Finders keepers? TB Baba Metzia 21

With today’s daf TB Baba Metzia 21 we begin the second chapter of our massekhet. It too deals with finding lost objects other than documents. Simply put, when can we say finders keepers losers weepers or when we can’t keep the lost object. Rashi provides the three necessary steps when the finder can keep the lost object. 1, The object has no distinguishing sign, simon-סִימָן. 2, The original owner has despaired of retrieving it, yayush- יֵאוּשׁ. 3, Since there is yayush, the lost object becomes ownerless, hefkeir-הֶפְקֵר.

We begin to study a classic discussion whether there can be retroactive yayush between Rava and Abaye. Let’s say somebody dropped his brand-new notebook but didn’t realize it. Sometime later another person picked up the lost notebook. When the person finally goes home much later, he realizes that he dropped his notebook and has yayush of ever retrieving it. The finder found the notebook before the owner had yayush.

“With regard to one’s despair of recovering his lost item that is not a conscious feeling, i.e., were he aware of the loss of his property, he would have despaired of its recovery, but he was unaware of his loss when the finder discovered the item, Abaye said: It is not considered despair; the owner maintains ownership of the item, and the finder may not keep it. And Rava said: It is considered despair and the finder may keep it.” (Sefaria.org translation)

The Gemara limits the disagreement. They both agree if the object has a distinguishing sign, there is no retroactive yayush. If the finder keeps it, he is a thief. They both agree that when the object fell into a body water and the tide swept it onto dry land or the water overflowed its banks, even if it has a distinguishing sign, the finder gets to keep it. Rava and Abaye only disagree “is with regard to an item in which there is no distinguishing mark. Abaye said: Despair that is not conscious is not considered despair, as he did not know that the item fell from him; therefore, he cannot despair of recovering it. Rava said: Despair that is not conscious is considered despair, as when he discovers that it fell from him, he will despair of its recovery; as he says upon this discovery: I have no distinguishing mark on the item. Therefore, it is considered from now, when the item fell, that he despairs.” (Sefaria.org translation)