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

WHO IS YOUR TEACHER – BABA METZIA 33A

Forty years ago I sat in the lobby of the King David Hotel in Jerusalem talking with a man we had met while walking on the street. Ezra was from Philadelphia, had made aliyah, and now lived and taught in the Holy City. We had encountered him a few times and he had acquired a special aura for us because he seemed to appear when least expected. That day the conversation turned to terrorist bombings and questions of responsibility. Ezra pointed toward the entry and commented, “See the doorman. If a bomb were secreted in those bags by the door and exploded, he would get all the blame for not being more attentive. But we are sitting here; we see the bags; we are observing everyone as they come and go. Why would we escape blame? We see as much as he does.”

I had never considered that I bore responsibility in that way. If it were my job, of course. But Ezra was correct; responsibility is not limited to those tasks or times for which we are payed. We are responsible for all that we see and encounter. That day Ezra became my teacher.

Who are your teachers? How did they earn that title? I do not grant that title easily. Not everyone who stands at the head of a classroom achieves that status. They are instructors or facilitators, but a teacher is something more. While we may find our teachers in the classroom, we are as likely to find them on the street, among our friends, or in random encounters.

Henry Adams wrote that a teacher “affects eternity; he can never tell where his influence stops.” His insight helps us understand why we are privileged to find only a few teachers in our lifetime. Teachers do more than inform us, they change us. The change may not be obvious. It may not actually occur when we are at that key moment of teaching, but may lie dormant for years. Nonetheless some piece of wisdom passes between us and moves us in powerful ways.

The Mishnah (B. Baba Metzia 33a) gets to a discussion of who qualifies as a teacher through a seemingly odd discussion. “If you should happen to have the opportunity to retrieve an object lost by your father at the same time that you could reclaim one lost by your teacher, whose property should you recover first.” The question strikes at a basic principle. After all, Torah clearly and repeatedly instructs us to honor both father and mother; a command that sits at the center of the Ten Commandments. The Torah does not speak of teachers or rabbis, and certainly does not present them in contrast to parents. So how does the Mishnah come to weigh the relative honor due to parents and teachers?

The mishnah's response contrasts the role played by father and teacher: his father (and mother!) brought him into this world, but his teacher, who taught him wisdom, brings him into the world to come. Our biological birth, they imply, is not the only birth we experience. We enter into worlds within worlds and may, therefore, be birthed multiple times in our life. Our biological genealogy describes only one aspect of our lives. In my book, The Hillel Narratives, I detail Hillel's spiritual genealogy, which includes Moses and Ezra and leads to Akiva and Judah HaNasi. While we know his spiritual genealogy in detail, we know little of his biological background. His teachers and spiritual descendants take precedence over his biological kin.

But what qualifies a person as a teacher? The Gemara offers this range of possibilities:
“His teacher means the one who taught him wisdom, but not the teacher who taught him Bible or Mishnah; these are the words of Rabbi Meir. Rabbi Yehudah says, it means the one from whom he has learned most of his wisdom. Rabbi Yose says, Even if he enlightened his eyes about only one Mishnah, this is his teacher.”

The differences between these three sages offers some interesting reflection on what it means to be a teacher.

Rabbi Meir focuses on the quality of the learning, regardless of the amount. Why are Bible and Mishnah teachers excluded? I suspect because they were recitation type disciplines. You chanted the Bible or repeated the Mishnah to memorize the chapters and verses, but these are not analytical tasks. They do not prepare you for the unpredictable experience of daily life. Wisdom, by contrast, lays a strong foundation on which one can build an holy and honorable life which withstand the unexpected.

Rabbi Judah and Rabbi Yose do not focus on the quality of the material taught, perhaps they have no disagreement with Rabbi Meir. They disagree on whether one can have more than one teacher at a time. Rabbi Yose argues that every person who teaches you even one Mishnah becomes your teacher. You may have one or dozens of teachers. Each may have brought you one step closer to the World to Come, without any one of them having brought you the entire distance. In my own experience I count among my teachers at least one who taught me the meaning of a single letter.

Rabbi Yehudah reserves the title teacher for that one individual who has taught you the majority of your wisdom. This is the position endorsed by the halakhah; that one teacher is known by the title of “Rav Muvhak.” But there is no assurance that you will have only one such rav in your lifetime. The teacher of your youth may be surpassed as you grow older by one who teaches you even greater insights and wisdom. At any given time you will, however, have only one rav, teacher.

Pirke Avot twice counsels one to make (Hebrew, aseh) a teacher for yourself (M. Avot 1:5 and 16). It is an odd choice of words. We are assigned teachers in classrooms, we hire teachers as tutors. We encounter wise people in a variety of settings. But how do we make a teacher for ourself? I believe that the sages of our passage offer possible answers to that puzzle. Rabbi Meir looks to the quality of the teaching, those life skills that give us wisdom and allow us to navigate a confusing world. Rabbi Yose urges us to acknowledge every person who has touched our soul and taught us in a way that impacted our life. And Rabbi Judah bids us to recognize that person who is our guiding light.

Consider those who have affected your life. Who are the people who have been your teachers? In what way have they taught you the intricacies of life? Have you let them know that their teaching, formal or not, has made a difference in your life and that you consider them a teacher? The Sages taught that our teachers deserve high honor. And your teachers deserve your thanks.

© Rabbi Louis Rieser 2010

A hard heart vs. an open hand / Baba Metzia 31b (and Ketubot 67b)

Human dignity is a tricky thing. Respecting and preserving the human dignity of another soul requires us to assess someone else’s sensibilities and sensitivities. We can start with some universal truths (people like to be independent, self-sufficient, and enjoy the respect of others) but precisely what that independence, self-sufficiency, and respect “look like” and “feel like” can range widely from individual to individual. Talmud, in its far-reaching meanderings, often comes back to the sine qua non of human dignity that undergirds all of Jewish thinking and value-making. How far do our obligations extend? Where are the limits drawn?

Baba Metzia jumps into this moving river. I share with you a long passage, Deuteronomy 14:4-11, from which Talmud quotes only verse 8 (bolded below). It is curious that this passage begins with the idea vision of world devoid of poverty, and ends in the reality that poverty will never be entirely expunged from our world. While we hold aloft a vision of the ideal, we must nonetheless live and labor in the world of the real.

In Deuteronomy 15:4-11 we read about the shemittah (sabbatical year). Every seventh year, the land lies unplanted and fallow to renew itself. Debts are forgiven to permit those who have fallen into debt-driven poverty to start anew. Torah expresses the concern that in the waning years of the sabbatical cycle, people might refrain from providing loans to needy people because all loans are canceled in the sabbatical year, and provides this stern warning and exhortation:

There shall be no needy among you – since the Lord your God will bless you in the land that the Lord your God is giving you as a hereditary portion – if only you heed the Lord your God and take care to keep all this Instruction that I enjoin upon you this day. For the Lord your God will bless you as He has promised you: you will extend loans to many nations, but require none yourself; you will dominate many nations, but they will not dominate you. If, however, there is a needy person among you, one of your kinsmen in any of your settlements in the land that the Lord your God is giving you, do not harden your heart and shut your hand against your needy kinsman. Rather, you must open your hand and you shall surely lend him sufficient for whatever he needs. Beware lest you harbor the base thought, “The seventh year, the year of remission, is approaching,” so that you are mean to your needy kinsman and give him nothing. He will cry out to the Lord against you, and you will incur guilt. Give to him readily and have no regrets when you do so, for in return, the Lord your God will bless you in all your efforts and in all your undertakings. For there will never cease to be needy ones in your land, which is why I command you: open your hand to the poor and needy kinsman in your land. (Deuteronomy 15:4-11)

Talmud understands verse 8 as the case of a needy person who is loath to accept a handout. Need engendered by poverty can be alleviated by a loan. But what about a more complex case? What if a person is in need, but the need arises because he refuses to expend his own resources on his own care? (The image of Lyzer the Miser in I. B. Singer’s short story, “Lyzer the Miser and Shrewd Todie” comes to mind here. It’s a marvelous story: treat yourself and read it.) Here, the Gemara offers two viewpoints: (1) We are obligated to provide a loan to insure that the individuals basic needs are met; (2) R. Shimon says we have no such obligation; Torah speaks of precisely the case we would expect: someone without financial means to see to his basic needs.

Rather, you must open your hand and lend him sufficient for whatever he needs (Deuteronomy 15:8). I know this only of one [a poor man] who has nothing and does not wish to maintain himself [at your expense; i.e. he does not want to accept charity]. [Concerning this situation] Scripture says, you shall surely lend him sufficient for whatever he needs. Whence do I know it [that I should provide him a loan] if he possesses his own [financial resources] but does not want to maintain himself [at his own cost]? Torah teaches, you shall surely lend him. But according to R. Shimon, who maintained: If he has his own [financial resources] but refuses to maintain himself [with his own resources], we are under no obligation to him, so do we need ta’avitenu [a doubling of the verb]? Torah spoke in the language of human beings. (Baba Metzia 31b)

A far more extensive version of this discussion is found elsewhere in the Talmud, in Ketubot 67b, where the question of how to deal with someone who exhibits “need” but not “poverty” is addressed head-on. The passage is long (though well worth studying!) so I will provide part, and summarize part.

Our Rabbis taught: Sufficient for whatever he needs (Deuteronomy 15:8) [implies] you are commanded to maintain him, but you are not commanded to make him rich; for whatever he needs [includes] even a horse to ride upon and a slave to run before him. It was related about Hillel the Elder that he bought for a certain poor man who was of a good family a horse to ride upon and a slave to run before him. On one occasion he could not find a slave to run before him, so he himself ran before him for three miles.

Goodness! Are they serious? Do the words “for whatever he needs” means that each person defines his own needs and the community must meet them? What if I say I need a swimming pool, or minimally a hot tub in my backyard? Hillel was so sensitive to human dignity that he recognized that one whose fortunes had been severely diminished experienced a diminution of dignity as well, and he felt obligated to compensate, even to the extent of playing the part of a slave. Hyperbole, to be sure, but let us now lose sight of his point: poverty and affluence are, to some extent, relative; what is fixed is the notion of human dignity.

Ketubot 67b continues with a series of examples of Sages who acted on the model of Hillel until we meet Raba, who questions whether we are obligated to provide “fat chicken and aged wine” at the expense of community tzedakah funds. What seems an extravagance is justified by quoting Psalm 145:15, The eyes of all wait for you, and you give them their food in its (his) time, suggesting that God intends for everyone’s needs to be met on a case by case, individual basis. Then we arrive at a discussion of our same verse Deuteronomy 15:8, echoing Baba Metzia 31b:

Our Rabbis taught: You shall surely lend him (Deuteronomy 15:8) refers to a man who has no means and is unwilling to receive his maintenance [from the poor funds] to whom [the allowance] must be given as a loan and then presented to him as a gift. You shall surely lend him refers to a man who has the means and does not wish to maintain himself [at his own expense] to whom [the allowance] is given as a gift and repayment is claimed from his [estate] after his death, according to R. Yehudah. The Sages, however, said: If he has the means and does not wish to maintain himself [at his own expense] no one need feel any concern about him. To what, however, is the text You shall surely lend him to be applied? The Torah speaks in the language of people.

What follows are several anecdotes about Mar ‘Ukba who sought to deliver tzedakah unobtrusively, not always with great success. And then this:

Mar 'Ukba had a poor man in his neighborhood to whom he regularly sent four hundred zuz on the Eve of every Day of Atonement. On one occasion he sent them through his son who came back and said to him, “He does not need [your help].” “What have you seen?” [his father] asked. “I saw that they were spraying old wine before him.” “Is he so delicate?” [the father] said, and, doubling the amount, he sent it back to him.

Perhaps this is the resolution of the dilemma. Surely, the extreme response of Hillel – enslaving himself to meet the needs of an affluent person who fell on hard times – is more than we would expect of anyone, and surely not what the community is obliged to provide. The conversation between Mar ‘Ukba and his son, however, provides another avenue of consideration: those who seem to need more are perhaps more needy in a way we have not considered. Rather than judging, perhaps we can consider them with compassion and mercy, and thereby find the right balance. In all such cases, delicate and difficult decisions must be rendered, but if we approach people from the side of compassion, not only will our decisions be better, but we will feel better about them. And isn’t that what our passage in Deuteronomy was telling us: do not harden your heart and shut your hand against your needy kinsman.

© Rabbi Amy Scheinerman

GOING BEYOND THE LETTER OF THE LAW – BABA METZIA 30A

“Going beyond the letter of the law” is a familiar phrase, one which comes up in our current study of Baba Metzia. On a whim I googled the phrase and was surprised to find that roughly 2/3 of the hits on Google and other search sites were to Jewish sources. It made me wonder if the Jewish and general usage of the phrase matched, so I did a small comparison study.

Here are some examples of its usage in the general culture:

* Northrup Gruman posts its standards for dealing with Kickbacks, gratuities and such. They state that employees must go beyond the letter of the law to “avoid even the appearance of improper conduct in all of our business dealings.”
* Toyota in Kentucky describes its environmental commitment to the surrounding communities as going beyond the letter of the law to do more than required as part of their corporate citizenship.
* When HP was confronted by the fact that their printers were being sold by outside distributors to Iran, possibly in violation of US law, they vowed to go beyond the letter of the law to stop all such shipments.

Other examples use the phrase to indicate a desire to embrace the spirit of the law rather than focusing on its details. By contrast a column extolling the conservative-leaning Federalist Society considered the phrase a negative quality: “some judges go beyond the letter of the law, usurping the Congressional power to legislate and the Executive power to administer.”

Based on this brief survey I would suggest that in common usage the phrase refers to public efforts to be a good citizen and to act to distance one’s self from the appearance of misconduct. It addresses something greater than the details of the law. While a positive quality in most of these cases, none of them presented this to be a basic or universal value.

In Jewish tradition “going beyond the letter of the law”, lifnim mesurat hadin, is basic. Among the key passages which illustrate this phrase in Talmud is B. Baba Metzia 30a. A tale is told of the scholar, Rabbi Yishmael son of Rabbi Yosi. While walking down a road he encountered a laborer carrying a bundle of wood. The laborer stopped to rest and then asked Rabbi Yishmael for help lifting the bundle. Rabbi Yishmael, according to halakhah was exempt from doing this work which was below his status as a scholar (that’s a discussion for another time), but offered to buy the wood so the laborer did not need to carry it any farther. The deal was completed. The Talmud commends Rabbi Yishmael who could have simply declined to help, but went beyond letter of the law to purchase the goods and relieve the worker of his burden.

The gemara proves its point by examining Exodus 18:20 in which Jethro lays out a moral map for Moses to teach the people: Moses should “teach them the laws and the teachings, and make known to them the way they are to go and the practices they are to do.” The last phrase, “to do”, is interpreted as to act lifnim mesurat hadin. The implication is that going beyond the letter of the law is an integral part of living a moral life.

The gemara underscores that idea when it cites the teaching of Rabbi Yohanan. He states that "Jerusalem was destroyed because they judged there only according to the dictates of law, and did not go beyond the letter of the law.” This is a stunning charge. It means that those who limit their understanding to the letter of the law undermine both law and society. A strict reading of the letter of the law becomes instead a transgression of both law and the moral order.

The classic Torah commentators linked the concept of lifnim meshurat hadin to a few key verses. They teach that this notion is crucial to the very existence of our world.

Ramban, 13th century Spain, as part of his discussion of the verse (Leviticus 19:2) “You shall be holy because I the Lord your God am holy,” says:

This is the way of Torah…for after the warnings about the details of the laws regarding business relationships … God stated the general rule (Deuteronomy 6:18) “to do that which is right and good," that he should do that which is right and equitable and go beyond the letter of the law for the sake of pleasing his fellow.

Ramban connects this concept to the very idea of holiness. It offers us a way to emulate the Holy Blessing One.

Similarly, Rabbi Baruch Epstein in his commentary, Torah Temimah, discusses this concept in relation to Exodus 34:6, the enumeration of God’s thirteen attributes. He cites a passage from B. Rosh HaShannah that asks how God’s attributes can include both truth and mercy then explains:

Hesed, lovingkindness, means going beyond the letter of the law, while Emet, truth, is the attribute of judgment. Once the Holy One saw that it was impossible to rule entirely with pure judgment, Emet, God judged with Hesed, lovingkindness.

He cites Bereshit Rabbah 12 as proof that without the inclusion of Hesed, which he identifies with going beyond the letter of the law, the world could not exist.

According to Jewish understandings, then, to go beyond the letter of the law is both praiseworthy and necessary. More than good citizenship, it is linked to God’s nature and to the very fabric with which the Holy One created the universe.

It is not unusual for common phrases or terms to appear both in Jewish and general English usage, nor is it unusual that the meanings would differ. It helps to take a little extra time to go beyond our normal routine and explore the deeper meanings.

© 2010 Rabbi Louis Rieser

Possession Protection / Baba Metzia 29b

Mark Russell once quipped, “The scientific theory I like best is that the rings of Saturn are composed entirely of lost airline luggage.” Anyone whose baggage has been lost while traveling has probably wondered if this isn’t true. How would you feel about Martians using your stuff until you came to reclaim it? That is the subject of a discussion on Baba Metzia 29b.

For Torah, and Talmud as well, a well-ordered society revolves around the notion that, as Hillel taught, “What is hateful to you, do not do to another” (Shabbat 31a). Indeed, as Hillel taught, “That is the whole of Torah. Now go and learn.” In Baba Metzia, we learn the nitty-gritty of how that principle operates in the case of finding a lost object.

Mishnah teaches:

If one finds books [i.e. scrolls], he should read them every thirty days. If he cannot read, he should roll them. But he should not learn from them something new, and he may not read them with another person.

If he finds a suit of clothes, he should shake it out every thirty days, and spread it out for its need [i.e. for the benefit of the garment], but not for his own honor.

Silver and copper vessels may be used for their own benefit, but not [so much that they become] worn out.

Gold and glass vessels may not be touched until Elijah comes.

If one finds a sack or basket, or any object that he does not customarily take with him, he need not take it.

The general principle uniting these disparate examples is that objects in our care until the owner comes to claim them may be handled for their own sake, but not for ours. Books may be aired, clothing spread out, and vessels used, but none may be worn out or damaged. Gold and glass require no maintenance and hence should not be touched at all.

The Rabbis explore the limits of this principle in the Gemara. They recognize that when you have a lost article in your possession, it is natural to want to make good use of it, and if the use to which you put it is a mitzvah, we have conflicting obligations here: setting the lost object aside and handling it only for its own sake, and the obligation of the mitzvah that could be fulfilled through the lost object. Hence:

Shmuel said: If one finds tefillin (phylacteries) in a sack, he must have their monetary value assessed and set the money aside.

Rabina objected: [Mishnah says:] If one finds books, he should read them every thirty days. If he cannot read, he should roll them. Thus, he may only roll, but [he may not] not sell them and set the money aside.

Abaye said: tefillin can be obtained at Bar Habu [i.e. are easy to purchase] whereas books are rare.

Shmuel presumes the owner of lost tefillin would be pleased to know that his tefillin are being used to fulfill a mitzvah (commandment). Therefore, the finder may set aside their monetary value for when the owner appears to claim them, and in the meantime use them for prayer. Rabina, however, objects that tefillin are covered by the Mishnah’s prohibition against reading found books beyond a month airing out. This elicits the interesting explanation of this seeming discrepancy by Abaye that tefilling are ubiquitous – since every adult man (in his time, only men wore tefillin) required a pair for daily prayer – whereas books are rare. Hence tefillin may be used because they are easily replaced, but books may not be used because they are much harder to come by.

But what about a sefer Torah? Does it follow the rule for tefillin (it is needed on a daily basis) or does it follow the rule for books (it is rare and costly)? The Rabbis bring a baraita (a mishnaic-era teaching that was not incorporated into the Mishnah of R. Yehudah na-Nasi) that speaks of a borrowed sefer Torah because it speaks to the subject of how the scroll is to be treated while under the care of someone other than the owner.

Our Rabbis taught [in a baraita]: If one borrows a Scroll of the Torah from his neighbor, he may not lend it to another person. He may open and read it, but may not study [a subject] in it for the first time; nor may another person read it together with him. Likewise, if one leaves a Scroll of the Torah for safe keeping with his neighbor, he [the neighbor] must roll it once every twelve months, and may open and read it. But if he opens it for his own sake, it is forbidden. Symmachus said: In the case of a new [Torah scroll], every thirty days; in the case of an old one, every twelve months. R. Eliezer b. Yaakov said: In both cases, every twelve months.

The Sages, as well as Symmachus and R. Eliezer b. Yaakov all agree that a sefer Torah follows the rule of books: its preservation trumps the finder’s desire to fulfill a mitzvah through it, because it is a rare and expensive item.

R. Yehudah ha-Nasi (compiler or our Mishnah) now comments that one who borrows a sefer Torah may not turn around and lend it to another with the owner’s permission. This comment seems peculiar to Resh Lakish: wouldn’t we have known that already? We have been discussing found objects, not borrowed objects.

The Master [R. Yehudah ha-Nasi] said: If one borrows a Scroll of the Torah from his neighbor, he may not lend it to another. Why particularly a Scroll of the Torah – surely the same applies to any article? For R. Shimon b. Lakish said: Here Rabbi has taught that a borrower may not lend [the borrowed article], nor may a renter rent it [to another person]. It is necessary to state this for the case of a Scroll of the Torah. I might have said: One is pleased that a precept be fulfilled by means of his property: therefore we are informed [otherwise].

Resh Lakish tells us that the baraita specifies the sefer Torah because, although we would know that we can neither lend a borrowed object nor rent a rented object, we might have though that the owner would make an exception in the case of a sefer Torah and be pleased that a mitzvah might be fulfilled through his property. But this is not a presumption we have a right to make.

We might be surprised at this. After all, doesn’t Torah study trump the responsibility to guard a found object until the owner comes to reclaim it? Yet it is precisely Torah that confers this responsibility! How then could the learning of Torah be permitted to violate the teaching of Torah? A new twist on what John D. Rockefeller, Jr. once wrote, “I believe that every right implies a responsibility; every opportunity an obligation; every possession a duty.”

© Rabbi Amy Scheinerman

FINDERS, BUT NOT KEEPERS

“Can I keep him, Mom? He followed me home and he’s real friendly. It won’t be any trouble; I promise! I’ll take care of him. Can I keep him; can I?”

Confronted by a pleading child and a cute, tail-wagging puppy a parent must remain rational. There is more than meets the eye when this domestic drama emerges.

“You know that there is probably some worried little boy or girl wondering if their pet is okay. They love him too! And he is really a part of their family. We need to try to find his real home. For now you can take care of him while we try to find his owners. But just remember, when we find his owners you have to be brave and give him back.”

As a parent you might admire your child’s passion. Their concern and enthusiasm is not to be dismissed. This scenario, however, presents a variety of ethical considerations. Until you can find the puppy’s home you become the caretakers and there are some costs associated with that. How do you manage the balance between welcoming this cute puppy into your home and exercising your objective duty to simply serve as temporary caretakers?

Finding something of value that needs to be returned changes you. It creates a relationship between you and the person who lost the object. It is not unusual to read news reports of objects, often wedding rings, returned to their owner’s years after they are lost. For example: Boy Digs Up Long Lost Wedding Rings in Yard - wbztv.com. The finder needed to expend time and energy to find the rightful owner. The mother of the 3-year old in the story above connected with the woman who had lost the rings. She says, “I explained to her that my 3-year old son was digging outside and possibly found something that belonged to her. And she was like 'you're kidding me. Those were my rings I lost over thirty years ago.' It was amazing. I just got chills talking about it. It's amazing."

The Torah reminds us that we have an obligation to return lost objects of all kinds:
You shall not see your brother’s ox or donkey go astray and turn away; you must return them to your brother… and so shall you do for his clothing, and so for every lost object which he has lost and you have found. You must not turn away. (Deuteronomy 22:1-3)
While the Torah states our obligation, it remains for the Mishnah to provide the details.

Mishnah Baba Metzia 2:7 offers two examples of how to fulfill this obligation when you find a lost animal.
Any [lost animal] which is capable of work and which requires food can be used for labor and must be fed. And if it is not capable of work but requires food, it can be sold, since torah teaches, “you must return it to him.” Pay attention to how to return it.

The mishnah seeks to balance two competing needs. As much as you have an obligation to see after the well-being of the animal, the owner (when found) bears the obligation to repay you for the costs incurred caring for his possession.

As long as the animal is in your possession you have an obligation to care for its well-being. That can add up. In addition to the simple needs of providing food, a stray animal might require a visit to a vet if there are injuries or other concerns. The simple good deed of holding on to a lost animal for a few days can get expensive.

That is why the mishnah allows one who finds a working animal to use his labor. The animal can pay his own upkeep. (Does a found puppy earn its keep as it entertains your children?) When it works, there are no significant extra costs incurred by the finder and the one who lost the animal can retrieve his property without needing to pay a large penalty.

Which leads to the second case in the mishnah (And if it is not capable of work but requires food, it can be sold), which sounds so harsh. If you found a lost animal, would you look to sell it on the open market? When you look under the “lost and found” category on Craigslist you will not find items listed for sale.

What happens, the Mishnah wonders, if the care you provide for a lost animal exceeds its objective worth? What if you have spent a lot of money for food and materials by the time you find the owner, but the total amount is more than the animal is worth? What if the owners respond that they don’t have the expendable cash to repay that amount for an animal they can replace for free from the shelter? Recognizing that there may be an objective value for this animal the Mishnah allows the finder to sell it so he can return a full value to the owner, rather than run up an unreasonable bill that will need to be paid. In real life I would find it a difficult decision to sell someone else’s possession and convince them it was in their own interest for me to do so.

Dealing with lost animals is only once instance of this rule, of course. The mishnah (Baba Metzia 2:1-2) details objects that must be returned because they have distinguishing marks, such as wedding rings, and objects with no identifying marks, such as coins, that do not need to be returned.

None of this is obvious. The common wisdom, “finder-keepers, losers-weepers,” suggests any lost object is fair game, but ignores the truth embedded in the Torah that the loser is our brother. A relationship exists between the one who finds and the one who loses. The one who finds a lost puppy can imagine the sorrow of the one who lost their pet. Since the Torah recognizes the implicit relationship that exists between finder and loser, it teaches we have a positive obligation to return lost objects.

PS. For a longer, more legal look at this principle, look at this related article:
Jewish Law - Articles - Finders Keepers? First Impressions ...

© 2010 Rabbi Louis Rieser

It doesn't have to be a "finders keepers losers weepers" world / Baba Metzia 58b

My husband lost his iPod at the airport in Dan Diego several months ago. It was returned within 10 minutes, even before he knew it was missing. The finder turned on the iPod, found my husband’s name and cell phone number, and called him. This is the ideal: a finder who is scrupulously honest, and a claimant who can easily identify his lost property because of its distinctive characteristics. But in truth there is much room for lies and deception in the matter of lost articles, and Mishnah seeks to find the limit to responsibility and the boundary for presumption of deception.

But first, Torah tells us it should not be a “finders keepers losers weepers” universe: If you see your fellow’s ox or sheep gone astray, do not ignore it; you must take it back to your fellow If your fellow does not live near you and you do not know who he is, you shall bring it home and it shall remain with you until your fellow claims it; then you shall give it back to him. You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find: you must not remain indifferent. (Deuteronomy 22:1-3)

Torah is trying to build a societal culture of consideration in which people go out of their way to take care of one another as they would want others to do for them. But how much is it reasonable to require, and at what point is so much required that people are unwilling to comply? Mishnah seeks to examine those boundaries, and in so doing reveals the inherent danger of our assumptions about human nature.

The first half of Mishnah Baba Metzia 2:7 is found on daf 28b:

If [the claimant] said what the lost article is, but did not [describe] its identifying marks, it should not be given [to the claimant]. If he is a deceiver, even if he says what the identifying marks are, it should not be given to him, as it is written, until your fellow claims it (Deuteronomy 22:2)[meaning] “until you examine your fellow [to determine] whether or not he is a deceiver.”

If I stand out in the middle of the town square to proclaim that I have found a lost article, what should I say? Should I simple say, “I found something!” and wait to see who lost it? Should I say what I found? If I say what I found, should I describe identifying marks (e.g., “I found pitcher’s mitt with a red stain on the inside near the thumb” or “I found a Nokia cell phone with a neon-orange cover”) or should I simply say, “I found a pitcher’s mitt” or “I found a cell phone” and require the claimant to provide details – such as the red stain or the neon-orange cover – to prove he is the rightful owner? How much do we trust people to be honest and not claim items that are not theirs because the lost-and-found bin strikes them as a treasure-trove of free stuff?

Mishnah first attempts to balance the benefit of having people return found items, with the concern that false claimants may appear. Claimants are required to articulate identifying marks to establish their rightful claim. But then concern is expressed about those who would cheat and deceive the finder: how do we handle this possibility? We don’t want to hand over valuable items to such people, and thereby deprive the rightful owner from reclaiming his property. Here the amoraim of the mishnah offer us Dt. 22:2 with a new twist: “until our fellow claims it” is read “until you examine your fellow to determine whether or not he is a deceiver who claims it.”

But how do we know if someone is a deceiver and a cheat? Is this something revealed by previous experience? Or must we examine each and every claimant? Moreover, do we presume people are honest? Or do we presume a priori that their motives are suspect?

Gemara explores this conundrum. If we hand over a lost articles to someone, we might well be giving away something to a deceiver, and depriving the rightful owner of his property. Yet what is the social cost to presuming people are deceptive and should be examined as to their honesty in each and every case? Gemara offers a curious anecdote that delivers a stern warning about prejudging people:

Our Rabbis taught: At first, whoever lost an article would articulate its identifying marks and take it. When deceivers increased in number, it was enacted that he should be told, “Go and bring witnesses that you art not a deceiver, then [you may] take it.”

It once happened that Rav Pappa's father lost a donkey, which others found. When [the father of Rav Pappa] came before Rabbah bar Rav Huna, he told him, “Go and bring witnesses that you are not a deceiver, and [then you may] take it.” So he [the father of Rav Pappa] went and brought witnesses. [Rabbah bar Rav Huna] said to them, “Do you know him to be a deceiver?” “Yes,” they said. “I, a deceiver?!” [the father of Rav Pappa] exclaimed to them. “We meant that you are not a deceiver,” they answered him. “It stands to reason that one does not bring [witnesses] to his disadvantage,” said Rabbah bar Rav Huna.

When Gemara says, “When deceivers increased in number” we might think that someone had examined crime statistics and determined that there is objective truth to this observation. Perhaps in the aftermath of the destruction of the Second Temple and the impoverishment of the Jewish community in Eretz Yisrael, this was the case, but the Gemara was written in Babylonia where the Jewish community was not uniformly impoverished. Moreover, Rabbah bar Rav Huna, the early fourth century amora (d. 322 C.E.) was wealthy in his own right, the owner of fields and forests from which he made his living (Baba Metzia 108a) and he headed an academy in Sura (though, it seems, not the primary academy which his renowned father, Rav Huna, had led).

What is clear is that Rabbah bar Rav Huna assumes the worst of people: they are deceivers until proven otherwise. Hence he requires that even a well-respected man, none other than the father of Rav Pappa, bring witnesses who will attest to his character. And when Rav Pappa’s father does this, Rabbah bar Rav Huna asks his question in such a contorted and negative manner that the witnesses inadvertently testify against the character and integrity of Rav Pappa’s father. They expect Rabbah bar Rav Huna to ask, “Do you know him to be an honest man?” and so the response “Yes” rolls right off their tongues. But this is not how Rabbah bar Rav Huna formulates the question. He asks, “Do you know him to be a deceiver?” The father of Rav Pappa, listening carefully to the exchange, is astonished. He expresses his bewilderment, at which point the witnesses realize what has happened and immediately change their testimony. They have been deceived, and it turns out that Rabbah bar Rav Huna is the deceiver.

Did this happen due to the particular temperament of Rabbah bar Rav Huna? Talmud knows him as a modest man who treated those beneath him in learning and social status with consideration and respect. His treatment of the witnesses brought by Rav Pappa’s father strikes us as completely out of character. Could this be Gemara’s warning that deception is a contagion? When we perceive others as deceptive-until-proven-otherwise, as the Mishnah could be construed to suggest, then we fall into the trap of presuming everyone is a deceiver, and therefore resort to deceptive means to reveal their deceptive ways? When that happens, basic trust is undermined, and indeed “deceivers increase in number.” If, however, we presume that everyone will turn on the iPod in order to locate the owner, we spread the contagion of integrity, and build the society of decency we envision.

© Rabbi Amy Scheinerman