QUESTION: The Mishnah (114b) discusses the case of a person who recognizes his stolen books or utensils in the possession of someone else, and there had been a rumor in town that they indeed had been stolen. The Mishnah says that the buyer of the books or utensils may take an oath to the owner how much he paid when he bought them from the thief, and he receives this sum back from the owner when he gives him back the objects. RASHI (DH Nishba) adds that this law applies when the owner did not have Ye'ush. TOSFOS (DH ha'Makir) points out that if the owner had Ye'ush, the buyer would not be required to return the objects even if the owner offered to pay him for them. This is because in this case there was both Ye'ush and Shinuy Reshus (the object changed from the thief's possession to the buyer's possession).

The Gemara (115a) quotes Rav in the name of Rebbi Chiya who says that when a thief is caught after he sold the stolen object, the owner's claim is against the thief, not against the buyer. The buyer has no obligation to deal with the owner. Rashi (DH ha'Din) explains that if the owner wants to retrieve his object from the buyer, he must pay him. Even though the identity of the thief is now known, the buyer is not required to return the utensils for free to the owner and then collect his money back from the thief. Rather, the owner must find the thief and recover his money from him.

The Gemara continues and says that according to Rebbi Yochanan in the name of Rebbi Yanai, the owner's claim is against the buyer. Rashi explains that the owner can approach the buyer and demand the return of his object without pay. It is the buyer who must find the thief and retrieve his money from him.

Rav Yosef says that there is no dispute between Rav and Rebbi Yochanan. Rebbi Yochanan is discussing a case in which the buyer purchased the object from the thief before Ye'ush, and thus the owner may collect from the buyer. Rav is discussing a case in which the buyer purchased it after Ye'ush, and thus the owner must collect from the thief. Both Rav and Rebbi Yochanan agree with the law of Rav Chisda (111b) that when one person stole something and a second person ate the stolen object before the owner had Ye'ush, the owner can collect his property from either person, the thief or the second person. (See TOSFOS to 111a, DH Gazal.)

Rashi's explanation of Rav's opinion (DH ha'Din), that if the owner wants to retrieve his object from the buyer he must pay him, is difficult to understand. Both Rashi and Tosfos on the Mishnah (114b) imply that had there been Ye'ush (which is indeed the case which Rav discusses), the buyer would not have to return the object even if the owner is willing to pay him for it. Why, then, does Rashi imply that the owner is entitled to buy the object back from the buyer if he is prepared to pay for it?

(a) The MAHARSHA answers that Rashi's statement that the owner may buy back the object from the buyer according to Rav does not apply according to Rav Yosef's opinion. The Maharsha explains that Rashi's statement applies only according to Abaye's opinion. Abaye maintains that Rav and Rebbi Yochanan indeed disagree with each other, and that both refer to a case in which the buyer purchased the object from the thief before Ye'ush, and the dispute between Rav and Rebbi Yochanan concerns the law of Rav Chisda. Rebbi Yochanan agrees with the law Rav Chisda, while Rav does not agree with it. According to Rav, before Ye'ush the owner can collect only from the thief. Consequently, if the owner wants to retrieve his object from the buyer he must pay him. However, since there was no Ye'ush, the buyer did not actually acquire the object with Ye'ush and Shinuy Reshus. Therefore, the buyer is obligated to return the object to the original owner upon receiving payment.

(b) The PNEI YEHOSHUA answers that Rashi's statement does apply according to Rav Yosef. Rashi maintains that the Rabanan instituted a decree for the benefit of the owner that if he pays, the buyer is obligated to return the object to him (even though, according to the letter of the law, the buyer actually acquired it through Ye'ush and Shinuy Reshus).

When Rashi (114b) states that the buyer must return the object before Ye'ush, which implies that after Ye'ush he may keep them, this applies only according to Rav Papa and the other Amora'im who disagree with Rav Yosef. (D. BLOOM)

QUESTION: The Mishnah (115a) states that if one's barrel of honey cracked and a different person, who was carrying a barrel of wine, poured out his wine to save the honey (honey is worth more than wine) by collecting it in his now empty barrel, the owner of the wine receives "only his Sachar."

RASHI (115b, DH Ein) explains that this means that he receives "Sechar Kli," the amount of money that it would have cost the owner of the honey to rent a barrel for his honey, and "Sechar Pe'ulah," the amount of money that it would have cost the owner of the homey to hire a worker to save his honey.

What is the difference between this Mishnah and the Mishnah in Bava Metzia (30b)? The Mishnah there states that when one takes off from his work to return a lost object, the owner of the object must compensate him like a hired laborer. The Gemara (31b) explains that this refers to the amount of money that he would be prepared to accept if one would offer to pay him to sit and take a rest instead of doing his normal work.

From the Gemara in Bava Metzia it is clear that the pay one receives for the time spent returning someone's lost object is fixed according to what he lost by doing so. That is, he may not claim his full wages for that time, but he may demand at least the rate that he would have agreed to receive had he been offered not to work for that amount of time.

However, the Mishnah here teaches that the amount is determined in a different manner, by assessing how much a worker who was available on hand with an empty barrel would be paid for the effort of collecting the honey. This amount has no connection with how much the person lost by saving the honey. According to the Gemara in Bava Metzia, the owner must compensate the finder in accordance with how much money he lost. Therefore, in this case, too, the owner of the honey should compensate the owner of the wine with the value of the wine that he lost by saving the honey (which is more than the wages of a worker with an empty barrel).

(a) The NIMUKEI YOSEF (42a of the pages of the Rif) answers that the Mishnah here expresses the basic Halachic ruling according to the letter of the law. The owner of the honey is not required to pay the owner of the wine for his loss, because his loss is related only indirectly to the service he performed for the owner of the honey. In contrast, in the case of the Mishnah in Bava Metzia, the Rabanan instituted a special decree that a person who returns a lost object should receive more than the wages of a salvage worker, because happens frequently that a person encounters the Mitzvah of returning a lost object while he is in the middle of his work. The Rabanan did not want him to lose so much by doing a Mitzvah, and therefore they gave him the wages that he would have received for taking a rest in the middle of his work.

Although in the case of the Mishnah here, the owner of the wine certainly is doing a good thing, this is a very unusual case, and the Rabanan did not apply their decrees in unusual cases. Moreover, the owner of the wine had the opportunity to stipulate with the owner of the honey that he would save the honey only on condition that he receive the value of his wine in return. (See the Mishnah in Bava Metzia 30b, which says that such a condition is valid.) Accordingly, the owner of the honey is obligated only to pay for the service he received, and not for the loss incurred by the owner of the wine.

(b) The ROSH in Bava Metzia (end of 2:28) writes that there indeed is no difference between the two cases. The Rabanan decreed that the finder receive the difference in wages (or more, see Rosh there at length) only when he made such a condition with Beis Din or with the owner of the object, or if nobody was present with whom to make a condition when he saved the object. However, if the owner was present and the finder made no condition with him but quietly proceeded to save the object, even though he took off from his work he receives the same payment that the owner of the wine barrel receives -- the wages of a salvage worker.

The Rosh applies this ruling to a different case. The Mishnah here (115b) states that when two donkeys were swept away by a river and the owner of one donkey saves his friend's donkey while he lets his own donkey drown, he may demand that his friend pay for his donkey, if his friend was not present. It follows that where the owner of the honey was not present (and thus it was impossible to make a condition with him), the owner of the honey must pay for the wine that was spilled. (D. BLOOM, Y. MONTROSE)