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1) ONE WHO DOES NOT KNOW TO DESPAIR

(a) (Mishnah): Dried figs on the road, even next to a field of drying figs, or figs found under a tree whose foliage leans over the public domain - one who finds them may keep them, they are exempt from Ma'aser;

1. By olives and carobs, they are forbidden.
2. The first clause is not difficult for Abaye - since figs are valuable, the owner (constantly checks and) is aware once it falls off.
3. The second clause refutes Rava!

(b) Answer (R. Avahu): Because olives are recognizable (from whose tree they fell), the owner does not despair.
(c) Question: If so, even by figs, the owners should not despair!
(d) Answer (Rav Papa): A fig becomes detestable when it falls.
(e) (Beraisa): Property of Reuven was taken by a thief, (open) robber or river and given to Shimon - Shimon may keep it.

1. By a robber or river, Reuven is aware - but by a thief, he is not aware!
2. Answer (Rav Papa): When the Beraisa says 'thief', it refers to armed robbers.
3. Question: But is also speaks of a robber!
4. Answer: It speaks of two kinds of robbers.

(f) (Beraisa): A flooding river took Reuven's beams, wood and rocks and deposited them by Shimon - he may keep them, because Reuven despaired.

1. Inference: Unless (we heard that) Reuven despaired, Shimon could not keep them!

(g) Rejection: The case is, Reuven could save them.
(h) Question: But the end of the Beraisa says, if Reuven was chasing after them, Shimon must return them;

1. If Reuven could save them, even if he was not chasing them, Shimon must return them!

(i) Answer: The case is, Reuven could save them with difficulty.

1. If he chases them, he shows that he does not despair; if not, we may assume that he would despair.

(a) (Beraisa) Question: What is the case of one who takes Terumah without the will of the owner, such that the Terumah takes effect?
(b) Answer: Reuven entered Shimon's field, gathered fruit, and separated Terumah without consulting Shimon;

1. If Shimon considers Reuven's separation of Terumah as theft, the Terumah does not take effect; if not, it takes effect.
2. Question: How do we know if he considers it as Terumah or not?
3. Answer: If when Shimon sees him, he says 'Why didn't you take nicer ones?' - if there are nicer fruit which Reuven did not select for the Terumah, Shimon is being sincere, and the Terumah takes effect;

i. If Reuven took the best fruit, Shimon is being sarcastic - he resents that Reuven stole the best fruit to be Terumah, so it does not take effect.
ii. If Shimon gathered fruit and added to the Terumah that Shimon separated, whether or not Reuven took the best fruit, Reuven's separation takes effect.

(c) Question: When it is found that there is better fruit - how does the separation take effect?

1. At the time Reuven called it Terumah, he did not know if Shimon would agree to it!

(d) Answer (Rava, on behalf of Abaye): The case is, Shimon had made Reuven an agent to separate Terumah.
(e) [Version #1 (Our text): Presumably, this is correct - had he not made him an agent, the Terumah could not take effect!

1. "You...also you" - this includes that an agent (and only an agent!) may separate Terumah for the owner;
2. Just as the owner separates as he wants, the agent can only separate if the owner wants him to.
3. The case is, Shimon did not tell Reuven which fruit to make Terumah. Most people select average produce to be the Terumah, but Reuven took nicer fruits.

i. Shimon said 'Why didn't you take nicer ones?' - if there are nicer fruits, the Terumah takes effect; if there are no nicer fruits, it does not take effect.]

(f) [Version #2 (Gra and many Rishonim) Objection: Is this reasonable?!

1. "You...also you" - this includes that an agent may separate Terumah for the owner - just as the owner separates as he wants, the agent can only separate if the owner wanted him to.
2. Once Reuven was appointed, it doesn't matter if Shimon approves of the fruits he selected!

(g) Answer: Shimon did not specify which fruits to take, and most people select average produce to be the Terumah, but Reuven took nicer fruits - therefore, unless we see that Shimon approves, he was not authorized to do this.

1. Shimon said 'Why didn't you take nicer ones?' - if there are nicer fruits, the Terumah takes effect; if there are no nicer fruits, it does not take effect.]

(h) Ameimar, Mar Zutra and Rav Ashi came to Mari bar Isak's orchard. Mari's sharecropper set dates before them. Ameimar and Rav Ashi ate, Mar Zutra did not. Mari found them.

1. Mari (to his sharecropper): Why didn't you give them from these nice ones?
2. Ameimar and Rav Ashi (to Mar Zutra): Why don't you eat now?

i. (Beraisa): If there are better fruits, the Terumah takes effect (because the owner is sincere)!

3. Mar Zutra: Rava taught, 'Why didn't you take nicer ones?' only applies to Terumah, for people are happy to do Mitzvos (nicely);

i. Here, Mari only suggested giving nicer ones because he was embarrassed (to say that he did not want to give us).

(i) (Beraisa): If produce was still wet from dew and the owner was pleased, they are Huchshar (prepared to receive Tum'ah);

1. If they became dry, even if the owner was later pleased, they are not Huchshar.

2. Suggestion: This is because we do not (ever) consider current satisfaction as if retroactively, he was pleased.
3. Rejection: Hechsher is an exception - the Torah writes "Ki Yiten (when he will put)" - he must be happy when the liquid is (put) on the produce.
4. Question: If so, when the produce was still wet when he was pleased, why is it Huchshar?
5. Answer: As Rav Papa taught.

i. Contradiction (Rav Papa): The Torah writes "Yiten (he will put)" - but tradition says to read this as "Yutan (will be put)"!
ii. Resolution (Rav Papa): We require that (a liquid) will be put which resembles when he will put - just as a man only puts if he wants to put, he must want that the liquid was put.

(j) Question (R. Yochanan citing R. Yishmael ben Yehotzedek): How do we know that one may keep something that was taken by an overflowing river?
(k) Answer (R. Yochanan citing R. Yishmael): "And so you will do to his donkey...that will be lost from him, and you find it (you must return it)" - this only applies when it is lost from him, but available to others, not when it is hopeless for anyone to retrieve it.

1. Presumably, the case of something forbidden to take resembles what is permitted - just as one is permitted something (in the river) whether or not it has a Siman , also one is forbidden to take a lost object (on the land) whether or not it has a Siman.
2. This refutes Rava; The law is as Abaye against Rava in 6 places, whose acronym is YA'AL K'GAM:

i. Yud - Yi'ush (despair) without knowledge;
ii. Ayin - Edim Zomemim are disqualified retroactively;
iii. Lamed - (Rashi - Lechi (a post to permit carrying in an alley); Tosfos - Leidah (days of childbirth on which blood is not seen; or, Lo Efshar (inevitable), undesired benefit from forbidden things);
iv. Kuf - Kidushin in which the man (Tosfos - becomes) forbidden to have relations with the woman;
v. Gimel - Giluy (revealing) desire to nullify a Get;
vi. Mem - Mumar (a wanton sinner) who sins to fulfill his desires.

(l) Question (Rav Acha brei d'Rava): Since the law is as Abaye - why are we allowed to eat dates that fall off other people's trees in the wind?
(m) Answer (Rav Ashi): Since insects eat them, people despair from the beginning from dates which will fall.
(n) Question: How can we answer when the owners are orphans (minors) - their despair is invalid!
(o) Answer: That is an unusual case, we are not concerned for it.
(p) Questions: What if he surrounded them with a wall of stones? (Rashi - insects cannot eat them; Aruch - this shows that he wants them.) What if we know that the owners are minors?
(q) Answer: Indeed, then it is forbidden.

(a) (Mishnah): One may keep (small) bundles of sheaves found in the public domain.
(b) [Version #1 (Rabah): This is even if they have a Siman.

1. Inference: Rabah holds, a Siman which is apt to be (wiped out when) trampled is not a valid Siman .

(c) (Rava): One may keep them only if they do not have a Siman.
(d) Inference: Rava holds, a Siman which is likely to be trampled is not a valid Siman.]
(e) [Version #2 (Rabah): A Siman which is likely to be trampled is not a valid Siman.
(f) (Rava): It is a valid Siman.]
(g) Question (against Rava - Mishnah): One may keep bundles of sheaves found in the public domain...bundles of sheaves found in a private domain, he takes them and announces (to return them).

1. Question: What is the case?

i. If there is no Siman on them - in a private domain, why must he return them?

2. Answer: Rather, there is a Siman on them - and in the public domain, he keeps them!

i. We conclude that a Siman which is likely to be trampled is not a valid Siman - this refutes Rava!

(h) Answer (for Rava): Really, there is no Siman on them - but the place they were found is a Siman.

1. Rabah holds that the place is not a Siman ; they explicitly argued on this.

i. (Rabah): The place is not a Siman .
ii. (Rava): It is a Siman .

(i) Question (Beraisa): One may keep (small) bundles of sheaves found in the public domain; if found in a private domain, he takes them and announces;

1. Large bundles of sheaves, whether in a private or public domain, he takes them and announces.
2. This is difficult for Rabah and Rava!

(j) Answer #1 (Rabah): Small bundles of sheaves have Simanim; in the public domain, the Siman will be trampled (so the finder keeps them); in a private domain, they will not be trampled;

1. Big bundles, because they are tall, are not trampled even in a public domain.

(k) Answer #2 (Rava): The only Siman on the bundles is their place. In the public domain, bundles get kicked around, they do not remain in the place left; in a private domain, they remain where left;

1. Big bundles, because they are heavy, are not kicked around even in a public domain.