There are three different categories of distinguishing marks (simonim-סִימָנִין). The best category is a simon muvhak (סִימָן מוּבְהָק), clear-cut distinguishing mark. A person’s face is an example of a simon muvhak. The worst category is a simon garu’a (סִימָן גָרוּעַ). These are pretty nondescript distinguishing marks like the item’s color. Of course the in between category is simon bainoni (סִימָן בֵּנוֹנִי), an average distinguishing mark. In all the discussions about distinguishing marks on dappim TB Baba Metzia 27-8 fall in the middle category. If the distinguishing mark was a simon muvhak, of course one will return the lost object. If the distinguishing mark was nondescript, of course one wouldn’t return it without further investigation.
The Gemara on dappim TB Baba Metzia 27-8 discusses the second major sugiyah in our chapter. It analyzes whether “identification of an item on the basis of distinguishing marks by Torah law (deoraita -דְּאוֹרָיְיתָא) or is it by rabbinic law? (derabanan- דְרַבָּנַן)” (Sefaria.org translation)
There is a real-life difference. “The practical difference is with regard to
returning the bill of divorce of a woman that was lost by an agent before
its delivery, on the basis of distinguishing marks. If you say that the
identification of an item on the basis of distinguishing marks is by Torah
law, we return the document and allow the agent to transmit it to the
woman. But if you say that it is by rabbinic law, we do not
return the document, because when the Sages institute an ordinance, it
is only with regard to monetary matters they have the authority to
declare property ownerless; but with regard to ritual matters, the Sages do
not institute an ordinance. They lack the authority to abrogate the
prohibitions by Torah law that are associated with a woman’s marital status. (If
the rabbis allow a woman to marry based on that invalid get, she would become an adulterous and be subject to all its
penalties. That would be a serious transgression; consequently, if
distinguishing marks were only of rabbinic ordinance, they would not give the lost
get to the woman out of extreme
caution.-gg) ” (Sefaria.org translation)
Although the
Gemara never conclusively answers the question, it certainly leans to the
conclusion that distinguishing marks are deoraita.
“Rava said: Identification of an item on the basis of distinguishing
marks is by Torah law, as it is written: “And if your brother be not
near you, and you know him not, then you shall bring it into your house, and
it shall be with you until your brother claims [derosh] it, and you shall
return it to him” (Deuteronomy 22:2). Would it enter your mind that he would
give the lost item to him before he claims it? How can the finder
return it if he does not know the identity of the owner? Rather, the
verb derosh is not referring to the claim of the owner; it is referring
to the scrutiny performed by the finder. Scrutinize him [darshehu]
to determine whether the claimant is a swindler or whether he
is not a swindler. Only then may you return the lost item to him. What,
is it not that the one who claims the lost item proves that he is not a
swindler on the basis of distinguishing marks that he provides? Rava
affirms: Conclude from it that identification of an item on the basis of
distinguishing marks is by Torah law.” (Sefaria.org translation)
The last
discussion of this sugiyah weighs the
merits of competing simonim.
“If you say
that identification of an item on the basis of distinguishing marks is by Torah
law, then in a case where an item is found and two people claim it as theirs,
and one describes distinguishing marks on the item and the other
describes distinguishing marks on the item, the finder shall leave
it in his possession and not give it to either claimant (Rashi adds until
Elijah comes who will herald the Messiah-gg). In a case where one person
describes distinguishing marks on the item and the other brings
two witnesses to support his claim of ownership, the item shall be
given to the claimant with witnesses. In a case where one person
describes distinguishing marks on the item and the other
describes distinguishing marks on the item and brings one
witness to support his claim of ownership, the one witness is as one who
is not there, and the finder shall leave it in his
possession. The testimony of a single witness has no legal standing in this
case.
“In a case where one claimant to a found garment brings witnesses who testify that the garment was woven for him, and the other claimant brings witnesses who testify that the garment had fallen from him, the garment shall be given to the claimant whose witnesses testified that the garment had fallen from him, as we say that perhaps the one for whom it was woven sold the garment and it fell from another person, who is the current owner.
“If one claimant provides the measure of length of a lost garment and the other provides the measure of its width, the garment shall be given to the claimant who provided the measure of its length, as one can approximate the measure of its width when its owner dons the garment and stands, but the measure of its length cannot be approximated in that manner. Therefore, it is a more clear-cut distinguishing characteristic.
“If one claimant provides the measure of its length and the measure of its width and the other provides the measure of its gamma, its combined length and width, which together form the Greek letter gamma, but does not provide each measure individually, the item shall be given to the claimant who provided the measure of its length and the measure of its width separately.
“If one claimant provides the measure of its length and the measure of its width and the other provides the measure of its weight, the item shall be given to the claimant who provided the measure of its weight, which, because it is more difficult to approximate, is a more clear-cut distinguishing characteristic.
“Rava continues: In a case where a bill of divorce is found and it is unclear whether it had been delivered to the wife, and the husband, who reconsidered, states the distinguishing marks of the bill of divorce and claims that he did not yet give it to his wife, and the wife, who wants to be divorced, states the distinguishing marks of the bill of divorce and claims that she already received it, the document shall be given to the wife. The Gemara asks: With what distinguishing mark did she describe the bill of divorce? If we say that she described it with the measure of its height and its width, that is not a clear-cut distinguishing mark; perhaps while her husband was holding the bill of divorce, she saw it, although he had not yet given it to her. Rather, it must be that she says that there is a perforation alongside such and such letter in the document, which she could know only if the bill of divorce had been in her hand.
“In a case where the husband states the distinguishing marks of the string with which the bill of divorce is bound, and she states the distinguishing marks of the string, the document shall be given to the wife. The Gemara asks: With what distinguishing mark did she describe the string? If we say that she described it by saying that the string is white or by saying that it is red, this cannot be the mark based on which she proves her ownership, as perhaps while her husband was holding the bill of divorce, she saw the string. Rather, it must be that she stated the measure of its length. As the string was wrapped around the document, she would know its length only if the bill of divorce had been in her hand.
“In a case where the husband claims
that the bill of divorce was not given to the wife and states that it
was stored in a case, and the wife claims that she received the bill of
divorce and states that it was stored in a case, the document shall
be given to the husband. What is the reason? Identification of the
document based on its storage cannot prove her ownership, as she knows that
he places any valuable item that he has in his possession in the
case.” (Sefaria.org translation)
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