Bava Metzia 26: Hidden Treasures; Despairing Lost Items

In daf 25 we learn three different Mishnayot.  The last begins in daf 25.  It teaches that when one finds something of value in a pile of rubble or rubble at the side of an old wall, they can keep what they find.  If the item is found in the inner half of the wall, then that item belongs to the home's owner or its most recent tenant.  This is because one must despair of one's item for that item to be returned to the owner.  Despairing of an item means believing that the item has been lost and will not be found or returned.  

The Gemara discusses types of walls and doors - their construction and angles and whether or not rags or metal strips are attached to doors.  In questioning why found items would not be given to the previous renter of a home, the rabbis discuss money.  In Masechet Shekalim there are many passages that refer to found coins.  The second tithe requires that people bring second tithes to Jerusalem which might involve selling one's animals or produce.  Money would be found frequency. We should assume that people despair of that money right away.  Further, we do not know whether the Mishna refers to a house rented to Jews and Gentiles together, to just Jews or only to Gentiles.  Rules are different regarding each of these groups of people.

The Gemara wonders what should be done when a coin is found after two people together walked down the street.  And what about three people?  The rabbis speak of the assumptions people will make about their lost coins in these situations.  Always the conclusions are based on whether or not a person despairs of their lost items.  If so, the item need not be returned, for it is believed that the item is gone.  

The rabbis note contradicting halachot.  Leviticus 19:13 tells us "You shall not rob..." and Deuteronomy 22:1 teaches of found object, "You shall return them to your brother" and in (22:3), "You may not disregard".  One is a positive mitzvot and the others are prohibitions.  Disregarding, in this case, refers to waiting to decide to return an object.  If one waits long enough, the owner may despair his lost item and then it may be as if one has robbed the item rather than found it.

Cases are shared to elucidate the difficulties with assuming others' intentions.  One tells of a person using a sieve in the sand after losing a coin.  He does not despair of his coin.  But perhaps he does despair of his coin and he is looking for someone else's lost coin to repay himself for his loss.  

A new Mishna teaches us that if we find an item without a distinguishing mark in a store, it belongs to us.  If that item is between the counter and the storekeeper, it belongs to the storekeeper.  This is the same case in the domain of a money changer.  If a person finds coins or other items in a gift or in produce, they belong to him.  If those items are bundled, that is like a distinguishing mark and they must be proclaimed.  

The Gemara for this Mishna ends our daf.  It begins its deliberations with a discussion of money found near a money changer.   Shouldn't we assume that the money belongs to the money changer if it is in his store?  The rabbis answer, deciding that we learn from this Mishna that money lenders put their coins directly into a drawer.

The notion of despair is fascinating.  In the modern world, one's intentions are not of consequence.  It does not matter whether I feel that my wallet is gone forever or not; a person should always return my wallet when they find it.  In ancient times, though, despairing a lost item seems to be the defining factor in deciding whether or not the item should be returned at all.  I want to give this more thought.