The Ins and Outs of "Must" and "May" / Baba Metzia 37-38

The Talmud’s concern about lost articles, and our responsibility to care for lost articles we acquire until the rightful owner can be found, as well as its discussion of the rights and duties of a bailee caring for someone else’s property, cross paths on daf 37b – 38b thanks to the view of Rabban Shimon b. Gamliel.

We begin with the mishnah on 37b:
One who deposits fruit with his friend [for safe keeping], even if [the fruit] is beginning to rot, he may not touch it. Rabban Shimon b. Gamliel says: he sells it [the fruit] by the authority of a court because he is like someone who is returning a lost item to its owners.

The anonymous opinion says that I may not do anything with produce left in my care, even if it is rotting and will soon become utterly worthless. It’s not mine to use, eat, sell, or touch. I am just the bailee. Rabban Shimon b. Gamliel, however, views the situation in light of what Talmud says about lost articles: the value of the fruit is about to take a drastic nosedive. Therefore, I should obtain permission from a court to sell the fruit before it loses all value and thereby salvage something for the owner. When the owner returns, I can hand him the money from the sale of his fruit. Presumably, he will pleased that his fruit did not come to a total loss. Or will he?

Two defenses of the anonymous opinion are raised immediately in the gemara The first addresses the assumption just articulated. Rav Kahana tells us, “a person prefers a kav [a kav is a volume measure equivalent to 1.4 liters] of his own to nine kabim of someone else’s.” Hyperbole aside, the point is that most people would prefer the fruit they had grown and harvested, intact, to anyone’s else. I can understand this with regard to clothing, jewelry, cooking utensils, or hand-made items, but fruit? Really? Fruit is entirely fungible. And rotting fruit? The second defense of the stam (anonymous) opinion is ascribed to Rav Nachman bar Yitzhak, who tells us that the owner of the fruit might have designated it as terumah or ma’aser, without the bailee being aware. Terumah and ma’aser are tithes on produce grown in the Land of Israel. They were given to the priests, and until separated from the rest of the crop, the owner could not eat the rest of the produce he had harvested. Once designated for the priests, terumah and ma’aser became hekdesh (consecrated); this means that were the bailee to eat or sell them, he would be committing an act of me’ilah (misappropriation of Temple property). Rav Nachman tells us that the bailee may not sell the fruit because then he would be committing me’ilah.

The gemara explores the situation by raising, and analyzing, several objections. On daf 38, the gemara introduces a baraita that tell us:

One who deposits fruit with his friend and it rots, or wine and it turns sour, or oil and it becomes rancid, or honey and it crystallizes, [the bailee] may not touch it; these are the words of Rabbi Meir. But the Sages say: he makes a remedy for them [the spoiling objects] and sells them on the authority of a court. And when he sells them, he must sell them to others, and may not sell them to himself…

We then find this assertion:

Rabban Shimon b. Gamliel says: he sells them [the fruit] [by the authority of] a court because he is like one who returns a lost article to its owners. It was said: Rabbi Abba the son of R. Yaakov said in the name of Rabbi Yochanan: the halakhah follows Rabban Shimon b. Gamliel. And Rava in the name of Rav Nachman said: the halakhah follows the Sages.

What is the difference between Rabban Shimon b. Gamliel’s opinion in the mishnah (on 37b) and again in the baraita above, and the Sages’ opinion as expressed in the baraita quoted on 38b? There are appears to be two differences:

1. Rabban Shimon b. Gamliel considers selling the fruit an obligation, while the Sages give the bailee permission to sell the rotting fruit, but do not require him to do so.
2. When Rabban Shimon b. Gamliel justifies this obligation by treating the rotting fruit as a soon-to-be lost object (monetarily); thus the bailee must salvage some value for the owner. The Sages treat the fruit is merely an item entrusted to the bailee, and hence do not make the bailee responsible for its monetary condition when natural deterioration takes place.

What is at stake here? On the one hand, there are many occasions in this scenario for something to go wrong and resentments to arise. Perhaps the owner will resent the bailee selling his fruit (could it be that Rav Kahana is correct?). Perhaps the bailee will resent the additional burden of running to court for authorization to sell, and then the time and hassle of hauling the fruit to market. After all, all he agreed to do was store the fruit in his basement. Perhaps if the bailee sells the fruit in an effort to limit the financial loss suffered by the owner, the owner may feel that the bailee undersold the fruit and he has been cheated of the profit due him. Rabbi Shimon b. Gamliel’s model opens the door to all these and more.

If Rabban Shimon b. Gamliel’s opinion is accepted as halakhah, the model is lost property, and the bailee must sell the fruit, with all the possible consequences delineated above. If, however, the Sages opinion is accepted as halakhah, the model is that of serving as a bailee, and no further effort is required, though one may choose to exercise sound and kind judgment and seek to limit the financial loss of the owner of the fruit.

In our conversation, Rabbi Rieser offered an interesting and inverse, analogy: The by-laws of his congregation say that a board member who misses three meetings must be removed from the Board and the president fills the vacancy. This sounds draconian, but it is ironically the more lenient and safer approach than the alternative: the president may remove the Board member. First, the president is free to fill the vacancy with the very person who was removed for missing three meetings. Second, if the by-laws were to say that one who misses three meetings may be removed from the Board, this would open the president to suspicion of capriciousness or favoritism. By saying must be removed, the president can hold a confidential conversation with the Board member who has missed three meetings and inquire if there is a problem precluding attendance, and whether this person is still committed to serving on the Board, and then make an appropriate decision without sitting under a cloud of suspicion.

Where the synagogue by-laws create flexibility by stating “must,” the Sages achieve flexibility and avoid the possible problems implicit in selling the rotting fruit by saying “may.”

© Rabbi Amy Scheinerman