Say you find a cheap black umbrella on a subway. It’s likely the owner has abandoned all hope of recovering it, as it is not worth the effort to find it and even if it were, there’s no marking that could identify the owner. Such an umbrella thus becomes ownerless and can be kept if it’s found.
The rabbinic term for an owner who has lost hope of recovering their lost object is yeush, or literally “despair.” But when exactly does the moment of despair begin? Is it when the object is lost, since we presume the owner will relinquish ownership as soon as they notice they have lost their umbrella? This is Rava’s opinion. But Abaye says you must wait until the owner actually realizes the object is lost and mentally lets it go.
The Gemara weighs 12 texts that might settle the debate. Here’s one example from today’s daf:
Come and hear: If a river swept away one’s beams, one’s wood, or one’s stones and placed them into the field of another, these belong to (the owner of the field) due to the fact that the (original) owner despaired.
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An overflowing river washes away someone’s building materials and deposits them in your field. You can keep the materials because the owner has despaired, says the beraita. Like many of the proofs, this one seems to support Rava. But the Gemara complicates this proof, noting that it explicitly states “because the owner despaired,” indicating that it refers to a case when you knowthe original owner gave up hope of recovery — not a case where you presume they will despair later. In the absence of an indication that the owner has already relinquished ownership, says the Gemara, maybe you can’t presume despair.
So after interrogating the source, it no longer appears to be a proof for Rava. In fact, this is the pattern. Almost all of the proofs initially seem to support Rava and allow one to keep a found object based on circumstantial evidence of the owner’s eventual despair, but the Gemara keeps reinterpreting the cases so they are inconclusive or support Abye. We are starting to sense where this very long discussion is taking us.
After 11 inconclusive attempts to settle the debate, the Gemara brings a midrashic source which is taken to break the tie:
The refutation of Rava is a refutation.
This clear endorsement of Abaye is interesting because we have a general rule that in debates between Abaye and Rava, we always rule like Rava. That’s all the more remarkable because, as we saw, the prooftexts mostly supported Rava before the Gemara complicated them. It seems the Gemara is worried about giving a finder too much leeway in presuming despair prematurely, and so it unconventionally decides to favor Abaye in this case.
Despite the explicit dismissal of Rava, this extended discussion concludes with a story that softens the blow.
Rav Aha, son of Rava, said to Rav Ashi: And now that Rava was conclusively refuted, when dates (are blown off a tree) by the wind, how do we eat them? Rav Ashi said to him: Since there are repugnant creatures and creeping animals that eat (dates after they fall), the owner despairs of their recovery from the outset.
If we rule like Abaye and require proof of an owner’s despair before taking a lost object, we ought not to eat fallen fruit found under a tree. But the question of Rav Aha (who is none other than the son of Rava) is not based on logic or a midrashic tradition, but on common practice. We all eat fallen dates based on the presumption that a few small dates that fall off the tree will be dismissed by the owner as no longer his, if and when he realizes they have fallen.
Rav Ashi reassures Rava’s son that the practice is OK because the owner’s knowledge that bugs will eat any fallen fruit proves that the owner has already accepted the loss. This conclusion doesn’t fully support Abaye against Rava, but perhaps points to a third way. There are some cases where a loss is so utterly inevitable that you can presume to know a person’s thoughts, and there some cases where an owner may hope to recover their lost object and only despairs later. Falling fruit is an example of the former. It is a case of automatic despair, for the owner accepts that you’re always going to lose a few dates to the wind and bugs.
Read all of Bava Metzia 22 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 21st, 2024. If you are interested in receiving the newsletter, sign up here.
