Imagine you were asked by your neighbors to store some apples they brought home from a day at the orchard. After a day or two, you notice a foul smell. Some of the apples are beginning to rot. You try to reach your neighbors, but they are out of cell phone range. What do you do?
A mishnah on today’s daf says this:
If one deposits produce with another, even if it is lost (i.e. spoiled or infested), the caretaker may not touch it.
The mishnah forbids you from touching the apples. Even if they are rotting, you must let them rot. At first glance, this seems odd. Why can’t you step in to save them? Isn’t that your role as their guardian?
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The Gemara offers several possible explanations:
Rav Kahana says: A person prefers a kav of his own to nine kav of another.
Rav Kahana invokes the endowment effect — namely, that people tend to value things more highly that they already have. How does that work here? Let’s say that your neighbor left you ten pounds of apples and one pound has rotted. You could claim the remaining nine pounds of apples for your own use and replace them with nine new pounds of apples of your own. Or you can choose not to intervene and by the time your neighbors return, another eight pounds have rotted — nine pounds in total lost. Even so, Rav Kahana holds that people would rather have one pound of apples they picked themselves than nine pounds of replacement apples. So you should leave the apples to deteriorate.
If this explanation isn’t persuasive, Rav Nahman has another one:
Rav Nahman bar Yitzhak says: We are concerned that perhaps the one who deposited it rendered it terumah and tithe in another place.
It’s possible the apples were designated to be given to the priesthood and are therefore forbidden for others to eat. It’s better to let them rot than to risk misappropriating sanctified produce.
If you’re still hoping to salvage the apples, you’re in luck, as the mishnah includes an alternative position that gives you the permission to respond actively:
Rabban Shimon ben Gamliel says: The caretaker sells it before the court, as he is like one returning a lost item to the owner.
Rabban Shimon ben Gamliel allows you to save the produce, but only under supervision of the court. And not only can you save it, but you have to, as it’s just like returning a lost item to its owners. A beraita quoted on the daf adds that you should sell the apples to a neutral third party (to avoid the appearance of impropriety) and give the proceeds of the sale to your neighbors when they return.
All of this presumes that the produce is decomposing at a normal rate. According to Rabba bar bar Hana, everyone agrees that if the rate of deterioration is higher than normal, the guardian should sell it before the court. Owners expect that produce is going to decompose, but if it’s rotting at an unusual rate, it’s likely they would be happy for someone to intervene to preserve its value. And this is in fact the law: According to Maimonides, in instances of normal deterioration, we don’t act. And in instances of rapid deterioration, we do. And just in case the produce has in fact been designated as terumah, it should be sold to priests.
Before we sign off, a quick shout out to Rav Kahana for his insight into behavioral economics. The notion he introduced is one of a number of concepts brought to our attention by 2017 Nobel Prize winning economist Richard Thaler. I’m pretty sure Dr. Thaler arrived at his conclusions as the result of research and contemplation rather than through the study of Daf Yomi, but you never know.
Read all of Bava Metzia 38 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 6th, 2024. If you are interested in receiving the newsletter, sign up here.
