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Babylonian Talmud: Tractate Baba Mezi'a
our Mishnah would then be in accord with the Rabbis.1 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!2 — 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.3 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'?4 It must therefore be concluded that it was intended to let us know that in the first clause also he stated 'first'.5 And the other?6 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'.7
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 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],9 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].10 Raba asked R. Nahman: [A Baraitha teaches:]11 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.'12 But if he said to him: 'Do work for me to-day.' the labourer's find belongs to the employer!13 — He [R. Nahman] answered him: A labourer is different, as his hand is like the hand of his employer.14 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,15 for it is written: For unto me the children of Israel are servants; they are My servants16 — but not servants to servants.17
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]!18 — [it is because our Mishnah deals with a case] in which he said, 'Give me it,' and did not say, 'Acquire it for me.'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]24 but did not wish to acquire it by means of [his four cubits].
Baba Mezi'a 10b
R. Papa said: The Rabbis instituted [the law of the] four cubits only in a public place.1 but the Rabbis did not institute [such a law] in a private person's field.2 And although the Divine Law gave [the poor person] a right therein, it gave him the right to walk in it and glean its corners, but the Divine Law did not give him the right to regard it as his ground.3 Raba said: R. Jacob b. Idi raised an objection from [the tractate of] Nezikin: IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO SEIZED IT IS ENTITLED TO ITS POSSESSION — now if you will say [that] the four cubits of a person acquire for him [an ownerless object] everywhere, let his four cubits acquire it for him [in this case also]? — Here we deal [with a case] where he did not say, 'I wish to acquire it.' But if the Rabbis instituted [the right of the four cubits], what does it matter if he did not say it? — As he fell [upon the object] he made it clear that he wished to acquire it by falling [on it] but did not wish to acquire it by means of the four cubits. R. Shesheth said: The Rabbis instituted [the law of the four cubits] in regard to a side-street, which is not crowded, [but] in regard to a high road, which may be crowded, the Rabbis did not institute [this law]. But does it not say 'everywhere'? — [The term] 'everywhere' is to include the [ground on both] sides of the high road.4
Resh Lakish said further in the name of Abba Kohen Bardala: A girl who is [still] a minor5 has neither the right [to acquire, an object by means] of her 'ground'6 nor the right [to acquire an object by means] of her 'four cubits'.7 But R. Johanan said in the name of R. Jannai: She has the right, both in regard to her ground and in regard to her four cubits. Wherein do they differ? — One8 is of the opinion that [the scriptural term] 'ground'9 is included in her 'hand'; just as her 'hand' acts for her, so her 'ground' also acts for her. But the other10 is of the opinion that 'ground' [acts] In the capacity of 'agent';11 and as she has not the power [while she is a minor] to appoint an agent to act for her12 neither can her 'ground' act for her. But is there anyone who says that 'ground' is regarded as 'agent'? Was it not taught: [If the theft be found at all] in his hand [alive];13 — [from this] I would gather [that the law applies] only [when it is found in] 'his hand': how do we know that the same law applies [when the theft is found on] his roof, in his court-yard and in his enclosure?14 Because we are told: [If the theft] 'be found at all',15 [which means]: 'wherever [it may be found].'16 Now if your view is that 'ground' [acts] because it is regarded as agent, then we must conclude [that there] is an agent for a sinful act,17 whereas it is held by us18 that there is no agent for a sinful act?19 — Rabina answered: We say 'there is no agent for a sinful act' only when the agent is subject to the law prohibiting the act, but in regard to [a thief's] 'ground', which cannot be said to be subject to the law prohibiting the act [of stealing] the responsibility [does not lie with the agent, but it] lies with the originator [of the deed]. But if so — what if one says to a woman or a slave: 'Go and steal for me,' seeing that they are not subject to the law prohibiting the act [of stealing].20 does the responsibility in this case also lie with the originator [of the deed]? — I will tell you: A woman and a slave are subject to the law prohibiting [theft], only they are temporarily unable to pay,21 as we learnt: When the woman has been divorced and the slave set free, they are obliged to pay.22 R. Sama said: When do we say, 'there is no agent for a sinful act'? — [Only in a case] where [the agent is at liberty to choose: to] do it if he wishes, and not do it if he does not wish. But in regard to a 'ground' [where. e.g., a stolen animal is found], seeing that it has no will but must receive [what is deposited therein, the responsibility lies with the originator [e.g., of the theft]. Wherein do they differ?23 — They differ [in the case where] a priest says to an Israelite: 'Go and betroth for me a divorced woman'24 or [where] a man says to a woman:25 'Cut around the corners of the hair of a minor:'26 according to the version which says that whenever [the agent has the choice to] do it if he wishes, and not to do it if he does not wish, the responsibility does not lie with the originator; here also he has the choice to do if he wishes and not to do it if he does not wish, [and therefore] the responsibility does not lie with the originator. But according to the version which says that whenever the agent is not subject to the law prohibiting the act, the responsibility lies with the originator, in these [cases] also, seeing that [the agents] are not subject to the laws prohibiting the acts, the responsibility lies with the originators. But is there anyone who says that 'ground' is not included in [the term] 'hand'? Has it not been taught: [And he shall give it] in her hand27 — from this I would learn only that 'her hand' acts for her. How do we know [that] her roof, her courtyard and her enclosed space [also act for her]? Because the Scriptural verse emphasises, 'And he shall give', [which implies that he may give it to her] anywhere.?28 With regard to a divorce there is no difference of opinion [and all agree] that 'ground' is included in her 'hand'. The difference of opinion exists only as regards a found object: One29 is of the opinion that
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