BM 27b: Still more on the source of the ruling that items are returned on the basis of identifying marks, along such concerns as identifying a corpse, delivering a get, and what to do when one finds IOUs.
[We start on the last line of bm27a, with a question based on the mishna's ruling that a found item with identifying marks must be announced.]
They asked: [The obligation to return items with] identifying marks -- is that biblical or rabbinic?
What is the (practical) difference? With respect to returning a get (bill of divorce) based on identifying marks. [The gemara is discussing a case in which a man appointed an agent to deliver a get to his wife, and the get was lost; is the finder obligate d to return the get to the agent - in the absence of witnesses to its authenticity - on the basis of identifying marks alone?] If you say that the obligation to return the item is biblical, then one must return it. But if you say that it is rabbinic, rabb inic enactments apply only in civil law, but they did not make enactments with respect to prohibitions. [If the requirement to return the item is rabbinic, it would be based on the principle that the rabbis can declare an item ownerless; in general, rabbi nic enactments can establish or cancel ownership of property. But such rabbinic financial enactments would not have an impact on such prohibitions as adultery -- if the get was not properly delivered according to the requirements of biblical law, a rabbin ic enactment could not have any impact on that fact. If the woman is still married according to Torah law, any rabbinic enactment to the contrary would be ineffective.]
Come learn (from our mishna): "The garment was included in all of these, and why was it specifically mentioned? -- To draw the analogy to other kinds of items, and to tell you that, just as a garment is distinguished in that is has identifying marks and c laimants, and it must be announced, so is the case that any item with has identifying marks and claimants must be announced." [This suggests that the requirement to announce a lost item is biblical.]
[The gemara rejects that proof:] Perhaps the mishna needed (the biblical verse) for "claimants," and "identifying marks" are mentioned only incidentally (so that we still do not have proof that these are biblical).
Come learn (from BM 27a), that the term "donkey" implies that a saddle must be returned on the basis of identifying marks. [Again, this implies a biblical source.]
[The gemara rejects this proof too:] Perhaps [the verse refers to] witnesses (who recognize) the saddle [but that returning the saddle on the basis of identifying marks is still only rabbinic].
Come learn (from a b'raita referring to Deut 22:2): "And it [the lost item] should remain with you until your brother asks [d'rosh] you for it" Would it occur to you to give it to him before he asks for it? Instead (the verse means) investigate whether he is a deciever or not a deceiver. [The Hebrew word "d'rosh" can mean "ask" or "investigate."] Is that (investigation) not through identifying marks?
No (the verse does not imply identifying marks, but) through witnesses (that the object belongs to the claimant).
[Next, the gemara will try to prove that identifying marks are rabbinic, based on a mishna in Yevamot 120a, dealing with the question of how to identify a corpse (permitting the widow to remarry).]
Come learn: One may not testify (as to the identity of a corpse) except on the basis of the face with the nose, even if there are identifying marks on the body or his equipment. This implies that the acceptability of identifying marks is not biblical.
[We have translated as "equipment" the Hebrew "kelim", the plural of "kli". In mishnaic Hebrew, "kli" is a very broad term, that can mean an article of clothing, a utensil, a tool, or any other item of personal property.]
[The gemara rejects that proof:] Perhaps "the body" refers to whether it was tall or short [rather general properties -- but more precise identification would be biblically acceptable]. And "equipment" (is not acceptable) because we are concerned about bo rrowing (the identified items might have been borrowed, but other identifiers might still be biblically acceptable).
But if we are concerned about borrowing, why do we return a donkey on the basis of its saddle? [Perhaps that too is borrowed?] You can say that people do not usually borrow a saddle, since it would chafe the donkey [because, with use, a saddle gets molded to the donkey's individual shape]. Alternatively, a piece of equipment [here the reference is no doubt to an article of clothing] (is disqualified as an identifier to the extent that it is identified as being) white or red [again, too general to be real identifiers... but precise identifiers _would_ be biblically acceptable].
[The gemara made the point that saddles are not usually borrowed, which is why a saddle can be used to identify a donkey. This implies that, in other instances, we _would_ be concerned that an item was borrowed, and could not use that item as an identifie r. The gemara will now question that position.]
But we learned in a b'raita: (If an agent was told to deliver a get, lost the get, and) he found it tied with a money-bag, a purse, or a ring, or found it among his belongings, even after a long time, it (the get) is valid.
[The commentators differ as to the identity of _he_ who found the get: Rashi says that it is the agent himself who, having lost the get, finds it in his money bag, in his purse, or among his other belongings at home. The Tosafot consider the finder to be someone else, who returns the purse and the get to the agent on the basis of his identification of the purse, or to the husband - if he can identify the get. The quite stringent criteria for identification of a get are specified on B.M. 18b, and we will t ouch upon it ourselves in the next week or two.]
[Generally, a get lost for a long time is invalid. A valid get must be prepared specifically for the man and woman involved; even though the get has the name of the man and woman, we are concerned that the get might have been written for another couple wi th the same names. But the b'raita tells us that in the present case we need not be concerned that the get was written for someone else.]
But if we are concerned with the possibility of borrowing when he finds it tied in a money-bag, why is it valid? We should be concerned about borrowing (i.e., that the agent lent the money-bag, and 1. (according to Rashi) the get may have been lost by the borrower before he returned the purse to the agent, so the get found by the agent may not the same one; or 2. (according to Tosafot) the purse, with the get in it, was lost by the borrower, not by the agent.]
You can reply that people do not lend a money-bag, a purse, or a ring: A money-bag or purse (is not lent) because people are superstitious (and it is considered to be bad luck), and a ring because of counterfeiting (the ring in question is a signet ring). [Thus, although these items are not lent, we should still consider the possibility that other objects may have been ... and not use their presence as identifiers.]
[The gemara gets back to the question of whether identifying marks are biblical.]
Perhaps this is a dispute among tanna'im, for we learned in a b'raita: Witnesses may not testify (to the identity of a corpse) on the basis of a wart, and Elazar b. Mehavai says they can testify on the basis of a wart.
Isn't this precisely the argument? The tanna kama (the anonymous author of the b'raita) says identifying marks are rabbinic [and thus cannot be used to override the biblical prohibition of the woman remarrying witout conclusive proof that she is a widow], and Elazar b. Mehavai holds that identifying marks are biblical.
Rava said: Perhaps all agree that identifying marks are biblical, but here we are dealing with a case of a wart commonly found in people of the same age [Rashi: in people born under the same astrological influence]. One (the tanna kama) holds that warts a re common among peope of the same age (so they cannot be identifiers), and one (Elazar b. Mehavai) holds that warts are not common among people of the same age (so that the wart is a valid identifier).
Alternatively, everyone may agree that warts are not found among people of the same age, but here they are arguing about identifiers that change after death. One holds that identifiers change after death, and one holds that identifiers do not change after death.
Alternatively, everyone agrees that warts do not change after death, and that identifying marks are rabbinic, but here the argument is whether a wart is a unique identifying mark. One holds that it is a unique identifying mark (so that is can be used to p ermit a woman to remarry), and one holds that it is not a unique identifying mark. [The gemara here suggests that, even though returning lost objects on the basis of identifiers may not be biblical, some identifiers are so unique that they can unequivocal ly establish identity -- so strongly that they can be used to permit remarriage.]
Rava said: If you assume that (the obligation to return an item based on) identifying marks is not biblical, why do we return lost items on the basis of identifiers?
[The gemara answers:] One who finds a lost item is content to return it on the basis of identifying marks so that, when he too loses something, it will be returned to him of the basis of identifying marks.
Rav Safra said to Rava: But can a person do himself a favor with property that is not his? [What is the relevance of the _finder's_ satisfaction? Shouldn't the rabbinic concern be with the rights of the _owner_?]
Instead (Rava said): The owner is content (with the rabbinic enactment) to bring identifying marks and take the item. He knows that he does not have witnesses (to identify the item as his); he says to himself "Nobody else knows the unique identifying mark s -- I'll provide the identifiers, and retrieve the object. [Implicit in this argument is that the biblical requirement to return a lost item would only apply if there were witnesses; in the absence of witnesses, the owner is thus willing to have the item returned on the basis of identifying marks, knowing that he is likely to be the only one who knows them.]
[Next, the gemara objects to the assertion that the owner necessarily benefits from a policy of returning an item on the basis of identifying marks. The issue at hand is the return of loan documents -- IOUs. When a loan was made, a signed IOU was given to the lender; when the loan was repaid, the IOU was returned to the borrower. In general, an IOU was sufficient evidence to support a demand for payment.]
But we learned in a mishna (BM 20a): Rabban Shimon b. Gamliel said: (If a person found loan documents, or IOUs) of one person who borrowed from three lenders, he (the finder) should return them to the borrower. [Since the three IOUs all involved one borro wer, it is more likely that the loans were repaid (and the borrower lost the IOUs) than it is that the loans had not been repaid, and that the three loaners independently lost the three IOUs at the same place.] If (the three documents related to) three bo rrowers from one lender, the finder should return the IOUs to the lender [since the lender was probably the one who lost the unredeemed IOUs]. Is the borrower (in the less common case in which one of the borrowers had redeemed the IOU and then lost it) co ntent with a policy of returning lost items to the lender on the basis of identifying marks? [Obviously not -- so it is not always the case that the owner wants the items returned!]
(Rava) replied (to Rav Safra): There (in the case described by Rabban Shimon b. Gamliel), it is logical (that the finder should return the IOUs). Where one borrowed from three, the IOUs should be returned to the borrower, because the three IOUs were proba bly in the borrower's possession, and were not likely to have been in the lender's possession; it follows that the IOUs were (probably) dropped by the lender.
In the case of IOUs showing three people borrowing from one person, he should return them to the lender, because they were probably in the lender's possession, not the borrower's possession.
But we learned in a mishna (again, p. 20a): If one found a roll of documents or a bundle of documents, the finder should return it (to the lender - if he can identify them). Can we say that here too the borrower is content with (the rabbinic policy) of re turning a lost item on the basis of identifying marks? [Here the probabilistic logic of the case of Rabban Shimon b. Gamliel does not apply -- yet we still return the item. This appears to be compelling evidence against Rava's initial assumption that the requirement to return an item on the basis of identifying marks is rabbinic. Instead, Rava will go on to show that the source is indeed biblical, and not rabbinic.
[We are now at the fourth line of 28a.]