Traité Bava Metzia

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara answers: The practical difference is with regard to returning the bill of divorce of a woman that was lost by an agent before its delivery, on the basis of distinguishing marks. If you say that the identification of an item on the basis of distinguishing marks is by Torah law, we return the document and allow the agent to transmit it to the woman. But if you say that it is by rabbinic law, we do not return the document, because when the Sages institute an ordinance, it is only with regard to monetary matters they have the authority to declare property ownerless; but with regard to ritual matters, the Sages do not institute an ordinance. They lack the authority to abrogate the prohibitions by Torah law that are associated with a woman’s marital status.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara suggests: Come and hear proof from the mishna: The garment was also included in the generalization that one must return all of these items. And why did it emerge from the generalization that is should be specified? To draw an analogy to it and to say to you: What is notable about a garment? It is notable in that there are distinguishing marks concerning it and it has claimants asserting ownership, and its finder is obligated to proclaim his find. So too with regard to any item concerning which there are distinguishing marks and it has claimants asserting ownership, its finder is obligated to proclaim his find. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects the proof: Perhaps it was necessary for the tanna to mention only the criterion of claimants, and the tanna cited the criterion of distinguishing marks for no reason, as by Torah law distinguishing marks are not a relevant factor.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara suggests: Come and hear proof from the aforementioned statement: The obligation to return a donkey to its owner on the basis of the distinguishing marks of the saddle is derived based on the mention of the word “donkey” in the verse from Deuteronomy. Clearly, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: Emend the baraita and say: There is an obligation to return the donkey only on the basis of witnesses who testify with regard to the identity of the owner based on the fact that the saddle belongs to him, and not on the basis of distinguishing marks.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara suggests: Come and hear proof from a mishna (28b): “And if your brother be not near you, and you know him not, then you shall bring it into your house, and it shall be with you until your brother claims [derosh] it, and you shall return it to him” (Deuteronomy 22:2). Would it enter your mind that he would give the lost item to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb derosh is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. Scrutinize him [darshehu] to determine whether the claimant is a swindler or whether he is not a swindler. Only then may you return the lost item to him.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara states its suggested proof: What, is it not that the one who claims the lost item proves that he is not a swindler on the basis of distinguishing marks that he provides? Apparently, the identification of an item on the basis of distinguishing marks is by Torah law. The Gemara rejects this proof: No, the determination of whether he is a swindler is on the basis of scrutinizing his witnesses.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara suggests: Come and hear proof from a mishna (Yevamot 120a): One testifies that a man died, thereby permitting his wife to remarry, only if he can testify about seeing the countenance [partzuf ] of the face with the nose, as this allows one to identify the individual with certainty. Although there are distinguishing marks on his body and on his garments, which appear to indicate his identity, they cannot be used to identify the person.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara states its suggested proof: Conclude from it that the identification of an item on the basis of distinguishing marks is not by Torah law. The Sages say in rejecting that proof: The distinguishing marks on his body mentioned in the mishna are non-specific distinguishing marks, e.g., that he was tall or short, and that is the reason that the distinguishing marks are ineffective in determining his identity. The distinguishing marks on his garments mentioned in the mishna are ineffective in determining his identity, as we are concerned about the possibility of a loan, e.g., perhaps the husband loaned his clothes to the deceased.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara asks: If we are concerned about the possibility of a loan, how do we return a donkey to its owner on the basis of the distinguishing marks of the saddle; perhaps it was borrowed? The Sages say in response: People do not typically borrow a saddle because saddles that are not custom fit wound the donkey.

Traduction française en préparation — version anglaise (Steinsaltz) : If you wish, say instead: The distinguishing marks on his garments mentioned in the mishna are non-specific distinguishing marks, e.g., where the witness said that they were white or red, and that is the reason that the distinguishing marks are ineffective in determining his identity.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara questions the previous answer with regard to the concern about the possibility of a loan. But there is that which is taught in a baraita: If the agent found the bill of divorce that he lost bound to his pouch, or his purse, or his signet ring, or if he found it among his garments, even if he found it a long time after he lost it, the distinguishing marks on those items are sufficient in order to identify the bill of divorce as the one that he lost, and it is valid. And if it enters your mind that we are concerned about the possibility of a loan, when he found the bill of divorce bound to his pouch, why is it valid? Let us be concerned about the possibility of a loan and that perhaps the pouch and the bill of divorce belong to someone else.

Traduction française en préparation — version anglaise (Steinsaltz) : The Sages say in response: There is no concern in this case, as people do not loan a pouch, a purse, or a signet ring to another person. One does not loan his pouch and his purse to others due to the fact that it portends the loss of his good fortune. And one does not loan his signet ring to others due to the fact that it could be used to forge documents.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara suggests: Let us say that the dilemma whether the identification of an item on the basis of distinguishing marks is by Torah law or by rabbinic law is the subject of a dispute between tanna’im, as it is taught in a baraita: One does not testify on the basis of a mole on the body of the deceased to determine the identity of a man who died and permit his wife to remarry. And Elazar ben Mahavai says: One testifies to identify the corpse on the basis of a mole. What, is it not with regard to this matter that they disagree; as the first tanna holds that identification of an item on the basis of distinguishing marks is by rabbinic law and therefore, testimony concerning those marks cannot dissolve a marriage by Torah law; and Elazar ben Mahavai holds that identification of an item on the basis of distinguishing marks is by Torah law.