but doesn’t know that he has lost it? Presumably, that person could never be in despair, because he didn’t know he had suffered a loss in the first place. That means that whoever finds the wallet could never become its rightful owner. But how can the original owner prove his knowledge, his intention, his state of mind?
To avoid this murky terrain, the rabbis choose to define despair in more concrete terms. What matters is not whether a specific individual actually did despair of recovering his property, but whether the average rational person would despair in the same situation. On this basis, the rabbis distinguish between different categories of lost property. If a person finds “scattered produce, scattered coins … baker’s loaves, strings of fish, cuts of meat,” and certain other designated items, we read in the Mishna on Bava Metzia 21a, then he becomes their owner automatically, and does not have to look for the original owner. What these items have in common is that they have no distinguishing marks by which the original owner could identify them. As a result, anyone who loses them would, or should, immediately despair of getting them back, thus rendering them ownerless.
This, at any rate, is the view of Rava: “When he discovers that it fell from him, he will despair, as he says: ‘I have no distinguishing mark on the item.’” But Abaye, who is Rava’s great antagonist in the way that Shammai was Hillel’s, disagrees with this interpretation. For Rava, despair can be assumed on logical grounds; but for Abaye, it must be actually experienced in order to apply legally. The Gemara analyzes both sides of the argument at some length, taking up each of the examples listed in the Mishna. For instance, when a person loses “scattered coins,” is it logical to assume that he is unaware of the loss, or should we assume that he notices it? If the former, then “despair” would apply unconsciously, as Rava holds; if the latter, then the despair would be based on an actual recognition of loss, as Abaye says. With coins, the Gemara concludes, a person does usually notice his loss, because “a person is prone to feel his money pouch constantly.” In the end, the Gemara sides with Abaye—a rare conclusion, because in general Rava prevails over Abaye when they disagree.
Other circumstances can also lead presumptively to despair of recovering lost property, even if it does bear distinguishing marks of ownership. When an animal or object is swept away by a flood, or carried off by a bear or lion, or lost in a crowded public place, they are effectively lost for good, so that whoever finds them becomes the new owner. This is the statement of Rabbi Shimon Ben Elazar; but the Gemara challenges it in one specific respect. If the item is lost in place “where the multitudes are found,” does it make a difference whether these multitudes are gentiles or Jews? After all, gentiles have no legal obligation to return a Jew’s lost property, so an item lost among gentiles should lead to despair of ever getting it back. But Jews are legally obligated to “proclaim” found property, to spread the word about it in order to inform the original owner. So if you lose an item in a synagogue, for example, you might reason that you should not despair, since a Jew will find it and proclaim it.
Eventually, after an extended argument, the rabbis conclude that Shimon Ben Elazar’s principle holds among a multitude of Jews as well as a multitude of gentiles: Anyone who loses an item in a public place, be it a synagogue or a marketplace, has lost it forever. Even if the original owner does somehow track down his property and tries to reclaim it, the finder does not have to give it back. Rava clearly wondered about the fairness of this rule, asking: “Isn’t the owner standing and screaming” that the item belongs to him? How can you refuse to turn over found property when the owner is standing right there in front of you? But Rav Nachman has a stern answer: “He becomes as one who screams about his house that collapsed or about his ship that sank into the sea.” That is, the property, once lost, is lost forever, just like a sunken ship; it is a case of force majeure, which there is no use arguing about. This feels quite opposed to the spirit of the original law in Deuteronomy, but the rabbis are comfortable with such differences; they know that any workable system of law will sometimes have to sacrifice justice to practicality.
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