Mishnah Bava Metzia, chapter 1

Mishnah One 1) If two people are grasping a cloak: One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak. 2) (If) one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than half, and the former takes ¾ and the latter takes ¼.

Explanation—Mishnah One This Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him. If they were to bring witnesses the judges would rule according to their testimony. In the absence of witnesses the judges must rule based on other assumptions. The means of ensuring that the person was telling the truth was in many cases, including this one, an oath. One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely. Therefore taking an oath is a strong deterrent to lying. Mishnah Two 1) If two men were riding on an animal, or one was riding and the other was leading the animal, and one of them said, “The animal is all mine”, and the other said “It is all mine.”, they each swear that they don’t own less than half of the animal and they split it. 2) If after the case is settled, they both admit to the others claim, or if there are witnesses they can split the animal without an oath.

Explanation—Mishnah Two This mishnah is similar to the previous mishnah and just deals with a different disputed object. In the second clause the mishnah states that if they agree to the other party’s claim or if there are witnesses that the animal is owned by both parties, they split the animal without an oath. The function of the oath is to ensure that the person is telling the truth. When there is no dispute, or when there are witnesses who testify, there is no need for an oath. Since it is preferable to avoid oaths altogether the two may split the animal without an oath.

Questions for Further Thought: • Mishnah one: When a person claims that the entire cloak is his, why does he swear that he doesn’t own less than half? What would happen if each person swore that it was all his? • Mishnah one: Why in the second clause does the person who swore that it was all his receive ¾ whereas in the first clause he receives only ½? If two people are grasping a cloak: One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak. ( one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than ¼, and the former takes ¾ and the latter takes ¼. The first two mishnayoth of Bava Metzia deal with cases where two people both claim ownership over an object which they are jointly holding. This Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him. If they were to bring witnesses the judges would rule according to their testimony. In the absence of witnesses the judges must rule based on other assumptions. The means of ensuring that the person was telling the truth was in many cases, including this one, an oath. One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely. Therefore taking an oath is a strong deterrent to lying.

If a man was riding on a beast and saw lost property and said to his fellow, “Give it to me”, and the other took it and said, “I have acquired it”, he (the has acquired it. But if after he gave it to him he said, “I acquired it first”, he has said nothing. In the first section of the mishnah a person saw an object while riding on an animal and told his friend to pick it up for him. When his friend picked it up he claimed it for himself. According to the mishnah the person who picked it up can claim title to the object. If, however, the person picked it up and then gave it to his fellow, he cannot subsequently claim title. The person’s claim to ownership must come at the same time that he actually has possession of the object and not after he has already given it to someone else.

Questions for Further Thought: Mishnah three: According to the mishnah by merely telling the other person to pick it up for him the person riding on the animal does not acquire the object. Why not?

If a man saw people running [in his field] after lost property [such as] a deer with a broken leg, or pigeons that couldn’t fly, and he said, “My field acquires [them] for me”, he has acquired them. But if the deer was running normally or the pigeons flying, and he said, “My field acquires [them] for me”, he has said nothing. In this section we learn that under certain circumstances a person’s field can acquire something for him. In such a case the animal is acquired not by physical possession by the claimant but by the animal being on his field. If the person sees people running after a lost object in his field and that lost object cannot move off his field he can acquire it by saying that his field acquires it. If, however, the animal can run or fly and therefore is not “stuck” on the person’s field, the field cannot acquire the animal. In other words in order for the field to acquire the animal on behalf of its owner three conditions must be fulfilled: 1) other people have not claimed it (in the mishnah others are running after it but have not reached it; 2) the animal is physically unable to leave the field; 3) the owner of the field makes a claim of acquisition over the animal.

Questions for Further Thought: Mishnah four: If my animal runs onto another person’s field and the other person claims that his field acquires the animal for him, does the animal now belong to him? How can you figure out the answer to this question from the mishnah?

That which is found by a man’s minor son or daughter, and that which is found by his Canaanite slave or female slave, and that which is found by his wife belongs to him. A father (assumed in the Mishnah to be the head of the household) who is financially supporting his children can claim ownership over any financial benefit they might bring him including, as we learn here, found objects. In other words in return for his financial support, they must give him any of their earnings. A Canaanite (i.e. non-Jewish) slave or female slave is totally owned by their owner. They do not have the ability to own possessions and therefore anything they find belongs to their master. Finally, a married woman who is receiving financial support from her husband, gives him in return any of her earnings, including found objects. Note, that the relationship between a father and his children and a husband and his wife is one in which the latter are guaranteed support, even if they earn nothing. In such a familial structure allowing the child or wife to keep found objects while still receiving financial support from their father/husband may cause him to resent them, ultimately to their detriment.

That which is found by his son or daughter that are of age, and that which is found by his Hebrew slave or female slave, and that which is found by his wife whom he has divorced, even though he has not yet paid her ketubah, belongs to them. On the other hand, a father’s financial control over his children does not extend to his adult children who are not supported by him. What they find belongs to them. Also, a Hebrew slave is treated in the Mishnah to be more similar to a hired worker who can own his own possession. Anything the slave finds therefore, belongs to him/her. Finally, a divorced woman does not owe her husband any financial gains she accrues after the divorce. This is true even if he has not paid her ketubah, meaning the divorce settlement. In such a case he is still obligated to provide her with food, clothing and shelter. Nevertheless, since he divorced her, he does not receive any object she might find.

Questions for Further Thought: • Mishnah five: Why doesn’t the mishnah say that as long as the husband has not given his divorcee her ketubah and is therefore supporting her, he would receive any object which she found? What might be a problem caused by such a law?

Questions for Further Thought: • Mishnah six: According to Rabbi Meir, if one finds a debt document in which there is no lien, he may return it to the creditor. Why is he allowed to do so, and why would you think he should not?

If a man found bills of divorce, or writs of emancipation or wills, or deeds of gifts, or receipts, he should not return them, for I might say, “they were written out, and the writer might have changed his mind and decided not to give them.” In this short mishnah are listed types of documents where one person gives something to another person, whether it be a divorce given to a wife by her husband, freedom to a slave from his master, inheritance to an inheritor, a present, or a receipt. These documents would normally be kept by the recipient. If one of these was found one might have expected to return it to the recipient, i.e. the wife, slave, etc. However, the mishnah states that they should not be returned. Since it is possible that the writer wrote the document and subsequently changed his mind and did not give the document, we cannot be sure that the recipient lost it.

Questions for Further Thought: If the giver of one of the documents mentioned in this mishnah told the finder that he had indeed given the document to the recipient, would the finder then return it to the recipient? How is this different from the case in the previous mishnah?

If he found documents in a satchel or bag, or a bundle of documents he should return them. How many count as a bundle of documents? Three tied up together. If a person finds documents in an identifiable bag he should return them to the person who can identify the bag. In the upcoming chapter we will learn about identifying lost objects.

Rabban Shimon ben Gamaliel says: [If one found three documents in which] one borrowed from three others, they should be returned to the borrower. But if [one found three documents in which] one loaned to three, they should be returned to the lender. A set of three documents found together and all containing one name, was in all likelihood lost by that named person. Therefore if three documents state that one person borrowed from three others, it is reasonable that they belonged to the borrower. If the three documents all contain the name of the same creditor who loaned to three different debtors, it is reasonable that the documents belonged to the creditor.

If a man found a document among his documents and he does not know what is its nature, it must be left until Elijah comes. If a person finds a document amongst his documents that contains the name of a creditor and a debtor, but he doesn’t know who gave him the document, and therefore he doesn’t know if it was paid off, he should hold the document until Elijah comes. In other words he shouldn’t get rid of the document but neither is he permitted to give it to either the creditor or the debtor.

If there were postscripts amongst them, he should do what is stated in the postscript. If he finds amongst his documents torn or unreadable documents which have with them postscripts which state what needs to be done with the document, he should do what is in the postscript, even though the document itself is torn or unreadable.

Questions for Further Thought: Mishnah eight, section two: Why in this case is the finder supposed to return the lost documents? Why don’t we worry that they were lost by the writer who changed his mind after writing them and before giving them?