Bartenura on Mishnah Bava Metzia

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1.1.1
שנים אוחזין בטלית – In the Gemara (Bava Metzia 7a), it maintains our Mishnah [deals with the case] such as one of them grabs hold of threads that are at the border of the garment from this side, and another grabs hold of threads that at the border of the of the garment from that side, but if they were cleaving to the garment itself, this one takes up until the place where hand reaches and that one takes up the place where his hand reaches, and the rest they would divide equally. , and through an oath.
1.1.2
זה אומר כולה שלי – I purchased it and/or it was sold to me by the seller and not to you. And when the seller sold [it] to one of them and took the money from both of them, one of them with his knowledge and the other one against his will, and he (i.e., the seller) does not know which one was with his knowledge and which one was against his will. For if he had known, and he would have said: “to this one, I sold [it].” There would be here one witness. And the one opposite him would be liable for an oath from the Torah, to contradict the witness. But now that he does not know, both are sworn to this oath that is mentioned in our Mishnah. And by law, they would divide [the garment] without an oath, but the Sages enacted that neither of them at all can take it without an oath, in order that everyone wouldn’t go and seize the garment of his fellow and say, “it is mine.” And it was necessary for the Tanna [of our Mishnah] to teach us that when this one says, “I found it, “that is through [an act of] finding it, and the other who says, “it is all mine,” that is through a commercial transaction. For had the Tanna [of our Mishnah] [only taught] a found object, I might think that it is through a found object [only] that the Rabbis imposed an oath, because they have taught a leniency to grab hold [of the corner of the object] inappropriately, so that my fellow would not have nothing missing in it, I will go and grab hold of it and divide it in public, but [regarding] a commercial transaction, if he had no need for it, he would not go after it to purchase it, and the person who comes to divide it with him and give him half of its monetary value, which is inappropriate, causing him loss and that is not to say that he is teaching that it is permitted to do so. I would say that the Rabbis did not impose upon him an oath. But if [the Mishnah] only taught about commercial transactions, I would say that is only upon commercial transactions that the Rabbis imposed upon him an oath because they are teaching a leniency and he [would] say, my fellow gives me money and I give money, now it is necessary for me, I will take it, and my fellow will have to trouble himself to go and purchase another one. But, regarding a found object, where you don’t have to say this, I would say, no, hence, it is necessary [for the Mishnah to teach both about found objects and commercial transactions].
1.1.3
ישבע שאין לו בה פחות מחציה – but he would not be sworn to an oath [saying] “it is all his,” as he would claim from the outset. For all of it would not be given to him. But if from when he claimed that half of it was his that it should be given to him, he would weaken his position from his first statement – when he said that it was all his. Therefore, he takes an oath that he does not have any less than half, which implies by this – that all of it is mine, as he had said initially; but according to your words, where you do not believe me regarding all of it, [I am taking] an oath that I have [a stake] in it and I have no less than one-half.
1.2.1
היו שנים רוכבים על גבי בהמה – this comes to teach us that a rider purchases, and even though he does not direct the animal [by leading it] as the animal does not move from its place.
1.2.2
או שהיה אחד רוכב ואחד מנהיג – at the time when he rides, he stirs it up with his legs so that when the animal moves in consequence of this, the rider and the leader are identical , but if there only was a rider alone, the leader purchased the animal; the rider did not purchase the animal. But if they admitted or witnesses came even after the law was decided for them, that they should divide it with an oath, they divide it without an oath [administered].
1.3.1
אמר לחבירו תנה לי וכו' – but if he said: “I have taken possession of it,” the rider has purchased it, and the leader cannot say: “I have taken possession of it.”
1.3.2
לא אמר כלום – that he acquired it when he drew/seized it from his fellow’s hand, and all the while that it was in the hand of the one who lifted it, it is was ownerless.
1.4.1
זה שהחזיק בה זכה בה – and especially when the lost object was in the public domain, since the four cubits [surrounding] a person do not acquire for him in the public domain, the person who takes hold of it acquires title to it. But in an alley/recess (adjoining an open place to which merchants retire to transact business; alternatively: market stand under a colonnade), which is the path of an individual, or on the sides of the public domain where many are not crowding there, the four cubits of a person take possession for any found object and any ownerless object that is near him is considered like four cubits, and another person may not take seize it. And the Rabbis decreed this so people would not come to quarrel.
1.4.2
אחר צבי שבור – which is incapable of running and is well-guarded in the field (i.e., fenced in), if others will not take it, it is like a found object.
1.4.3
זכתה לו – and he stands at the side of his field, and as such is able to run after them and reaches them before they leave from his field.
1.5.1
הקטנים – all who are supported by/rely upon the father’s table, even if he is an adult, we call him a minor, and anything he finds belongs to his father for the sake of preventing ill-feeling. But a daughter, whether she is a minor or a maiden, her found object belongs to her father, since the Torah makes assignment of all gains/profits of her maidenhood belong to her father (see Numbers 30:17 – בנעוריה בית אביה /”while in her father’s household by reason of her youth”).
1.5.2
עבדו ושפחתו הכנענים – for their bodies are owned by him, as it is written (Leviticus 25:46): “You shall keep them as a possession [for your children after you, for them to inherit as property for all time. Such you may treat as slaves].”
1.5.3
מציאת אשתו – The Rabbis ordained this for the sake of preventing ill-feeling.
1.6.1
אחריות נכסים – landed security (i.e., that the debtor’s landed property is pledged to the creditor) that he can collect from them.
1.6.2
לא יחזיר – for we are suspicious of collection and conspiracy to fraud and divide the profits. Lest it was a collected/paid off document and it fell from the borrower, and when he admits: “I did not pay,” there is a council of deception between them to seize the sold mortgaged property which cannot be resorted to (in the event of non-payment) and it will be divided between them.
1.6.3
בין כך ובין כך לא יחזיר – a document which cannot be resorted to (i.e., movable property) is mortgaged, and can be collected from, and surety (i.e., property which may be resorted to in the event of non-payment) is the error made by the scribe; and we are suspicious of collection and conspiracy to fraud, and the Halakha is according to the Sages. And specifically, with a document where property may be resorted to in the event of non-payment is not mentioned in it, the Sages said that it is an error made by the scribe, and we collect from mortgaged property as if the surety was written in it (i.e., the document). But if it was spelled out in the document that he (i.e., the borrower) did not want to accept upon himself surety [for non-payment], the Sages admit that he may return it, for now there is no fear for a conspiracy to fraud.
1.7.1
דייתיקי – the verbal will of someone on his death-bed, that this is what should occur and happen.
1.7.2
ושוברים – [receipts] that the creditor makes for the borrower when his loan document has been repaid.
1.8.1
אגרות שום – that the Jewish court estimated the [value of the] property of the borrower to the creditor in his loan document
1.8.2
ואגרות מזון – that he accepted upon himself to feed the daughter of his wife. Another explanation: that they would sell from the landed property of the husband to support the wife and the daughters.
1.8.3
ומיאונין – that they would write in the document: “In our presence, so-and-so has refused this particular gentleman as her husband.” And this is regarding when a minor whose mother and/or brothers married her off, she does not require a Jewish bill of divorce.
1.8.4
שטרי בירורין – this one chooses one [judge] and the other party chooses one [judge] who will adjudicate for them.
1.8.5
מצא – [he found] documents.
1.8.6
בחפיסה – a small leather bag
1.8.7
ודלוסקמא – a leather utensil/box that the elderly hide their utensils so that they don’t have to search after them.
1.8.8
ותכריך של שטרות – three documents or more which are wrapped up one with the other.
1.8.9
ואגודה – that are lying one on top of the other, the length of this one on the length of that one.
1.8.10
הרי זה יחזיר – since it is something that has a sign; for the utensil is sign when the owners say, “in this particular utensil you found them.”
1.8.11
אחד הלוה משלשה – if there are three [loan] documents of one borrower who borrowed from three [different] people, the finder [of these lost documents] should be returned to the borrower, since they had surely fallen from his hand, for if they had fallen from their hands (i.e., the three lenders), who gathered them to one place? And specifically when the documents were authenticated by the Jewish court. But if they were not authenticated, we suspect that perhaps, in order to authenticate them, the three lenders brought them to the scribe of the judges and they fell from the hand of the scribe. And we should not suspect lest after they had been authenticated, they fell from the hand of the scribe, for a person does not delay their confirmation in the hand of the scribe. And if they (i.e., the loan documents) are from three [different] borrowers, who borrowed from one individual, the finder should return them to the lender for the matter is known that they fell from him. And if all three of them were in the writing of one scribe, we suspect lest they fell from the hand of the scribe and they were not [ever] loaned. And therefore, we do not return them.
1.8.12
מצא שטר בין שטרותיו ואינו יודע מה טיבו – with him – if the borrower deposited it with him or the lender, or lest it was partially paid-off, and they delivered it to him to be the intermediary between them (i.e., the lender and the borrower).
1.8.13
יהא מונח – in his hand, and he should not return it to either this one or the other one.
1.8.14
ואם יש עמהן סמפון – [codicil]. The one who finds it amongst his documents a receipt that was written on one of his documents.
1.8.15
יעשה מה שבסמפון – And the [loan] document was under the presumption of having been paid-off, and even though it would have been appropriate for this receipt to have been placed in the hand of the borrower and not in the hand of the lender/creditor, we say that the borrower trusted the lender and said: “tomorrow give it [the receipt] to me,” and he forgot. And this is the case of when a lender found this document upon which was written the receipt, between his torn documents even though it was not torn.
2.1.1
אלו מציאות, מצא פירות מפוזרים – something unknown/undefined, the owners despaired of recovery and they are ownerless.
2.1.2
מעות מפוזרות – since they lack a recognized sign [of ownership], they have despaired of recovery and they are ownerless, and this is the same reason for all of them.
2.1.3
כריכות – small quantities of sheaves
2.1.4
ברה"ר – since everyone threshes/tramples on top of them, and even if they had a mark of identification, it is lost.
2.1.5
של נחתום – there is no mark of identification, and all of them are alike, but those of the owner have a mark of identification.
2.1.6
הבאות ממדינתן – to exclude which come from the house of the artisan, as it is taught at the end [of the Mishnah].
2.1.7
ולשונות של ארגמן – wool that is colored purple and it is stretched like a strap
2.1.8
מצא עיגול – of figs [cake of pressed-figs]
2.1.9
אנפוריא – new utensils that are not satisfying to the eye, and the owners of them lack identification of an object from a general impression of its form (without particular markings), for sometimes, they return a lost object with lack of identification of the object from a general impression of its form, such as to Rabbinical students that do not modify their words. And these utensils which are known that their owners lack an identification of an object from a general impression of its form, one is not obligated to publicize [it’s being lost]. And the Halakha is according to Rabbi Shimon ben Eleazar. And when [does this apply]? At the time when they find them one by one, but if he found them two by two, he is obligated to publicize, for their number is an identifying mark. And a person who finds a an object in a camp and a large highway in the city where most of its people are heathens, even a thing that has an identifying mark, he is not required to publicize. But in a city where there are a majority of Israelites, he is required to announce [it].
2.2.1
בכלי – and a utensil has an identifying mark
2.2.2
כמות שהוא – empty
2.2.3
צבורי פירות – their identifying mark is their number or place
2.2.4
שלשה מטבעות זה על גב זה – or more, and the one who announces [the finding of the lost coins] announces: “I have found coins.” And this one comes and says, such-and-such they were, and they placed this one on top of that one.
2.3.1
אחר הגפה – the closing of a wall of wood or of reeds
2.3.2
גדר – of stones
2.3.3
גוזלות מקושרין – with their wings, and this is how everyone ties them up, and a tie like this is not an identifying marker.
2.3.4
לא יגע בהן – for we say that these people cause them to be hidden for if he took them, there would be no [identifying] sign among them for their masters; therefore, they leave them until their owners come and take them.
2.3.5
מכוסה לא יגע בו – for this is not a lost object that a person would be careful/warned about it (see Deuteronomy 22:3): “…[and so too shall you do with anything that your fellow loses and you find:] you shall not remain indifferent,” for it is guarded.
2.3.6
מצא בגל ובכותל ישן הרי אלו שלו – because he is able to say to the owner of the heap of stones and to the owner of the wall – that these were of the Amorites transmitted [them] to our fathers, and only that there would be in it rust/mold that it would be known that for a long time it was hidden there.
2.3.7
מחציו ולחוץ – in one of the cavities in the wall that are close the public domain, and if he found it from the half of its thickness towards the outside, it is his, for we say that one of the people in the public domain placed it there and forgot [about it], and the rust/mold that is upon it is proof that for a long time it was there and certainly the owners despaired of [retrieving] it. And this law is specifically concerning a golden strap or a piece of silver or something akin to this. But if it was in a utensil and inside of it was money even though the utensil is outside, behold it is his. But if the utensil was inside, it belongs to the owner of the house.
2.3.8
אפילו בתוך הבית הרי אלו שלו – and he did not know whose they are and the owners despaired [of getting it back].
2.4.1
מצא בחנות הרי אלו שלו – we are speaking of a thing that has no identifying mark. Since that which fell from him, he despairs [of recovering] since everyone goes into there.
2.4.2
בין תיבה – that the storekeeper sits in front of it, and always takes from it, and gives in front of him and sells, and the money that they give him, he gives into , and nothing falls other than from the hand of the storekeeper.
2.4.3
לפני שולחני הרי אלו שלו – for we say that it fell from those who come to exchange monies, for the table separates/forms a partition between the money-changer and the monies that were found; and if they [fell] from the money-changer, they would have to be found between him and the seat where the table is placed upon it.
2.4.4
הלוקח פירות מחבירו וכו' – as for example, when his fellow is a traveling vendor/merchant who takes this grain or these fruit/produce from many people and he does not know from whom these are. And because they lack an identifying mark, the [original] owners have despaired [of recovering them]. But if he who sold the produce/fruit picked them himself from his property, then certainly these monies are his, and he is obligated to return them.
2.4.5
ואם היו צרורים – the tie or their number is an identifying mark.
2.5.1
בכלל כל אלה – it included among "כל אבדת אחיך" / “anything that your fellow loses” (Deuteronomy 22:3).
2.5.2
ולמה יצאת – [It is connected to] "ותן תעשה לשמלתו"/”the same as his garment” (Deuteronomy 22:3).
2.5.3
מה שמלה מיוחדת – an undefined garment contains an identifying mark, and every garment has owners who claim it, that it was made by the hands of an individual and did not come from something ownerless.
2.5.4
אף על פי שיש לו תובעים – which excludes something that is despaired over. And it is despair, for he learned it as he said: “Woe is he, for his monetary loss.”
2.6.1
שכניו – neighbors of the place where the loss object is located, lest it is theirs.
2.6.2
כדי שילך – everyone לביתו בשלשה ימים – from when he would hear the announcement and know if he had lost nothing. And if he sees that he lost [it], he would go back for three days, and announce it for one day [saying]: “I lost [it] and these are its identifying marks. And the Halakha is according to Rabbi Yehuda. And when the Temple was destroyed, they [i.e., the Rabbis] established that they would announce it in the synagogues and House of Study. And when the violent men increased (alternatively: one of is in possession of property bought from one who obtained it by force or confiscation), who said that all losses belong to the king, the [Sages] established that he should announced it his neighbors and those who know him and that would be sufficient.
2.7.1
כל דבר שעושה ואוכל – if the lost object is something that you can feed it the reward of your work, like a bull or donkey.
2.7.2
יעשה ויאכל – and the finder cannot sell it, for every person is comfortable with his animal that he knows already and has taught appropriately, and he is not liable to deal with ever. But chicken and large animals, he must deal with for twelve months; calves and foals/young asses which graze, that is they don’t raise them as a dealer in fattened animals/who fatten animals for sale, and similarly, kids/young animals and lambs, which we care for three months. And calves of Pitos (???) we deal with them for thirty days. Geese and male chickens: the small ones we take with for thirty days and the large ones that eat a great deal, we take care of for three days; from here onwards, he takes them for himself and estimates their value, or sells them to others and leaves the money with himself.
2.7.3
לפיכך אם אבדו חייב באחריותן – since the Rabbis permitted him to make use of them, even though he does not use them, it is as one who uses them, and he is liable for their surety (i.e., mortgaged property/property that may be resorted to in the event of non-payment) [if lost]. And the Halakha is according to Rabbi Tarfon, in the value of the lost object that he sold. But the monies themselves of the lost object, such as those monies that he found in a purse/bag or three coins one on top of another, he cannot use at all.
2.8.1
אחת לשלשים יום – that they grow moldy when they remained unopened. And all of their books were made like a blank parchment.
2.8.2
גוללן – from their beginning to their end in order that air can enter them.
2.8.3
בתחלה – what he had never studied ever, because he would have to them remain open before him.
2.8.4
ולא יקרא אחר עמו – because this one pulls it towards him and the other pulls it towards him and it rips.
2.8.5
שוטחה לצרכה – so that the air can reach it and it would be eaten by moths
2.8.6
לצרכן – since their grow moldy in the the ground, and this is the manner of preserving them. And therefore, one uses them from time-to-time.
2.8.7
אבל לא לשוחקן – but not to use them for a long time until they become worn-out.
2.8.8
לא יגע בהן – gold does not become moldy in the ground and similarly glass/crystal, because it is so easy to be broken.
2.8.9
שאין דרכו ליטול – something that is disgraceful/shameful for him. And the Torah said (Deuteronomy 22:3): “you must not remain indifferent.” There are times when you may be indifferent, such as an old person as it is not befitting his honor.
2.9.1
איזו היא אבידה – that it is recognized that its owners do not know that it is there.
2.9.2
אין זו אבדה – and he is not liable to return it, as he knowing placed it there.
2.9.3
רצה בין הכרמים – where it damages its legs
2.9.4
השב תשיבם – The Torah widened the scope of the law of returning [things]
2.9.5
לא יאמר לו: תן לי סלע – for this one says to him: if you had done your work, you would have increased your labor; now, according to what you have taken pains with, take.
2.9.6
כפועל בטל – how much a person wants to take and lessen from his payment to be idle from this heavy labor which he is engaged with and [rather] do easier labor like this.
2.9.7
אם יש שם בית דין – if he does not want to be idle from his work, where his salary is greater, what should he do? If there are three men there, he can make a condition before them and say: See that I am paid such-and-such. And it is impossible to be idle to take a small salary. If you would say that I should take my full salary, I will deal with the return of this lost object.
2.9.8
שלו קודם – and he sets aside the lost object
2.10.1
מצאה ברפת – and even though it is not guarded, such as it not being locked.
2.10.2
ואם היתה בבית הקברות – and he is a Kohen, he shall not defile himself for it. For the return of a lost object is a positive commandment (Deuteronomy 22:1): “you must take it back to your fellow,” and the defilement of a Kohen is a positive commandment of “they shall be holy [to their God]” (Leviticus 21:6), and the negative commandment (Leviticus 21:1): “none shall defile himself for any [dead] person among his kin.” But a positive commandment does not override/supersede a negative commandment and a positive commandment.
2.10.3
אי שאמר לו אל תחזיר – And the lost object is in the place where it is commanded to be returned to, he should not listen to him, as it is written (Leviticus 19:2): “You shall each revere his mother and his father, and keep My sabbaths: [I the LORD am your God].” If your father tells you: “Violate the Sabbath day,” do not listen to him and similarly with all of the rest of the commandments.
2.10.4
הלך וישב לו – the owner of the donkey
2.10.5
מצוה מן התורה לפרוק – for free
2.10.6
אבל לא לטען – for free, but for payment
2.10.7
ר"ש אומר: אף לטעון – And the Halakha is not according to Rabbi Shimon.
2.10.8
רבי יוסי הגלילי אומר וכו' – And the Halakah is not according to Rabbi Yosi [HaGlili].
2.11.1
אבידתו קודמת – that the Biblical verse said (Deuteronomy 15:4): “There shall be no needy among you” – be careful that you should not yourself be needy.
2.11.2
של רבו קודמת – and he (i.e. your teacher) will be a distinguished scholar, that you learned most of your wisdom from him. And similarly, all of these mentions of his Rabbi in our Mishnah – where he precedes his father, is only when he is the Rabbi from whom he has learned most of his wisdom from.
3.1.1
המפקיד. ולא רצה לישבע – the oath of the bailees, for he was able to make himself exempt if he took an oath that he did was not negligent with it and did not make illegitimate use of it.
3.1.2
למי שהפקדון שלו – for since he paid, he has acquired all of its indemnities. And even if he did not pay but rather since he said in the Jewish court that he would pay, he has acquired all of the indemnities. There is no difference made between double indemnity or four/five times the indemnity.
3.2.1
השוכר פרה מחבירו – and the renter/leasee stood and lent it (i.e., the cow) to another with the permission of the lender. But if the leaser had not given permission, we establish that a bailee who transferred [an object] to another bailee is liable.
3.2.2
ישבע השוכר – to the leaser
3.2.3
שמתה כדרכה – and is exempt [from payment], for the renter is exempt from unavoidable accidents.

Bartenura on Mishnah, trans. by Rabbi Robert Alpert, 2020. Via Sefaria (sefaria.org), Sefaria-Export. Version source: http://sefaria.org/ Licence: CC-BY. Source.