INSIGHTS TO THE DAF - BAVA METZIA 28

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1) ONE WITNESS ON A LOST OBJECT
QUESTION: The Gemara discusses a case in which two people claim one lost object from the finder. One gives a Siman, and the other gives a Siman and brings a witness who supports his claim. The Gemara rules that the object should be put aside until Eliyahu comes.

The SHEV SHEMAITSA (6:3) asks that this Gemara seems to contradict the words of the RAN in Chulin (96a). The Ran writes that the Torah accepts the testimony of a single witness with regard to lost objects. In an ordinary case of monetary matters the testimony of a single witness cannot decide the case; it only obligates the other party to swear against his testimony. This limited power of a single witness applies only when the witness testifies to take money away from someone. When his testimony does not involve taking money away from someone -- such as the case of a lost object, where the finder admits that the object is not his -- a single witness' testimony is strong enough to decide the case.

The Gemara here, however, implies that a single witness' testimony is not strong enough to decide the case of a lost object. How does the Ran reconcile the Gemara with his position?

ANSWERS:
(a) The DIVREI EMES (Kuntrus 6) explains that the Ran does not rule that a single witness can decide a case whenever no other claimant is holding the money. In the case of a lost object, the Ran agrees that a single witness does not decide the case, because the other person has a Siman which normally would entitle him to take possession of the lost object.

(b) The PRI MEGADIM (YD 111, Kelalei Simanim) writes that in this case, the testimony of the single witness is directly contradicted by the Simanim. In fact, it is possible that Simanim are stronger than the testimony of a single witness, to such an extent that in a case in which one person brings Simanim and the other brings only a single witness, the object should be given to the person with Simanim.

(c) The PRI YITZCHAK (2:56) writes that the reason why a single witness is believed in the case of a lost object is that as long as the finder realizes that the person who claims the lost object is not dishonest (a "Ramai") and Beis Din has no reason to suspect that the witness is dishonest, the claimant should receive the object. However, in this case there is another claimant who also has proof (Simanim) that the object is his. In such a case, both parties are now suspected of being dishonest. This is why the object must be left aside until Eliyahu comes. (Y. Montrose)

28b----------------------------------------28b

2) A DISHONEST CLAIMANT WITH A "SIMAN MUVHAK"
OPINIONS: The Mishnah teaches that when a person identifies the type of object that he lost but not the Simanim, the finder may not give it to him. If the claimant is known to be dishonest, the finder may not give him the object even if the claimant identifies the object with Simanim.

There are three different types of Simanim, as outlined clearly by the S'MA (CM 267:7). The first type is a Siman which is "Muvhak l'Gamri" -- "totally clear" -- which is a very specific piece of information about the object (such as that there is a hole on top of one of the words in a lost document). Identification of a lost object with such a Siman is tantamount to bringing witnesses to identify the object.

The second type is a Siman which is "Muvhak" -- it is clear, but not as clear as a "Siman Muvhak." This type of Siman includes the object's weight, length, and other similar information. This is an ordinary Siman which a person can present to retrieve his lost object.

The third type is a Siman which does not clearly identify the object, such as the name or color of the lost object (as mentioned in the Mishnah). Such a Siman is not valid.

When the Mishnah says that one may not return a lost object to a Ramai even if he has Simanim, does it mean even if he has a Siman Muvhak l'Gamri, or does it refer to an ordinary Siman Muvhak?

(a) The RAMBAM (Hilchos Aveidah 13:3) writes that even when a Ramai gives "Simanim Muvhakim" one should not return the object to him unless he brings witnesses. The Rambam apparently understands that no Siman will suffice for a Ramai. However, the RA'AVAD comments on the Rambam with three words: "Simanim Muvhakim l'Gamri." What is the Ra'avad's intention? Does he argue or agree with the Rambam?

1. The MAGID MISHNEH explains that the Ra'avad's intention is to explain the Rambam. The Ra'avad says that the Rambam means that a Ramai never retrieves his lost object through Simanim.

2. The BACH (CM 267) understands that the Ra'avad argues with the Rambam. The Ra'avad understands that the Rambam rules that even a Siman Muvhak l'Gamri is invalid when a Ramai claims the object. The Ra'avad himself disagrees and maintains that when a Ramai gives a Siman Muvhak l'Gamri the object should be returned to him. This is also how the BE'ER HA'GOLAH understands the Ra'avad.

(b) The ROSH clearly learns that if a Ramai gives a Siman Muvhak l'Gamri, the object should be returned to him. (See DERISHAH and SHACH who explain the opinion of the Rosh at length.) (Y. Montrose)

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