Bava Metzia 38: When and Why Can a Bailee Touch the Items in his Care?

A new Mishna teaches us that when a bailee is given produce to hold for another person, he cannot touch that produce even if it spoils.  Rabban Shimon ben Gamaliel disagrees.  He asserts that the bailee is able to sell rotting produce at the court, based on the halachot regarding returning lost items to their owners to ensure that the owners do not lose the value of their items.

The rabbis argue about whether this is recommended based on issues of the status of the item as teruma or whether it is based on an unusually fast deterioration.  If the produce were taken to be tithed when it was not - or was taken to be untitled when it was tithed already - the new owner would be put at risk of transgressing a halacha.  Deterioration is a longer story.

The Gemara spends a good amount of time discussing the deterioration of produce.  Was it actually rotting?  Was it unusual or usual for produce to deteriorate more quickly than expected?   Another baraita is mentioned here.  Oil, wine or honey that has gone bad while being held by a bailee can be sold if their owners cannot be located in the city.  This would be to protect the barrels themselves.  Further, there are uses for spoiled oil (tanners will use it on their leathers despite the smell) and spoiled honey (camels' wounds can be treated with this honey).  But bailees are permitted to touch those deposits.  

A case is made regarding food given to charity.  If home-made food was put into the charity bowl, and there were no poor people in the town, the person collecting charity would have to decide when to sell that food.  It was never permitted for him to sell it to himself, for people might assume that he bought the food at a price lower than it would sell to others.  Based on the potential for the appearance of impropriety, charity collectors are never permitted to sell to themselves.

The Gemara turns to a debate about others who touch something that is not theirs to use.  Specifically, the rabbis discuss what is done when a captive who works on the land is gone indefinitely.  Are his relatives permitted to work the land in his place? The rabbis consider whether or not this would be helpful to the owner of the property.  Interestingly, whether or not this might be helpful or painful for the family members is not a topic of conversation.

Our daf ends with a conversation about "forsaken land".  When is land truly forsaken? When should it be claimed by family members?