יֵאוּשׁ שֶׁלֹּא מִדַּעַת, אַבָּיֵי אָמַר: לָא הָוֵי יֵאוּשׁ. וְרָבָא אָמַר: הָוֵי יֵאוּשׁ.

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.

בְּדָבָר שֶׁיֵּשׁ בּוֹ סִימָן – כּוּלֵּי עָלְמָא לָא פְּלִיגִי דְּלָא הָוֵי יֵאוּשׁ. וְאַף עַל גַּב דְּשַׁמְעִינֵיהּ דְּמִיָּאַשׁ לְסוֹף, לָא הָוֵי יֵאוּשׁ, דְּכִי אֲתָא לִידֵיהּ – בְּאִיסּוּרָא הוּא דַּאֲתָא לִידֵיהּ, דִּלְכִי יָדַע דִּנְפַל מִינֵּיהּ לָא מִיָּאַשׁ, מֵימָר אָמַר: סִימָנָא אִית לִי בְּגַוֵּיהּ, יָהֵבְנָא סִימָנָא וְשָׁקֵילְנָא לֵיהּ.

The Gemara limits the scope of the dispute. In the case of an item on which there is a distinguishing mark, everyone agrees that despair that is not conscious is not considered despair. And even though we hear that he ultimately despairs of recovering the item, it is not considered despair, as when the item came into the possession of the finder, it was in a prohibited manner that it came into his possession. It is prohibited because when the owner learns that it fell from his possession, he does not despair of its recovery immediately. Instead, he says: I have a distinguishing mark on the item; I will provide the distinguishing mark to the finder, and I will take it.

בְּזוּטוֹ שֶׁל יָם וּבִשְׁלוּלִיתוֹ שֶׁל נָהָר, אַף עַל גַּב דְּאִית בֵּיהּ סִימָן, רַחֲמָנָא שַׁרְיֵיהּ, כִּדְבָעֵינַן לְמֵימַר לְקַמַּן.

With regard to an item swept away by the tide of the sea or by the flooding of a river, even though the item has a distinguishing mark, the Merciful One permits the finder to keep it as we seek to state below, later in the discussion.

כִּי פְּלִיגִי בְּדָבָר שֶׁאֵין בּוֹ סִימָן. אַבָּיֵי אָמַר: לָא הָוֵי יֵאוּשׁ, דְּהָא לָא יָדַע דִּנְפַל מִינֵּיהּ. רָבָא אָמַר: הָוֵי יֵאוּשׁ, דִּלְכִי יָדַע דִּנְפַל מִינֵּיהּ – מִיָּאַשׁ. מֵימָר אָמַר: סִימָנָא לֵית לִי בְּגַוֵּיהּ, מֵהַשְׁתָּא הוּא דְּמִיָּאַשׁ.

When they disagree, it 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.

(סִימַן פמג״ש ממקגט״י ככסע״ז)

The Gemara proceeds to cite a series of proofs for and against the opinions of Abaye and Rava and provides a mnemonic representing those proofs: Peh, mem, gimmel, shin; mem, mem, kuf, gimmel, tet, yod; kaf, kaf, samekh, ayin, zayin.

תָּא שְׁמַע: פֵּירוֹת מְפוּזָּרִין, הָא לָא יָדַע דִּנְפַל מִינֵּיהּ! הָא אָמַר רַב עוּקְבָא בַּר חָמָא: הָכָא בְּמַכְנַשְׁתָּא (דְּבִיזְרֵי) [דְּבֵי דָרֵי] עָסְקִינַן, דַּאֲבֵידָה מִדַּעַת הִיא.

The Gemara suggests: Come and hear a proof from the mishna: If one found scattered produce, it belongs to him. The Gemara asks: Why does it belong to him; isn’t the owner unaware that they fell from him? Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: Didn’t Rav Ukva bar Ḥama say: We are dealing with kernels of wheat that remained during the gathering of grain on the threshing floor? The owner knowingly left the kernels on the threshing floor because it was not worth his while to gather them. That is a deliberate loss, and therefore the despair is conscious. Therefore, this clause in the mishna is not relevant to the dispute in question.

תָּא שְׁמַע: מָעוֹת מְפוּזָּרוֹת – הֲרֵי אֵלּוּ שֶׁלּוֹ, אַמַּאי? הָא לָא יָדַע דִּנְפַל מִינֵּיהּ! הָתָם נָמֵי כִּדְרַבִּי יִצְחָק דְּאָמַר: אָדָם עָשׂוּי לְמַשְׁמֵשׁ בְּכִיסוֹ בְּכׇל שָׁעָה וְשָׁעָה. הָכָא נָמֵי אָדָם עָשׂוּי לְמַשְׁמֵשׁ בְּכִיסוֹ בְּכׇל שָׁעָה וְשָׁעָה.

The Gemara suggests: Come and hear a proof from the mishna: If one found scattered coins, these belong to him. The Gemara asks: Why do they belong to the one who finds them; isn’t the owner unaware that they fell from him? Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: There too, it is not a case of unconscious despair, in accordance with the statement of Rabbi Yitzḥak, who says: A person is prone to feel his money pouch constantly. Here too, a person is prone to feel his money pouch constantly; therefore, it is reasonable to assume that shortly after the coins fell, the owner became aware of his loss.

תָּא שְׁמַע: עִיגּוּלֵי דְבֵילָה וְכִכָּרוֹת שֶׁל נַחְתּוֹם – הֲרֵי אֵלּוּ שֶׁלּוֹ. אַמַּאי? וְהָא לָא יָדַע דִּנְפַל מִינֵּיהּ? הָתָם נָמֵי, אַגַּב דְּיַקִּירֵי מִידָּע יָדַע בְּהוּ.

The Gemara suggests: Come and hear a proof from the mishna: If one found round cakes of pressed figs or baker’s loaves, these belong to him. The Gemara asks: Why do they belong to the one who finds them; isn’t the owner unaware that they fell from him? Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: There too, it is not a case of unconscious despair. Since these items are heavy he knows that they fell, and it is reasonable to assume that shortly after they fell the owner became aware of his loss.

תָּא שְׁמַע: וּלְשׁוֹנוֹת שֶׁל אַרְגָּמָן – הֲרֵי אֵלּוּ שֶׁלּוֹ. וְאַמַּאי? הָא לָא יָדַע דִּנְפַל מִינֵּיהּ! הָתָם נָמֵי, אַגַּב דַּחֲשִׁיבִי מַשְׁמוּשֵׁי מְמַשְׁמֵשׁ בְּהוּ, וְכִדְרַבִּי יִצְחָק.

The Gemara suggests: Come and hear a proof from the mishna: If one found strips of purple wool, these belong to him. The Gemara asks: And why do they belong to the one who finds them; isn’t the owner unaware that they fell from him? Apparently, despair that is not conscious is considered despair. The Gemara rejects that proof: There too, it is not a case of unconscious despair. Since they are significant and valuable, the owner feels around for them to ensure that they are not lost, and therefore, it is reasonable to assume that shortly after the strips fell, the owner became aware of his loss. This reasoning is in accordance with the statement of Rabbi Yitzḥak with regard to coins.

תָּא שְׁמַע: הַמּוֹצֵא מָעוֹת בְּבָתֵּי כְנֵסִיּוֹת וּבְבָתֵּי מִדְרָשׁוֹת, וּבְכׇל מָקוֹם שֶׁהָרַבִּים מְצוּיִין שָׁם – הֲרֵי אֵלּוּ שֶׁלּוֹ, מִפְּנֵי שֶׁהַבְּעָלִים מִתְיָאֲשִׁין מֵהֶן. וְהָא לָא יָדַע דִּנְפַל מִינֵּיהּ? אָמַר רַבִּי יִצְחָק: אָדָם עָשׂוּי לְמַשְׁמֵשׁ בְּכִיסוֹ בְּכׇל שָׁעָה.

The Gemara suggests: Come and hear a proof from a baraita: In the case of one who finds coins in synagogues, and in study halls, and in any place where the multitudes are found, these coins belong to him due to the fact that the owners despair of their recovery. Why do they belong to him; isn’t the owner unaware that the coins fell from him? Rabbi Yitzḥak says: A person is prone to feel his money pouch constantly; therefore, it is reasonable to assume that shortly after the coins fell, the owner became aware of his loss.

תָּא שְׁמַע: מֵאֵימָתַי כׇּל אָדָם מוּתָּרִים בַּלֶּקֶט? מִשֶּׁיֵּלְכוּ בָּהּ הַנָּמוֹשׁוֹת. וְאָמְרִינַן: מַאי נָמוֹשׁוֹת? וְאָמַר רַבִּי יוֹחָנָן: סָבֵי דְּאָזְלִי אַתִּיגְרָא. רֵישׁ לָקִישׁ אָמַר: לָקוֹטֵי בָּתַר לָקוֹטֵי.

The Gemara suggests: Come and hear a proof from a mishna (Pe’a 8:1): From when is it permitted for any person to collect gleanings, which the Torah designates as exclusively for the poor (see Leviticus 19:9–10)? It is permitted once the nemushot have walked in the field. And we say in interpreting the mishna: What are nemushot? And Rabbi Yoḥanan said: They are the elderly people who walk leaning on a cane. Since they walk slowly, they will see any stalks that remain and take them. Reish Lakish said: They are the second wave of gleaners who pass through the field after the initial gleaners, collecting any stalks that remain.

וְאַמַּאי? נְהִי דַּעֲנִיִּים דְּהָכָא מִיָּאֲשִׁי – אִיכָּא עֲנִיִּים בְּדוּכְתָּא אַחְרִיתָא דְּלָא מִיָּאֲשִׁי! אָמְרִי: כֵּיוָן דְּאִיכָּא עֲנִיִּים הָכָא, הָנָךְ מֵעִיקָּרָא אִיָּאוֹשֵׁי מִיָּאַשׁ, וְאָמְרִי: עֲנִיִּים דְּהָתָם מְלַקְּטִי לֵיהּ.

The Gemara asks: And why is it permitted for any person to take the stalks, given that although the poor who are here renounce ownership of the stalks after seeing the nemushot pass through the field, there are poor people in another place who are unaware of the passing of the nemushot and do not renounce ownership? Apparently, despair that is not conscious is considered despair. The Sages say in rejecting that proof: Since there are poor people here, those poor people in the other places despair of the gleanings from the outset, and they say: The poor people who are there gather the gleanings.

תָּא שְׁמַע: קְצִיעוֹת בַּדֶּרֶךְ, וַאֲפִילּוּ בְּצַד שְׂדֵה קְצִיעוֹת, וְכֵן תְּאֵנָה הַנּוֹטָה לַדֶּרֶךְ, וּמָצָא תְּאֵנִים תַּחְתֶּיהָ – מוּתָּרוֹת מִשּׁוּם גָּזֵל, וּפְטוּרוֹת מִן הַמַּעֲשֵׂר. בְּזֵיתִים וּבְחָרוּבִים – אָסוּר.

The Gemara suggests: Come and hear a proof from a mishna (Ma’asrot 3:4): If dried figs are found on the path, and even if they were found at the side of a field where dried figs are spread to dry, and likewise, if there is a fig tree whose branches extend over a path and one found figs beneath it, those figs are permitted and taking them is not prohibited due to the prohibition of robbery. And as these are ownerless property, one who finds them is exempt from the obligation to separate tithes. In the case of olives or of carobs, it is prohibited to take the fruit.

בִּשְׁלָמָא רֵישָׁא לְאַבָּיֵי לָא קַשְׁיָא: אַגַּב דַּחֲשִׁיבִי – מְמַשְׁמֵשׁ בְּהוּ. תְּאֵנָה נָמֵי מִידָּע יְדִיעַ דְּנָתְרָא.

Granted, the first clause of the mishna is not difficult according to the opinion of Abaye, as he can explain that one consciously despairs of recovering the dried figs. Since dried figs are significant and valuable, one feels around for them to ensure that they have not become lost. It is reasonable to assume that shortly after the fruits fell, the owner became aware of his loss and despaired of recovering them. In the case of the fig tree, too, one knows that it is a common occurrence for the fruit of the fig tree to fall from the tree and he renounces ownership from the outset.

אֶלָּא סֵיפָא לְרָבָא קַשְׁיָא, דְּקָתָנֵי ״בְּזֵיתִים וּבְחָרוּבִים אָסוּר״, אָמַר רַבִּי אֲבָהוּ: שָׁאנֵי זַיִת, הוֹאִיל וְחָזוּתוֹ מוֹכִיחַ עָלָיו, וְאַף עַל גַּב דְּנָתְרִין זֵיתֵי מִידָּע יְדִיעַ, דּוּכְתָּא דְּאִינִישׁ אִינִישׁ הוּא.

But the latter clause of the mishna is difficult according to the opinion of Rava, as it teaches: In the case of olives or of carobs, it is prohibited to take the fruit. Apparently, despair that is not conscious is not considered despair. Rabbi Abbahu said: The halakha of an olive is different, since its appearance proves the identity of the owner, as the fruit fallen from the tree appears similar to the fruit on that tree, and even though the olives fall off the tree, the one who finds the olives knows that an olive tree that is located in a place that is owned by a specific person belongs to that person and the owner will not renounce ownership of his fruit.

אִי הָכִי, אֲפִילּוּ רֵישָׁא נָמֵי! אָמַר רַב פָּפָּא: תְּאֵנָה עִם נְפִילָתָהּ נִמְאֶסֶת.

The Gemara asks: If so, then even in the first clause as well, it should be prohibited to take the fruit that fell from the fig tree. Rav Pappa said: A fig becomes disgusting with its fall from the tree. Even if the fruit can be attributed to the tree of origin, since it is no longer fit for consumption, the owner would not want the fruit and consequently renounces his ownership of it.

תָּא שְׁמַע: הַגַּנָּב שֶׁנָּטַל מִזֶּה וְנָתַן לָזֶה, וְכֵן גַּזְלָן שֶׁנָּטַל מִזֶּה וְנָתַן לָזֶה,

The Gemara suggests: Come and hear a proof from a baraita: A thief who took an item from this person and gave it to that person, and likewise, a robber who took an item from this person and gave it to that person,