Jewish audio on chabad.org This שיעור will be מסכת בבא מציעא דף כ״א starting from the beginning of the משנה, which is the beginning of the second פרק. This פרק will deal with the מצוה of השבת אבידה, the מצוה of returning a lost object. If one finds a lost article, he must return it to the person it belongs to. But this דין applies only if the person that lost the article was not מיאש, did not give up hope. And as רש״י says יאוש means if we hear him say וי לה לחסרון כיס, that woe is to me that I have a loss of money. When he says that, then we know he gave up his hope. So, then if a person finds that object after יאוש, he is not obligated to return it, but he is able to keep it. While if he finds an article which the owner was not מיאש from, he is not allowed to keep it, but he must announce it. And the גמרא later on will explain how the announcement took place. But through announcing it, the real owner will come and identify it, and he will return it to the owner. Now,

one of the ways an owner is able to identify an object is through a סימן. If there is an identification sign on this object, then the owner will be able to identify it. If an object does not have a סימן, then the owner will not be able to identify it. So, then we assume that the owner was מיאש. When the owner finds out that he lost the article, he doesn't expect to get it back because he knows that there is no way he will be able to identify it. And that is the general rule, that an object that has a סימן, then you must return, which means you must announce it and then return it, because you know that the person was not מיאש. The person hopes that he will be able to get it back by giving the סימן that's on it. But if you find an article that doesn't have a סימן, then we assume that the person who lost it was מיאש, because he knows that even if the person, someone else will find it, he will not be able to identify it. So, therefore, he probably was מיאש. So, when you find an article that has no סימן, then we assume that he was מיאש and you're allowed to keep it. And this is what the משנה is going to say. אלו מציאות שלו, these are the objects that a person finds that he's allowed to keep. ואלו חייב להכריז, and these are objects that if he finds them, he is supposed to announce them. And this משנה will only mention those articles that you are able to keep. The next משנה is going to continue and mention those articles that you must announce, because these words אלו מציאות שלו ואלו חייב להכריז are an introduction to what the משנה is going to say. So, part of it is said in this משנה, and the other part, those things that you must announce are in the next משנה. And the

משנה starts off, אלו מציאות שלו, these are the articles that you find that you're allowed to keep. מצא פירות מפוזרין, if you find scattered fruit in the street, so, then you're allowed to keep it, because we assume that the person gave up hope. או מעות מפוזרות, scattered money, so, that, too, you're allowed to keep, because since there is no identification sign on the fruit or on the money, so the person who lost it definitely gave up hope. And therefore, the person who finds it is allowed to keep it. Or if you find כריכות ברשות הרבים, small sheaves of wheat in a public place in the רשות הרבים, and רש״י gives the reason why you're allowed to keep it, because since it's in the רשות הרבים, so many people step on it, so even if it did have a סימן, the סימן probably was wiped out. And therefore, the person who lost it, knowing that this is going to happen, gave up hope. And therefore, the person who found it is allowed to keep it. ועיגולי דבילה, round cakes of pressed figs, or ככרות של נחתום, loaves of bread of a baker, and in these two cases, too, since they all look alike, all breads of bakers look alike, and all cakes of pressed figs look alike, and therefore, the person who lost it doesn't think he will ever find it, he will ever be able to identify it, and therefore he definitely gave up hope, and the person who found it is allowed to keep it. מחרוזות של דגים, rings of fish, וחתיכות של בשר, or pieces of meat, these things, too, have no סימן, and therefore the person was מיאש. וגיזי צמר, and fleeces of wool, הלקוחין ממדינתן, which have been brought from the country, which means they were brought raw. They weren't developed, they weren't made into any material, so they all look alike. and therefore the person doesn't have a סימן and is מיאש. ואניצי פשתן, bundles of flax, ולשונות של ארגמן, are stripes of purple colored wool. They used to look like tongues, that's why they are called לשונות, because לשונות means tongues. The way they used to make them, they used to look like tongues. So if you have tongues of purple wool, since they all look alike, therefore the דין is that you are allowed to keep them. הרי אלו שלו, all these belong to the person who found them.

דברי רבי מאיר, that is the opinion of רבי מאיר. רבי יהודה אומר, רבי יהודה says, כל שיש בו שינוי, anything that has any change, there is something unusual there, חייב להכריז, that must be announced. כיצד, for instance, מצא עיגול, if you find a round of figs, ובתוכו חרס, and inside there was a piece of earthenware, or כיכר, you find a loaf of bread, ובתוכו מעות, and inside there is money. So since there is something unusual there, that is a סימן, and therefore we do not assume that the owner was מיאש, and the finder must announce it. רבי שמעון בן אלעזר אומר, רבי שמעון בן אלעזר says, כל כלי אנפוריא, any new object, אין חייב להכריז, you do not have to announce. And the גמרא will explain why. And one of the things is because the one that lost it still didn't get a chance to see all the signs on it, and therefore he probably wouldn't be able to identify it even if it had a סימן. So we assume he was מיאש, and therefore the person who found it is allowed to keep it according to רבי שמעון בן אלעזר. Then the גמרא explains the משנה. It said in the משנה, מצא פירות מפוזרין, if you find scattered fruit, you are allowed to keep it. And the

גמרא asks, וכמה, how much fruit, what quantity of fruit is scattered in what size of a space? אמר רבי יצחק, so רבי יצחק said, קב בארבע אמות. If a קב of fruit, a קב is a kind of measurement, if that amount of fruit was scattered in a space of four אמות, of four cubits, then the דין is that you're allowed to keep it. But the גמרא asks, היכי דמי, what is this case talking about? אי דרך נפילה, if in a way of falling, which means if you could tell that it fell down accidentally, the way the fruit are scattered on the ground, you could see that it fell down by accident, the person lost it, אפילו טובא נמי, so then even if there is more than a קב, you still should be able to keep it. Since it has no סימן, so the person who lost it will definitely not be able to identify them, so certainly he was מיאש, so you should be able to keep it even if there is more than a קב in four אמות. ואי דרך הינוח, if it's a way of putting down, if you could tell from the way it's scattered that someone put it down intentionally, אפילו בציר מהכי נמי לא, so even if it's less than that, you also shouldn't be able to take it, since we assume that the owner put it down, he will come back to take it later, so how are you allowed to take it? The גמרא says, אמר רב עוקבא בר חמא, so רב עוקבא בר חמא answered, במכנשתא דבי דרי עסקינן, we're dealing here in the case where this was left over on the threshing floor after the person finished threshing his field. And that's where we say that if it's a קב in four אמות, then you're allowed to take it. If it is more than a קב in four אמות, you're not allowed to take, and he gives the reason why, because קב בארבע אמות, if it's only a קב scattered within four אמות, דנפיש טרחייהו, there's a lot of trouble to take it, לא טרח איניש, so a person would not trouble himself to take it, so therefore, ולא הדר אתי, the owner will not come back, ושקיל להו, to take it. And therefore, אפקורי מפקר להו, we assume that he is מפקר it, he gives up his ownership of this that he left. So therefore, anybody who finds it is allowed to take it. בציר מהכי, but if it was less than that, if it was scattered in a smaller area than four אמות, then it is not such a great trouble to gather together, so therefore we say, טרח, he would trouble himself, והדר אתי, he would come back, ושקיל להו, and he will take it, ולא מפקר להו, and he is not מפקר it, he does not give up hope. And therefore, no one is allowed to take it. So when we said that the only time you're allowed to take it is if it was a קב scattered within four אמות, is speaking in this case, when they left some of the wheat after the threshing, so then if it is a קב בארבע אמות, that's when you're allowed to take it. Then the גמרא says,

בעי רבי ירמיה, רבי ירמיה asked an איבעיא, he asked a question, חצי קב בשתי אמות מהו, what would be the דין if you find a half of a קב scattered in two אמות? What would be the דין? In proportion it's the same as one קב in four אמות, but לפועל, it is not the same, because it is only a half a קב in two אמות. What would be the דין? And he explains what the reasoning of his question is: Do we say that קב בארבע אמות, טעמא מאי? What is the reason, why do we say that if it was a קב in four אמות you are allowed to take? Is it משום דנפיש טרחייהו, because there is a big bother to take it, and therefore we assume he won't come back, and therefore you are allowed to take it? So according to that, חצי קב בשתי אמות, if it's only a half a קב in two אמות, כיוון דלא נפיש טרחייהו, since the trouble is not that great, because it's only scattered in two אמות, לא מפקר ליה, the owner we assume is not מפקר it, and therefore you shouldn't be able to take it. או דילמא, or maybe the reason why you are allowed to take if you find it scattered, a קב in four אמות, is משום דלא חשיבא, because it is not important. It is not enough important that a person should trouble himself and come back and take it, because it is only a קב. So then, if so, חצי קב בשתי אמות, if it's only a half a קב in two אמות, כיוון דלא חשיבא, that is also not חשוב, since it's even less than a קב, so certainly מפקר ליה, he is מפקר it, and you would be able to take it. Then he

has another question: קביים בשמונה אמות מהו? What would be the דין if you find two קבים scattered in eight אמות? What is the דין? Do we say that קב בארבע אמות טעמא מאי? What is the reason why if you find a קב scattered in four אמות you are allowed to take it? Is it משום דנפיש טרחייהו, because there's a big bother, since it's scattered in such an area it is a bother to pick up, so we assume he won't come back? If that is the reason, וכל שכן קביים בשמונה אמות, so certainly if it is two קבים scattered in eight אמות, כיוון דנפישא טרחייהו טפי, since it's even a bigger bother because it's scattered even in a bigger space, so מפקר ליה, he's also מפקר it, he's certainly מפקר it, so you should be able to take if you find two קבים in eight אמות. או דילמא, or maybe משום דלא חשיבי, the reason why you are allowed to take if you find a קב scattered in four אמות is because it's not important. It's not important enough, since it's only a קב, it's not important enough for the person to come back for it. But קביים בשמונה אמות, but if it's two קבים in eight אמות, כיוון דחשיבי, that is important, because it is not a קב, it is two קבים, which is worth more. So maybe here לא מפקר ליה, he is not מפקר it, the owner will come back for it, and therefore you are not allowed to take it. Then he had another question: קב שומשומין בארבע אמות? If you find a קב of poppy seed scattered in four אמות, מהו, what is the דין there? Is the reason that קב בארבע אמות טעמא מאי? Is the reason why you are allowed to take if you find a קב scattered in four אמות, is it משום דלא חשיבי, because it's not important? It is not worth for the owner to come back to take that קב. But if that is the reason, שומשומין, but poppy seed, כיוון דחשיבי, they are important, they were very expensive, so it is much more important than regular fruit, one קב. So if that's the reason, לא מפקר ליה, by שומשומין he wouldn't be מפקר it. If the reason why you are allowed to take regular fruit if it's scattered a קב בארבע אמות is because the קב is not important enough for him to come back, but it is important to come back for שומשומין, which is more expensive, so you shouldn't be able to take it. או דילמא, or maybe משום דנפיש טרחייהו, the reason why you are allowed to take when a קב is scattered in four אמות is because the bother is too big for him to come back. וכל שכן שומשומין, so then certainly he wouldn't come back for the שומשומין, for the poppy seed. כיוון דנפישא טרחייהו טפי, since the טרחא, the trouble is even greater, because they're so small it's even harder to gather it, so מפקר ליה, so here he is certainly מפקר it, so you should be able to take if you find a קב of poppy seed scattered in four אמות. Then he has another question: קב תמרי בארבע אמות, if you have a קב of dates scattered in four אמות, or קב רמוני בארבע אמות, if you have a קב of pomegranates scattered in four אמות, מהו, what is the דין there? And he explains his question: קב בארבע אמות טעמא מאי? What is the reason why you are allowed to keep if you find a קב scattered in ארבע אמות? Is it משום דלא חשיבי, because it is not important? It's not worth for him to come and collect it. So then קב תמרי בארבע אמות, a קב of dates in ארבע אמות, and קב רמוני בארבע אמות, a קב of pomegranates that's scattered in ארבע אמות, נמי, also, כיוון דלא חשיבי, since they are not important, מפקר ליה, he is also מפקר it. He will not come back for it, and therefore the person who finds it is able to keep it. או דילמא, or maybe the reason why you are allowed to keep a קב that's scattered in ארבע אמות משום דנפישא טרחייהו, because it's a big bother to gather it, therefore we say he will not come back for it. So then קב תמרי בארבע אמות. If it's a קב of dates in ארבע אמות, וקב רמוני בארבע אמות, or a קב of pomegranates in four אמות, כיון דלא נפיש טרחייהו, this is a case where it is not a trouble to gather it, since they are big, it is very easy to gather it, לא מפקיר להו, he does not מפקיר it, he will come back for it, and he does not give up his ownership, and therefore you should not be able to take it. So we have all these questions: מאי, what is the דין? And the גמרא says, תיקו means they remain unanswered, we have no answer to these questions. And it says in ספרים that the word תיקו is an abbreviation of תשבי יתרץ קושיות ואיבעיות. תשבי means אליהו הנביא, that אליהו הנביא will answer all questions and all איבעיות, all שאלות. But לכאורה, the whole beginning of the גמרא is not understood. The גמרא quoted from the משנה that if you find scattered fruit, then you're allowed to keep it. And the גמרא asked, וכמה? What quantity of fruit in what space? And the גמרא answered, a קב scattered in four אמות. And then the גמרא asked that in which case is it that only if it's scattered a קב in four אמות you're allowed to keep? ממה נפשך! Can you tell that it was fallen, accidentally fell down, then you should be able to keep it, even if it was more. If it looks like it was put down, then even if it was less, you shouldn't be able to keep it. So when is it that only if it's a קב בארבע אמות you're allowed to keep? And the גמרא answered, במכנשתא דבי דרא. But לכאורה, the two questions of the גמרא are contradictory. If the גמרא feels that if you could tell that it fell down, then you're allowed to keep it in any way, if you could tell that it was put down, then you're never allowed to keep it, so what was the גמרא's question, וכמה? What was the גמרא's question, that what quantity of fruit in which space are you allowed to keep, if the גמרא feels that if you could tell that it was lost accidentally, then you're allowed to keep it in any case? So why did the גמרא לכתחילה feel that there was a שיעור? When the גמרא asks וכמה, how much, it seems that the גמרא felt that there must be a שיעור. And then the same גמרא asks right away after we give the שיעור, that why should we give a שיעור? Why shouldn't we say that you're allowed to keep under any circumstances if you see that it fell down? So if the גמרא feels later that under normal circumstances if you could tell that it fell down you're allowed to keep it without a שיעור, what made the גמרא לכתחילה think that there must be a שיעור? And on the other hand, if the גמרא felt לכתחילה that there was a שיעור, and that's why the גמרא asked, וכמה, what is the שיעור, so how could the גמרא ask later on that if you could tell that it fell down accidentally you should be able to keep it under all circumstances? Didn't we just say that there must be a שיעור? So תוספות says that we must say that when the גמרא asked וכמה, what is the שיעור, how much fruit in what space, it wasn't a קושיא of the גמרא. That was part of what רבי יצחק said. It's as if the גמרא would have said, after we quote from the משנה that if you find scattered fruit you're allowed to keep, the גמרא would have said, אמר רבי יצחק, that רבי יצחק said, and when can you keep those scattered fruit? Only if it was a קב בארבע אמות. It wasn't a question the גמרא asked, that the גמרא felt there must be a שיעור and רבי יצחק answered the question by giving the שיעור. It's part of רבי יצחק's words. רבי יצחק said that the משנה that says that you could keep it if it was scattered, he himself said how much, what is the שיעור, the שיעור is if it was a קב בארבע אמות. And then the גמרא asks, what makes him give a שיעור? If you could tell that it fell down, you should be able to keep him, even if it's more than a קב. On the other hand, if it looks as if it was put down, you should never be able to keep it. Why did he give a שיעור? But now the question is on רבי יצחק himself: what forced רבי יצחק to say that there is a שיעור, and then he would have to come to an answer that the שיעור is given במכנשתא דבי דרא, why didn't he learn that it's without a שיעור, and when the משנה says that if you find scattered fruit you're allowed to keep them, it is because you could tell that it fell down accidentally? And תוספות says that that is because of what the גמרא says on עמוד ב'. There, we find a מחלוקת between אביי ורבא concerning יאוש שלא מדעת, as we will see soon, and the גמרא is forced to answer according to אביי that this משנה, where it says that if you find scattered fruit you're allowed to keep it, is only במכנשתא דבי דרא. And since רבי יצחק holds like אביי, so רבי יצחק was forced to say that this is במכנשתא דבי דרא, and therefore he did not want to say that the משנה is speaking in a case where you could tell that it fell down accidentally and therefore you're allowed to keep the fruit, because then it would be a קושיא on אביי. So he was forced to say that it's speaking במכנשתא דבי דרא, and therefore there is a שיעור. And if it's a קב בארבע אמות, we assume he will not come back for it, the owner, and therefore the one that finds it is able to keep it, but if it was more than a קב in ארבע אמות, then we assume the owner will come back back, and that's why you're not allowed to keep. So it is because of the שיטה of אביי that the גמרא says on כ״א עמוד ב׳ that רב יצחק is forced to say that it is קב בארבע אמות. Then תוספות asks another קשיא. One of the questions of רבי ירמיה was, if you find a half a קב in two אמות, what is the דין? Are you allowed to keep it or not? So תוספות asks, לכאורה, the whole question is not understood. Isn't a half a קב in two אמות exactly the same thing as one קב in four אמות? Because all it is is twice a half a קב in two אמות. So if we say that in the proportion of a קב in four אמות a person will not come back, so why should we think he will come back for a half a קב in two אמות? Even if we say that the reason is because of the טירחא, that why won't he come back for a קב in four אמות, because he won't want to be מטריח himself, but that same טירחא that you have for a קב in four אמות you have for a half a קב in two אמות, because all a קב in four אמות is is double a קב in two אמות. So if a person will not be

מטריח himself to collect a קב in four אמות, he also will not be מטריח himself to collect a half a קב in two אמות, because really it is exactly the same thing. It is like twice a half a קב in two אמות. And תוספות answers that it's a psychological thing. Even though it's the same, but when a person knows that there is a whole קב there scattered in four אמות, he will not be מטריח himself because he's not going to come and just take half of that, half of the קב that's scattered in two אמות. If he's there already, he's going to collect the whole thing. And since to collect the whole thing is a טירחא, we say he will not come back. But when there is only a half a קב in two אמות, even though proportion is the same, but still he knows that by collecting a half a קב in two אמות he finishes everything that's there, so for that a person will come back. Another תירוץ that תוספות gives that really a half a קב in two אמות is not half of a קב in four אמות, because when we're saying four אמות, we mean four by four. Half of four by four is two by four. When the גמרא asks about a half a קב in two אמות, we mean in two by two. And that's what the גמרא asks. It could be that a קב in four אמות, in four by four, a person will not come back because it's scattered in a big area and it's a big טירחא, but if it's a half a קב that's scattered only in an area of two by two, which is less than half of four by four, so maybe here, since it is you get half of the amount of the fruit scattered in an area which is smaller than half of the four אמות, maybe here a person will be מטריח to come back. And therefore the גמרא asks, maybe over there the דין should be that you shouldn't be able to take. Then the

גמרא continues, איתמר, we learned, יאוש שלא מדעת. If a person is מיאש without knowing about it, in other words, a subconscious יאוש, really it means that a person was not מיאש from the object he lost, but the reason he was not מיאש yet was because he doesn't even know that he lost it. But it's a kind of object that had he known that he lost it, he would have definitely been מיאש. So the question is, is that subconscious יאוש, before he was מיאש actually, is that subconscious יאוש considered a יאוש, that if a person finds it at that point that he's allowed to keep it, or is he not allowed to keep it? And the גמרא says, אביי אמר, אביי says, לא הוי יאוש. That subconscious יאוש is not considered יאוש. And therefore, if a person finds that object before the owner knew he lost it, even though he will be מיאש later definitely, but nevertheless, since at this point he wasn't מיאש yet, you are not allowed to keep it. ורבא אמר, and רבא says, הוי יאוש, it is considered יאוש. Since when he will find out that he lost it, he will definitely be מיאש, so then now, even, it is considered יאוש. And the גמרא explains what this is all about.

בדבר שיש בו סימן, if the object that was lost was something that had a סימן, an identification mark, כולי עלמא לא פליגי, then everyone doesn't argue, everyone would agree, דלא הוי יאוש, that it's not considered יאוש. That if a person loses an object that has a סימן, so then the one that finds it before the owner was מיאש definitely cannot keep it. Why? ואף על גב דשמעיה דמיאש לבסוף, even if we hear that the end was that he was מיאש, later on when he found out that he lost it he was מיאש, still לא הוי יאוש. Nevertheless, the one that found it cannot keep it. It is not considered יאוש, because דכי אתא לידיה, when it came to his hand, when he found it, באיסורא הוא דאתא לידיה, it came to his hand באיסור. He wasn't allowed to take it then. It doesn't really mean an איסור, he didn't do any עבירה, he picked up the object that was lost, but that means when he found The person wasn't מיאש yet, and not only wasn't he מיאש yet, it was a kind of object that we did not assume that he would have been מיאש had he known he lost it. Because דכי ידע דנפל מיניה, because when he would find out that it fell from him, לא מיאש, he wouldn't have been מיאש. מימר אמר, he would have said, סימנא אית לי בגווה, I have a סימן in it, יהיבנא סימנא, I will give the סימן, ושקילנא לה, I will take it. So therefore, we don't assume he would have been מיאש. So even if בפועל, actually, he was מיאש later, so that is an exceptional case. What he did was was not something that's expected that would have happened. But what we expect would have happened would have been that he shouldn't have been מיאש, and therefore, when he lost it and wasn't מיאש, there is no subconscious יאוש there, and therefore, everyone agrees that it's not considered יאוש and the one that found it is not allowed to keep it.

Also, if it happened בזוטו של ים ובשלוליתו של נהר, if the lost article is found in the intertidal space of the seashore or on the ground that was flooded by a river, like רש״י says, that at certain times the sea goes back and floods everything in its way, sometimes the the river overflows and then floods everything in its way, so if a person found an object that was lost through the זוטו של ים or the שלוליתו של נהר, so in this case, also everyone will agree that אף על גב דאית בה סימן, even if it's an object which does have a סימן, רחמנא שרייה, the תורה was מתיר it, you're allowed to keep it even if we know for sure the person was not מיאש. כדבעינן למימר לקמן, as we will say later on in the גמרא, the גמרא brings later on a פסוק that says that if an object was lost by a river that overflowed or anything similar to that, then you are allowed to keep it, whether the person was מיאש or not. So here again, there is no מחלוקת between אביי and רבא. הי פליגי, where do they argue? בדבר שאין בו סימן,

when the lost article was something that has no סימן, and when the person found it, the owner did not know yet that he lost it. But had he known he lost it, we assume he would have been מיאש. So אביי אמר, אביי says, לא הוי יאוש. Nevertheless, it is not considered יאוש. Since he found it before the person was actually מיאש, it is not considered יאוש. דהא לא ידע דנפל מיניה, because after all, he did not know yet that he lost it. So he wasn't actually מיאש, and as long as a person wasn't actually מיאש, you are not allowed to keep it. רבא אמר, but רבא says, הוי יאוש, it is considered יאוש, because דכי ידע דנפל מיניה, when he will find out that it fell from him, מיאש, he will be מיאש. מימר אמר, he will say, סימנא לית לי בגווה, I have no סימן in it, so how will I ever identify it? So he's definitely מיאש. So therefore, מהשתא הוא דמיאש, so from now already he's מיאש. So now already, from the moment he lost it, we consider it as if he was מיאש, and therefore the person that found it is allowed to keep it.

גמרא says, תא שמע, come here, I will ask you a קשיא. We learned in the משנה, פירות מפוזרין, if you find scattered fruit, you're allowed to keep it. But the question is, והא לא ידע דנפל מיניה, the person doesn't know that it fell from him. Why is the general דין that if you find fruit scattered in the street, you're allowed to keep it? Because, as we said before, it has no סימן and therefore we assume the owner was מיאש. But how do we know that when we found it, by then the owner already knew that he lost it? And if he did not know he lost it yet, so then it is יאוש שלא מדעת. According to אביי, who says יאוש שלא מדעת is not considered יאוש, so then you shouldn't be able to keep it unless you know for sure that by the time you found it, the owner already knew that he lost it. But והא לא ידע דנפל מיניה, the owner normally did not know he lost it. What makes us so sure that he knew that he lost it? So why is the דין that you're allowed to keep it? And since the דין is that you are allowed to keep it, that proves that רבא is right, that יאוש שלא מדעת is יאוש, and even if the owner did not know yet that he lost it, nevertheless, the finder is allowed to keep it, because we assume that when he will find out that he lost it, he will be מיאש. The גמרא says it's no קשיא. הא אמר רב עוקבא בר חמא, didn't רב עוקבא בר חמא say that הכא במכנשתא דבי דרי עסקינן, that here we're speaking in a case where it was left over on the floor of the threshing of the field? דאבידה מדעת היא, this is a lost article with knowledge, it means it wasn't lost by the owner. The

owner knows it's there, but he just was מפקיר it, he gives up his ownership because, as we said before, he won't bother to come and take it. We will use the same תירוץ he said there concerning here. He said that אדם עשוי למשמש בכיסו בכל שעה. A person touches his wallet, a person constantly feels around whether his money is with him. So הכא נמי here too, אדם עשוי למשמש בכיסו בכל שעה, that a person, since he constantly touches his purse, his wallet, to see whether his money is there, so we assume by the time someone found his lost money, he already knows that he lost it. So therefore whenever you find scattered money you're allowed to keep it, and it's not ייאוש שלא מדעת, because probably the owner that lost it already knows that he lost it, and since it has no סימן, he was definitely מייאש. Then the גמרא says, תא שמע, come hear, I'll ask you another קשיא. We

learned in the משנה: עיגולי דבילה, you have the rings of the dried figs, וככרות של נחתום, the breads of the bakers, הרי אלו שלו, they belong to you, to the one that found it. Same question: אמאי, why? והא לא ידע דנפל מיניה, maybe he didn't know that he lost it, even though they have no סימן and that's why we assumed the owner was מייאש, and that is the reason why you're allowed to keep it, but maybe by the time you found it, he still didn't know that he lost it, so it's ייאוש שלא מדעת, and the משנה says you're allowed to keep it, that shows that ייאוש שלא מדעת is considered ייאוש, so it's a קשיא on אביי who says that ייאוש שלא מדעת is not ייאוש. And the גמרא answers: התם נמי there too, אגב דיקירי, since it's heavy, מידע ידע בהו, he knows right away. These are heavy things, and it doesn't take long for him to find out that he lost it, he will automatically realize that the weight he was carrying before is not there anymore. Therefore whenever you find it, we assume that probably by the time you found it, he already found out that he lost it, and since it has no סימן he was definitely מייאש, so it's not ייאוש שלא מדעת, but it is ייאוש מדעת. Then the

גמרא says, תא שמע, come hear, I'll ask you another question. It says in the משנה: ולשונות של ארגמן, and the tongues of the purple wool, if you find them, הרי אלו שלו, they belong to him, you're allowed to keep them. And we have the same question: והאמאי, why? והא לא ידע דנפל מיניה, it's possible that he still doesn't know that he lost it, so it's only ייאוש שלא מדעת, why are you allowed to keep it? So that proves that ייאוש שלא מדעת is ייאוש, so it's a קשיא on אביי who says that ייאוש שלא מדעת is not ייאוש. And the גמרא answers: התם נמי there too, אגב דחשיבי, since it's important, since it's expensive, משמושי ממשמש בהו, a person also touches it, וכדרבי יצחק, like what רבי יצחק said. Just like רבי יצחק said concerning money that a person constantly feels around his purse to see if his money is still there, the same applies to any expensive object that a person is carrying. So this tongue of wool, since it's also expensive, so also a person will constantly feel around to see if it's still there. So definitely he found out right away that he lost it, so by the time the person found it, we assume that probably the person already knows that he lost it, and since it has no סימן, he is definitely מייאש. Then the גמרא says, תא שמע, come hear, I'll ask you another question. We

learned: המוצא מעות בבתי כנסיות ובבתי מדרשות, if someone finds money in a שול or in a ישיבה, ובכל מקום שהרבים מצויין שם, or in any place that is a public place where a lot of people are there, הרי אלו שלו, the one that found it is able to keep it, it's his, מפני שהבעלים מתיאשים, because the owner is definitely מייאש. Since it's a public place, so the owner feels that probably he'll never get it back, and it has no סימן to identify, and therefore he is מייאש, so the one that finds it is able to keep it. But here we have the same question: והא לא ידע דנפל מיניה, but he doesn't know he, it fell from him. It is true that after he will find out that he lost it he will definitely be מייאש, but how do we know that by the time the person found it, he already knew that he lost it? And if he didn't know he lost it, it is ייאוש שלא מדעת. We are sure that when he will find out, he will be מייאש, but at this point he wasn't מייאש yet, so it's ייאוש שלא מדעת, and nevertheless it says here that the one that found it is allowed to keep it, that proves that ייאוש שלא מדעת הוי ייאוש, and it's a קשיא on אביי who says לא הוי ייאוש. אמר רבי יצחק, so רבי יצחק said: אדם עשוי למשמש בכיסו בכל שעה, a person feels around his wallet every moment, constantly, so therefore as soon as he lost it, he probably realized he lost it, so by the time the other person found it, we are sure that he already knows that he lost it. Then the גמרא says, תא שמע, come hear, I'll ask you another קשיא. We

learned: מאימתי כל אדם מותרין בלקט, when is every person allowed to collect לקט? לקט is one of the מתנ מתנות עניים, one of the things that every person is supposed to give to the poor people. And לקט is when you cut your field and certain stalks of wheat fall under certain conditions, the דין is you must leave it, and the poor people come and they take it. So it belongs to the poor people. If someone else will take this לקט, he will be a גנב, he will be stealing from them because it is their property. So when is it that every person is already allowed to pick up the לקט? In other words, that the עניים are מפקיר, the עניים give up their ownership because they give up hope that they will ever find it, when is that? משיהלכו בה הנמושות, when the נמושות already passed through that field. And we learned, and we said: מאי נמושות? What does נמושות mean, who are these נמושות? אמר רבי יוחנן, so רבי יוחנן said: סבי, the old people, דאזלי אתיגרא, that they go on their stick, they lean on their sticks, so when they go through the field, they make sure that they don't leave any little bit left over. They take their stick and they go very slow, and with their stick they make sure that they find any piece of לקט. So as soon as they go through, then anybody else who finds לקט could take it, because no other poor man expects to find anything after these נמושות. So all the עניים definitely gave up hope, and therefore anybody else who find it is able to take it. ריש לקיש אמר, ריש לקיש says, לקוטי בתר לקוטי, a group after a group. And after the second group passes by, already then everyone knows that there was nothing left, so all the עניים give up hope, they don't expect to find anything. So if anybody does find something, he is allowed to keep it. And רש״י says that the word נמושות comes from the word ימוש, whether it it means touching, that they touch everything and they make sure that they feel around so much that there is nothing left. So anything that's left over after they pass, then you are allowed to keep it, because we know for sure that all the עניים, who are so to speak the owners of the לקט, gave up hope. But the question is: ואמאי, why are you allowed to take it then? נהי, it is true, דעניים דהכא מיאשי, the עניים, the poor people of this city that know that the נמושות already passed through this field, they are מיאש. But איכא עניים בדוכתא אחריתי, there are poor people in other places, דלא מיאשי, who are not מיאש. לקט belongs to all the עניים of the world. So the poor people of this city who know that the נמושות passed by, they are actually מיאש already. But the poor people from other cities who are also the owners of this לקט, they do not know yet that the נמושות passed by. It is true that after they find out that on this and this day the נמושות passed by, they will then be מיאש. But when the נמושות actually pass by, they don't know yet that the נמושות passed by, so they are not מיאש yet. And nevertheless, we say that anybody who takes the לקט after the נמושות pass by is allowed to keep it. Obviously we say because the יאוש שלא מדעת of the other עניים from different cities is valid. Since we know that when they will find out that the נמושות passed by, they will be מיאש, so we assume that subconsciously they are מיאש now too, and that יאוש is valid, and that's why you are allowed to keep it. So this is a ראיה to רבא, that יאוש שלא מדעת is considered יאוש, because according to אביי who holds that יאוש שלא מדעת is not יאוש, so you shouldn't be able to keep it, because the עניים from the other places are not actually מיאש yet. They will be מיאש definitely later on when they find out that the נמושות passed by, but now that they hadn't been מיאש yet, you shouldn't be able to keep it. But since the דין is you're allowed to collect the לקט then, that shows that the הלכה is like רבא. The גמרא says: אמרי, I'll tell you, כיון דאיכא עניים הכא, since there are poor people in this city, הנך, those עניים from the other cities, מעיקרא יאושי מיאשי, are מיאש even before. They are מיאש from the לקט of this city not because of the נמושות, they are מיאש much earlier because they know there are poor people here, ואמרי, they say: עניים דהתם מלקטי ליה, the poor people of that city will collect it. So the עניים of all other cities are מיאש לכתחלה. The only ones we have to worry about are about the עניים of this city. Now when the נמושות pass by, the עניים of this city know about it, so they are מיאש consciously, and therefore you're allowed to take it. Then the גמרא says: תא שמע, come hear, I'll ask you another קשיא. The

דין is, קציעות בדרך, if you find dried figs on the road, ואפילו בצד שדה קציעות, even if it's laying on the road which is right next to a field which is full of dried figs, the field where the owner would spread out his figs to dry. So then we know for sure that the figs that we find in the road came from this field. וכן תאנה, and also if you have a tree, הנוטה לדרך, that overhangs the road, ומצא תאנים תחתיה, and you find figs under it, so here, too, we know for sure that the figs under the tree came from that fig tree, which belongs to the person who is the owner of the tree, so both of these cases, מותרות משום גזל, you are allowed to take those dried figs, you're allowed to take the figs under the tree, and you are not עובר on the עבירה of גזל, it is not considered stealing. ופטורות מן המעשר, and they are also פטור from taking of מעשר, because the דין is from all fruit you must take of מעשר, but also the דין is if the fruit is הפקר, then you are פטור from מעשר. So, from the fruit that you find under the fig tree or the dried figs that you find next to the field, you're allowed to keep it because it is הפקר, and therefore, you do not have to take of מעשר because as we said, הפקר is פטור from מעשר. But that is only if it was figs or the dried figs. ובזיתים ובחרובים, if you find olives or carob, אסור, you are not allowed. You are not allowed to take it because it's not הפקר. So, therefore, you would be עובר on the איסור of גזל, and also it would be חייב במעשר. Now superficially, the beginning of this משנה seems to be proving רבא's opinion, and the סיפא of the משנה seems to be proving אביי's opinion. Because in the beginning of the משנה, it says that you are allowed to take those dried figs and the figs under the tree. Even though who knows if the owner knows already that he lost them by the time you found them. But we assume that when the owner will find out that some of his dried figs fell into the street or some of his figs fell off the tree, he will be מייאש. So, therefore, we say that now, even if he wasn't מייאש yet, it is considered יאוש. And therefore, you're allowed to keep it. That shows that רבא is right. On the other hand, in the סיפא of the משנה it says that if the same thing happened by בזיתים ובחרובים, by olives or by carob, you're not allowed to keep it. And it seems that the reason would be because it is יאוש שלא מדעת. Since by the time you found it, we

don't know if the owner already knows that he lost it, therefore, you're not allowed to keep it. So, the סיפא seems to be showing that אביי is right. And the גמרא explains, בשלמא רישא לאביי לא קשיא, well the רישא is no קושיא on אביי because we're able to answer that אגב דחשיבי, since they are important, they are expensive, ממשמש בהו, since dried figs are expensive, a person always checks on them. So, if he lost any, he would know right away that he lost them. So, when the person found them next to the road, so we assume that by then, already the owner knew that he lost them, and he was מייאש. So, it's not יאוש שלא מדעת, but it's יאוש מדעת. תאנה נמי, also by a fig tree, מידע ידיע דנתרא. A person knows that figs fall from the fig tree, so he's מייאש right away. Therefore, it is יאוש מדעת, and that is the reason why you're allowed to keep it. On the other hand, by olives and by carob, you're not allowed to keep, because there a person would not know beforehand that he lost them. We are not sure that by the time the person found them, the owner already knows that he lost them. So, it is יאוש שלא מדעת, and that is the reason why the משנה says that you're not allowed to keep if it's זיתים וחרובים. That fits according to אביי. אלא סיפא לרבא קשיא, but

according to רבא, there's a קושיא from the סיפא. The רישא, where it says that you're allowed to keep the תאנים and the תמרים, makes sense according to רבא because he holds יאוש שלא מדעת is יאוש. But the סיפא דקתני, where it says, ובזיתים ובחרובים אסור, that if the same thing happened with olives or with carob, you're not allowed to take, the question is why. Isn't it because it is יאוש שלא מדעת? So that proves that יאוש שלא מדעת לא הוי יאוש. So it's a קושיא on רבא, who says that יאוש שלא מדעת הוי יאוש. And the גמרא says, אמר אבהו, רבי אבהו answered, שאני זית, olives are different from other fruit, הואיל וחזותו מוכיח עליו, because one can recognize them by their appearance. ואף על גב דנתרין זיתי, even though they drop olives, the olives fall off the tree, מידע ידעי, people will know who these olives belong to. Because דוכתא דאיניש איניש הוא, the place of a man is like the man himself. So therefore, these olives have a סימן. So the person is not מייאש. So the reason why by olives you're not allowed to take them, because the person is not מייאש from the olives, not because it's יאוש שלא מדעת. It is not יאוש to begin with, because it has a סימן. And then the גמרא asks, אי הכי, if so, אפילו רישא נמי, also in the beginning of the משנה, the דין should be the same. Why is the דין by the figs that fall off the tree that you are allowed to keep them? Why don't we say that you could recognize from the figs from which tree it fell, and you will know who it belongs to? So the person is not מייאש. The

גמרא answers, אמר רב פפא And since everyone knows that figs fall from the fig tree, so the owner knows beforehand that he's going to lose some, and since he knows they're going to get dirty too, so he is מתייאש before it falls yet, he is already מתייאש from everything that'll fall, and that is the reason why if someone finds the תאנים, he's allowed to keep. It is כדאי to know that the רא"ש, when he brings our גמרא, it seems that he had a little bit a different גירסא. In our גמרא, when the גמרא asked a קושיא from עיגולי דבילה וככרות של נחתום, from the round cakes of figs of dried figs and the bread of the baker, and the גמרא asked, how come הרי אלו שלו? Why are they his? According to אביי that holds יאוש שלא מדעת לא הוי יאוש, since we don't know that by the time he found it, the person already knew that he lost it, so how come you're allowed to keep it? And the גמרא answered, אגב דיקירי מידע ידעי בהו, since they are heavy, so then the person definitely knows right away that he lost it, so we are sure that by the time the other person found it, the original person who lost it already knew that he lost it. The רא"ש,

when he brings this גמרא, he says that the reason why by עיגולי דבילה, the דין is that you're allowed to keep it because it is food, so a person always checks on his food to see if it's there, and that is the reason why we know for sure that the owner already knew that he lost it. In our גמרא, it seems that the reason is because it's heavy, so a person knows that he lost it, but the רא"ש says because it is food. But the בית יוסף in his פירוש on the טור, in סימן רס"ב חושן משפט, he says that it seems that the רא"ש learned different פשט in the גמרא. We learned that when the גמרא says the reason why עיגולי דבילה you're allowed to keep, אגב דיקירי, we said it meant because it is heavy. It seems that the רא"ש learned that יקירי here also means expensive, and that's what he learned פשט in the גמרא, that when the גמרא said that you're allowed to keep עיגולי דבילה because it's יקירי, it means because it's expensive. Why is it expensive? Because it's food. And that is the reason why you're allowed to keep it. So, he learned different פשט in the גמרא, but did not have a different גירסא in the גמרא. But the מהרש"א in

our גמרא says that we must say that the רא"ש did have a different גירסא in the גמרא, because this is not the only difference that the רא"ש has that we have in our גמרא. The רא"ש mentioned something that we do not have in our גמרא at all. The רא"ש says that the reason why גיזי צמר ואניצי פשתן you're allowed to keep is אגב דיקריו מידע ידע, because it is expensive, people will know that they lost it. The way we have the גירסא in the גמרא, the גמרא doesn't ask the question from גיזי צמר ואניצי פשתן at all. But from the רא"ש is משמע that he had a גירסא in the גמרא that the גמרא did ask a question from גיזי צמר ואניצי פשתן. So, the מהרש"א says that it's משמע that there was another piece in the גמרא that the רא"ש was גורס. When we have the תירוץ in the גמרא on עיגולי דבילה וככרות של נחתום, אגב דיקירי מידע ידעי בהו, it seems that the רא"ש had those words, that אגב דיקירי מידע ידעי בהו, as a תירוץ on גיזי צמר ואניצי פשתן. But the תירוץ that the גמרא said on עיגולי דבילה וככרות של נחתום, there he had a גירסא that the גמרא answered since it is food, therefore מידע ידע. So, it is not like the בית יוסף says, that's what the מהרש"א says, that he learned different פשט in our גמרא, he had the same גירסא, that the גמרא's תירוץ on עיגולי דבילה וככרות של נחתום was אגב דיקירי מידע ידעי בהו, he just learned that the פשט in יקירי is because it is food. The מהרש"א says he must have had a גירסא differently, that the גמרא's קושיא was from עיגולי דבילה, and the גמרא's תירוץ on that was מידי דמיכלא, because it's food, and this תירוץ of the גמרא, אגב דיקירי, was a תירוץ on the גמרא's קושיא from גיזי צמר ואניצי פשתן.

Another ענין which is worthwhile to mention in this גמרא is that נימוקי יוסף on the beginning of the גמרא, where the גמרא asked a קושיא on רבי יצחק who said that when are you allowed to keep פירות מפוזרין, if it's a קב בארבע אמות, and the גמרא asked if it is דרך נפילה, if you could see that it fell down accidentally, then אפילו טובא נמי, you should be able to keep even if it's a lot, and the גמרא answered that we're talking במכנשתא דבי דרי, and that is the reason why only if it's a קב בארבע אמות, you're allowed to keep. But the נימוקי יוסף says that לכאורה, how could the גמרא ask the קושיא that if it is דרך נפילה, if you see that it fell, you're allowed to keep even if it was a lot, since we say later that there's a מחלוקת between אביי and רבא concerning יאוש שלא מדעת, and according to אביי, יאוש שלא מדעת is לא הוי יאוש, and the truth is that at the end we פסקen like like אביי, that ייאוש שלא מדעת לא הוי ייאוש. So how could the גמרא say that if you could tell that it fell accidentally, you should be able to keep it? But how do we know that he, the person, knows already that he lost it? Maybe by the time you find it, the person doesn't know yet that he lost it, so you shouldn't be able to keep it. And as we see טאקע later in the גמרא, the גמרא asks a קשיא from this משנה on אביי who says ייאוש שלא מדעת לא הוי ייאוש. And the only תירץ the גמרא gave was that it's במכנשתא דבי דרא. But if it wouldn't be במכנשתא דבי דרא, you טאקע couldn't keep it. So how could the גמרא here say with a פשטות that if you could tell that it was lost, you're allowed to keep it? Before the גמרא answered במכנשתא דבי דרא, even if it wouldn't be במכנשתא דבי דרא it seems from the גמרא's קשיא then you should be able to keep it. The גמרא's תירץ was במכנשתא דבי דרא, but what is the גמרא's קשיא לכתחילה? According to אביי you shouldn't be able to keep it. And the נימוקי יוסף answers that באמת this קשיא goes also according to אביי. 'אי אביי' holds ייאוש שלא מדעת לא הוי ייאוש, since the קשיא was אפילו טובא נמי, even if it's more than a קב בארבע אמות you should be able to keep it. More than a קב בארבע אמות is worth a lot of money, it is חשוב. And the גמרא says later on that anything which is חשוב, a person checks on it from time to time. So therefore, the גמרא assumes here that probably the person checked on it more than once, and probably by the time the other person found it, the one that lost it already knows that he lost it. Also he says, since it is heavy, and the גמרא says later on when it's heavy he right away realizes that he lost it, so that's why the גמרא feels here that even according to אביי the דין would be that you're allowed to keep it, because the person definitely realized that he lost it because it's heavy. But the מהר״ם שיף asks a קשיא: If so, what was the גמרא's קשיא later on on אביי from this case of פירות מפוזרין? The גמרא asks that how come is the דין that you're allowed to keep פירות מפוזרין according to אביי that holds ייאוש שלא מדעת לא הוי ייאוש? Why don't we think maybe the person that lost it doesn't know yet that he lost it? And the only תירץ the גמרא found according to אביי was במכנשתא דבי דרא עסקינן. But according to what the נימוקי יוסף says here, that even אביי is מודה in the case of פירות מפוזרין because it is heavy, even if it's not במכנשתא דבי דרא the דין is you're allowed to keep it even according to אביי, so why did the גמרא later on have to say according to אביי במכנשתא דבי דרא עסקינן? And the מהר״ם שיף answers that באמת the בית יוסף on the טור in חושן משפט סימן רס״ב answers this question. Because the טור there brings from the רמב״ם that the רמב״ם says that מצא פירות מפוזרין דרך הנחה לא יגע בהן. If you find scattered פירות, and it looks as if someone put it down, do not touch it. דרך נפילתם, if it looks as if it was lost, הרי אלו שלו, you could keep it. So the טור writes that לא נהירא, that he doesn't think the רמב״ם is right. Because from our גמרא it seems that when are you allowed to keep פירות מפוזרין? Only if it's במכנשתא דבי דרא. According to אביי who holds that ייאוש שלא מדעת לא הוי ייאוש, the only time you're allowed to keep פירות מפוזרין is only במכנשתא דבי דרא, that's what the גמרא says. Because when the גמרא asks the קשיא on אביי from פירות מפוזרין, and the גמרא answers that when is הרי אלו שלו, only במכנשתא דבי דרא, is משמע that if it's not במכנשתא דבי דרא, then you shouldn't be able to keep it according to אביי. Which is the same קשיא as the מהר״ם שיף asked on the נימוקי יוסף. That is true, the טור says, that if you know for sure that it was lost and the person already knows that he lost it, then you would be able to keep it even if it was not במכנשתא דבי דרא. But if you do not know for sure that the person knows already that he lost it by the time you found it, you're not allowed to keep it according to אביי, it comes out in the גמרא. And the only way you are allowed to is במכנשתא דבי דרא, because then it is אבידה מדעת, because then the person knows that he left it there. So how could the רמב״ם say that when you see פירות מפוזרין and it looks as if they fell down accidentally, you are allowed to keep it, and he doesn't give any conditions that it is במכנשתא דבי דרא? So the בית יוסף there says בשם חכם אחד that באמת the רמב״ם is right, because in the גמרא's קשיא, when the גמרא asks here in the beginning of the גמרא, אי דרך נפילה אפילו טובא נמי, that if you could tell that it fell down, even if it would be more than a קב בארבע אמות you should be able to keep it. So from here we see that the גמרא accepts according to everybody that you're allowed to keep if it's more than a קב בארבע אמות, even if it's not במכנשתא דבי דרא. So from here we see that the רמב״ם is right, which is like the נימוקי יוסף said. But the only question is, doesn't the גמרא say later on that according to אביי the only time you're allowed to keep it is if if it was מכנשתא דבי דרי. So the בית יוסף says that that תירוץ that the גמרא gave was only in the beginning, before the גמרא asked the other קושיות. But after the גמרא asked the קושיות from the other parts of the משנה, and one of the תירוצים in the גמרא later was that if it's heavy, then the person realizes right away that he lost it, and it's not considered יאוש שלא מדעת, so after we answer that תירוץ, we could go back already to the קשיא of פירות מפוזרין, and there too we could answer that the reason you're allowed to keep the פירות מפוזרין is because the person realizes that he lost it because it's heavy. And you do not need the תירוץ of מכנשתא דבי דרי. And that is the reason why the רמב״ם פסקנ'ס that if it's דרך נפילה you're allowed to keep it, even if it's not מכנשתא דבי דרי. And that is the reason the גמרא asks לכתחילה, אפילו טובא נמי, that if you could tell it fell down you should be able to keep it, even if it's more than קב בארבע אמות. And that קשיא goes even according to אביי, because the גמרא knew already that the מסקנא later will be that if it's heavy, the person definitely knows he lost it, and even if you hold יאוש שלא מדעת, you're allowed to keep it, that's why the גמרא felt that אפילו טובא נמי. But this will not fit with the תוספות that we mentioned earlier. We mentioned earlier that תוספות says that why didn't רבי יצחק say לכתחילה that the משנה is talking by a case of קב בארבע אמות? Because he knew that we'd have to say it's מכנשתא דבי דרי. Because since we פסקן like אביי that יאוש שלא מדעת לא הוי יאוש, so the only פשט we could have in the משנה why you're allowed to keep פירות מפוזרין is because of מכנשתא דבי דרי, that's why he said it is speaking by a קב בארבע אמות. But now that we're saying that the מסקנא of the גמרא is that since it's heavy you're allowed to keep it, and you do not have to say it's מכנשתא דבי דרי, so we're back to the question: why did he לכתחילה say that it's talking by a קב בארבע אמות that we have to say it is speaking מכנשתא דבי דרי? So it seems then that it would be a מחלוקת between the נימוקי יוסף and תוספות. According to the נימוקי יוסף, according to אביי, you do not have to say that it's speaking מכנשתא דבי דרי, and whenever you find פירות מפוזרין you're allowed to keep it. But

according to תוספות, the only time you're allowed to keep פירות מפוזרין למסקנא of the גמרא according to אביי, that we פסקן like him that יאוש שלא מדעת לא הוי יאוש, is only if it is מכנשתא דבי דרי. But then, according to the שיטה of the נימוקי יוסף and the other ראשונים, that according to אביי למסקנא you're allowed to keep it even if it's not מכנשתא דבי דרי, so what was the reason לכתחילה for רבי יצחק to say that the משנה is talking by a קב בארבע אמות and we'll have to say it's מכנשתא דבי דרי? Why didn't he say לכתחילה that the משנה is talking by a regular case, and טאקע not by a קב בארבע אמות, and you're allowed to always keep it if it is דרך נפילה? So there are other תירוצים in the ראשונים. One of the תירוצים is that he's trying to tell us a חידוש, that not only are we talking by a regular אבידה, but we're also talking by an אבידה מדעת. We're also talking in a case where the person knows that he left it, and nevertheless you're allowed to keep it. And that is only מכנשתא דבי דרי, and that would only be if it would be קב בארבע אמות. So he's not saying that the משנה is only talking by a קב בארבע אמות, he's saying that there is a case of the משנה which would have to be only by a קב בארבע אמות. In the case of מכנשתא דבי דרי, which is an אבידה מדעת, because a person knows he left it there, so concerning that case, when would we say הרי אלו שלו? Only if it would be קב בארבע אמות, because then we assume the person wouldn't bother himself to come back and take it, but if it would be more than a קב בארבע אמות, then you wouldn't be able to keep it, because we assume the owner is going to come back for it, and therefore it is not הרי אלו שלו.