The Mishnah says that one who finds an animal in a refes is not obligated to engage with it. Whose property is this refes on, and how did the animal get in there?
If the refes is located on the animal owner's property, presumably he put it in there. If so, what is the hava amina that someone seeing it would have to deal with it, even under the most adverse conditions - like an unprotected refes outside the city limits that inspires the animal to stray? If he put it in there, he must be close by, and if he put it there under those conditions, it's an aveida m'daas. (Perhaps you might say this falls under the category of something that's vadai hinuach but not fully mishtameres, but that scenario seems to be a machlokes Rishonim whether or not you're supposed to engage with it, not an explicit Mishnah, and does that halachic scenario even apply when you find the item on the actual property of the owner himself?
Daniel Steinberg, Columbus
It seems to me that the crucial question is not who the Refes belongs to but rather is the animal going to go astray in the present circumstances? It is not our job to figure out how the animal got here. If the animal is in a very vulnerable position then we have a Mitzvah to save the owner's property. On a person's own land there are also areas which are not so secure. Unless we know for sure that the owner is nearby and aware of what is happening, we can say that possibly the animal escaped from the area where it was being protected, so it follows that if it is in a Refes outside the city which motivates it to stray, we have a Mitzvah to save it.
Kol Tuv,
Dovid Bloom
Thanks for clarifying this for me, R'Dovid.
There are a few points in this sugya I'm still very unclear about that I was hoping you could help me with.
According to Rashi's pshat in mishameres (locked), the diyukim of the Gemara are backwards. Rava should first prove that it's not mishmares completely, and then explain that the animal isn't a flight risk. Not being mat'eh the animal to leave isn't an independent diyuk. Meaning, if it's completely mishameres, it wouldn't matter if the refes is mateh animal to leave, it can't!
What is it about finding an animal in this type of semi-guarded refes, outside the techum, that makes it worse than finding it inside the techum? Is it because outside the techum, the animal is less safe, or is it because outside the techum, the owner potentially does not know where his animal is, or are these two factors interdependent? Meaning, when we say you are not chayiv, what is the reason you don't have to get involved? It's clear (at least partially) because the animal is deemed safe enough where it is. Does it automatically follow that if it's safe, the owner must know where it is, and if it's in an unsafe environment, the owner must not know where his animal is? In the last Mishnah, when we said something is either not aveidah and "aino chayiv bah" or it is an aveidah, and "chayiv bah", Tosfos (d.h. "Aizu'he Aveidah") explained this means the finder can assume the owner knows/does not know (respectively) the whereabouts of his animal. Does that explanation apply here as well? That when you're not chayiv, it means we can assume the owner knows his animal is in the somewhat guarded refes inside the techum, but when you are chayiv according to R'Yitzchak in the 1st loshon, i.e. when the animal is in a somewhat guarded refes outside the techum, it's because he potentially does not know where his animal is?
How is this case of refes worse than "roeh b'derech" of the previous Mishnah, where there are no qualifications of finding the animal specifically inside the techum, and we say it's not an aveidah? At least here it's somewhat enclosed; there it's not enclosed at all!
In the case of "roeh b'derech", we give a limit of 3 days and then we call it an aveidah. Why don't we apply the same parameters here, either wait 3 days inside the techum and then call it an aveidah, or wait 3 days outside the techum before calling it an aveidah.
The Mishnah says that when you find it in rshus harabim, you're chayiv. Why is this a chiddush? By this point in the perek we know, any time you find something with a siman that does not appear to be placed there intentionally, in a non-mishtameres type of environment, you'd be chayiv to announce
Similarly, in the 2nd loshon of R'Yitzchak - why would you not have to engage with an animal when you find it in a rshus harabim, just because it's inside the techum?
B'chavod,
Warm regards,
-Daniel Steinberg
Reb Daniel, Shalom u'Verachah!
1)
(a) I want to be Medayek from the Shitah Mekubetzes in the name of the Ritva that the crucial point is not which kind of Refes is mentioned first. This is because, according to the text of the Ritva, "Mishtameres" is mentioned before "Mateh," which is the opposite of Rashi's text. Nevertheless, the Ritva concludes that it appears from Rashi that he learned the same way that the Ritva himself learns. This suggests that the Ritva understood that since the way he learns "Mishtameres" and "Mateh" is similar to the way that Rashi learned it, it is not so important in which order they are mentioned.
(b) Having said that, I still can give a reason, according to our text, for why "Mateh" is mentioned first. This is because Rava wants to stress that one is exempt from returning the animal only because it is not "Mateh," but if it is "Mateh" then the animal will quickly run away so it is considered already as an Aveidah. We must know immediately that the Mishnah's Petur from returning the animal does not always apply.
2)
(a) I think we can learn the difference between inside the Techum and outside the Techum from what the Rosh (#26) writes (even though the Rosh does not mention "Techum" explicitly, because he rules according to the first version of Rebbi Yitzchak and, therefore, rules that in Reshus ha'Rabim one must always return it, even inside the Techum). The Rosh writes that even in Reshus ha'Rabim he is obligated only to return it if is clear that the animal is wandering around lost. The Rema (Shulchan Aruch, Choshen Mishpat 261:3) writes that it all depends on whether or not it is protected. According to the Rosh and the Rema, the crucial point is whether the animal is safe or not. Sometimes the owners may know where it is, but they may not be able to stop it from running away, and in such a case anyone who sees it must return it.
(b) However, in addition, if it is reasonable to assume that the owners do not know where it is, this is a sufficient reason to require the finder to return it. Even if it seems to the onlooker that the animal may not be so vulnerable, but if -- when thinking about it -- one comes to the conclusion that it is likely that the owners have lost track, this means one is required to return it. This is why Tosfos (30b, DH Eizuhi) writes that if one understands that the owner does not know that it is there, then it is considered an Aveidah. If one knows for sure that the owners do not know where it is, then one must tell them, even if it is in the safest place in the world. If they do not know where it is, then all the protection that is being given to it will not help since they do not know where to retrieve it from.
(c) However, the Mishnah and Gemara (end of 30b) are discussing more standard cases where we are not sure whether or not the owner knows where it is, so we try and estimate this by looking at how safe a position the animal seems to be in.
(d) I found, bs'd, in a Sefer called "Beis Sham'ash" (by Rav Shalom Mashash zt'l, the late Sefardi Chief Rabbi of Jerusalem), that the author writes that the Refes which is not Mateh and not Mishtameres is referring to a scenario where the owner knows it is there, but the reason why the Gemara had to tell us that one is not required to return it is that we might have thought that when the owner put it there, the Refes was in better condition, and then it became more delapidated. The Gemara concludes that since it now seems to be fairly well protected, one does not have to return it.
At any rate, this seems to fit with my argument that if the owners really do not know where their property is, one must inform them.
3) The Rosh (#26) cites the Ra'avad who states that the Gemara on 32a is referring to a scenario where the animal is in a "Seratya," an inter-city highway. There are lots of people on the highway and the animal is frightened and running away. There is also a danger that unworthy characters might steal the animal. In contrast, the "Ro'eh ba'Derech" of 30b is a public path, but not such a large number of people pass by.
4) It seems to me that the 3-day test is not applicable for the Refes. This is because the Refes may in fact be a very suitable "house" for the animal. As the Ritva writes, we notice that there is sufficient food inside the Refes to keep the animal going for the time being. On the contrary, if one sees 3 days later that there is still food there, this suggests that the owners are coming to look after their animal. At any rate, it is not similar to the Gemara at the end of 30b, because there the animal is in an exposed place, and we say that the owners cannot leave it there indefinitely. The Refes of 32a is different because the longer it stays there, the more this proves that it is a homely, protective place.
5) According to the Ra'avad (cited above in 3), we can understand why it is a Chidush that if you find it in Reshus ha'Rabim that you are Chayav, since the Ra'avad says that if you find it in a Shevil Shel Rabim you are exempt. This is a path which anyone may walk on, but it is not a main road, and people do not consider it to be such an exposed place. We learn that not every public place is necessarily highly exposed.
6) We learned above (24a) that in a place where the majority are Yisraelim, a person does not give up hope because he assumes the Yisrael will not take something that does not belong to him. Now, on 32a we learn that with regard to animals (which are more difficult to restrict), a person may be happy to let them be in a public place as long as it is not too far from home. Therefore, in the second Lashon of Rebbi Yitzchak, if it is inside the Techum one is Patur from returning it, even if it is in Reshus ha'Rabim.
Reb Daniel, I really must thank you very warmly and emphatically for the wonderful way you go into these Sugyos b'Iyun!
B'Hatzlachah Rabah,
Dovid Bloom
Thank you, R'Dovid, again for your well-researched and thoughtful responses to my questions!
They are truly a simcha to me to receive and peruse!
I understand your main point, that from the 2 Mishnayos and Gemaros on 30b and 32a, and the Rosh/Rema/Raavid in discussing the Rshus HaRabim case, the guiding principle is: HaKol Lifee HaInyan; a finder needs to assess the circumstances and be confident that the animal he sees is safe & protected where it is, and more importantly, he needs to be Mavchin that the owner most likely knows of his animal's whereabouts.
What remains unclear to me is the Chiluk between inside and outside the Techum by the Refes case (in the 1st Lashon of R'Yitzchak).
What is the Hanacha, that if the animal is in a semi-guarded Refes, outside the Techum, that now it must need attending to (or at least that the finder can no longer be confident that it's ok where it is and the owner is aware of its whereabouts)?
Is it the assumption that such a distance from "civilization" makes it difficult for the owner to maintain control over his animal, either from running away or being stolen? Or is it that outside the Techum, for some reason, it's less likely that the owner knows where his animal is?
Or is it either of the two, and the ruling of the Mishnah "Chayiv Bah" in the Refes case, outside the Techum, would still be subject to the finder's assessment that the situation indeed needs his attention, similar to what the Rosh/Rema write that even in the Rshus HaRabim case, there's only a Chiyuv when the animal appears to lost/unprotected.
(And then according to R'Yitzchak, the Mishnah would then be saying that inside the Techum, a semi-guarded Refes can always be assumed to not need attending to. But outside the Techum, one must judge case by case...?)
B'chavod,
Daniel
I want to try to explain this with the help of the Gemara in Beitzah (40a) which tells us that "Baisiyos" (domesticated or homely animals) go out in the daytime to pasture outside the Techum and come back into the Techum at night to sleep. This suggests that it is perfectly normal for an animal to be found anywhere inside the Techum, which is why, in the first Lashon of Rebbi Yitzchak, if one finds it inside the Techum one need not return it. In contrast, if one finds it in the Refes outside the Techum it is not so simple. If one knows for sure that at night this animal is going to come back into the Techum, then one need not act. However, it is not like the standard animal which pastures outside. This animal stays in the Refes, which leads us to suspect that he does not come home, and this suggests he is lost.
Kol Tuv,
Dovid Bloom
I hear the teretz, however, the Chiddush of the Mishnah is on the case of Refes, inside the Techum (according to R'Yitzchak's first Lashon).
R'Yitzchak explains that the Chiddush only applies to a Refes inside the Techum, but when you find it in a Refes outside the Techum, you would have to engage with the animal.
According to your teretz based on the Gemara in Beitzah, the case of inside the Techum is Pashut; that's the normal place for animals to be! The true Chiddush would be that you would have to engage with the animal in a Refes outside the Techum, because since it's in a Refes, it's possible that the animal might be lost and not return back to inside the Techum by nightfall. Why doesn't the Mishnah teach that Din, which seems more of a Chiddush, instead?
Additionally, if it's normal for an animal to be located anywhere inside the Techum, even in a Refes, why would it be so abnormal for it to be found in a Refes outside the Techum, that would lead one to believe the animal might be lost?
Warm regards,
-Daniel Steinberg
The Mishnah does in effect teach that one has to engage with the animal in a Refes outside the Techum. Since the Mishnah states that if one finds it in a Refes one is not obligated, and then the first Lashon of Rebbi Yitzchak says that the Mishnah refers only to a Refes inside the Techum, it follows that the Mishnah is saying that if one finds it in a Refes outside the Techum, one must engage with it.
B'Hatzalchah Rabah,
Dovid Bloom