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The Mishnah in Bava Metzia, perek 1:3 says:

If one was riding on an animal and saw a found item, and said to another person who was walking beside him: Give it to me, if the pedestrian took it and said: I have acquired it for myself, he has acquired it by means of lifting it, even though he did not see it first. But if, after giving it to the one riding the animal, he said: I acquired it for myself at the outset, he has said nothing and the rider keeps the item.

The Gemara elaborates on this Mishnah and says:

[...] Similarly, since everyone has equal rights to an ownerless item that is found, one person cannot deprive all others of that right on behalf of another person

The person riding on an animal clearly says "give it to me", so the pedestrian next to him is ought to know that the rider intends to acquire the object. Why then can the pedestrian get ownership of the object if he says "I acquired it for myself"? That's not completely fair, isn't it? If I am walking on the street and see something nice on the ground, I ask my friend "do you see that pen? Could you please pick it up for me?". Then, according to the Mishnah, my friend can keep the object if he says that he acquired it. However, I found it, I told my friend about it.

Why isn't looking at something, e.g. finding something on the ground, make me acquiring it?

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  • I’m confused about your question. Lifting up the object with the intent to acquire it, works. Telling someone to pick it up for you, only works if a) he agrees to do that for you and b) he’s not disadvantaging anyone else in the process. The wording in your question is a bit confusing as to what exactly is bothering you
    – Chatzkel
    Commented Nov 2, 2022 at 0:28
  • I edited my question.
    – Shmuel
    Commented Nov 2, 2022 at 12:47

1 Answer 1

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I am assuming, although you did not mention it specifically, that you are asking based on the Gemara Bava Metzia 118A that mentions looking at an ownerless item as a way to acquire it according to one opinion;

אמר רבה הבטה בהפקר תנאי היא

Rabba says: The issue of whether, in the case of ownerless property, viewing effects acquisition of it is a dispute between tanna’im

However, this Gemara would be in contradiction to many other places that state explicitly that it does not work. For example, the Mishna Bava Metzia 10A that says although one saw an ownerless item, and even fell on it, it does not work.

ראה את המציאה ונפל עליה ובא אחר והחזיק בה זה שהחזיק בה זכה בה:

MISHNA: If one saw a found item and fell upon it, intending to thereby acquire it, but did not employ one of the formal modes of acquisition, and then another came and seized it, the one who seized it acquired it because he employed one of the formal modes of acquisition.

Tosfos in Bava Metzia 2A seems to imply these questions, and qualifies that looking at an item itself would not be sufficient by itself, but some minimal action is required as well;

דבראיה בעלמא לא קני - והא דאמרי' בפרק הבית והעלייה (לקמן בבא מציעא דף קיח. ושם) הבטה בהפקר קני היינו שעשה מעשה כל דהו כגון שגדר גדר קטן:

[H]e does not acquire [it] through sight. The Mishna teaches us that by merely seeing a lost object, one does not acquire it. There seems to be a contradiction to this ruling from a Gemara later on 118a. The Gemara there quotes a Mishna in Shekalim which cites a dispute about whether those who guard the growing barley in the Shemittah year must be paid for their labor or not. The first Tanna holds that they must be paid. Otherwise, the barley they are guarding would belong to them and the barley for the Omer offering must belong to the public, not to an individual. R’ Yose holds that the guards can work for free if they so desire. The Gemara explains that the first Tanna holds that “guarding” the ownerless barley is a way of acquiring it. If the guards are not paid from public funds, they become the legal owners and the Omer offering must be owned by the public. R’ Yose holds that “guarding” the ownerless barley is not an acceptable method of acquiring it. Thus, even if the guards are not paid, the barley does not become their property and may be used for the Omer offering. The Gemara continues to suggest other ways of explaining the dispute, but they all focus around whether “guarding” the growing barley is an acceptable method of acquisition. The Gemara uses the expression הבטה which literally means looking or watching. Tosfos understands that this is the same as ראיה - seeing, of our Gemara. Thus, we have what appears to be a contradiction. That which [the Gemara] says in Perek Habayis Vehaliyah (below 118a): “watching” an ownerless item is an effective act of acquisition, that is when he did some minimal action, such as constructing a small fence around the barley. Even though he did nothing at all to the barley, “watching” or “guarding” it is an effective act of acquisition, but by merely seeing a lost object and taking no action whatsoever, one does not acquire the object (Sefaria)

Based on the above, it is apparent that looking at an object and telling your friend to pick it up is not enough to make it yours.

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  • Yes, that's what I've asked for. Thank you! Any suggestions where I can read more about "viewing effects acquisition of it is a dispute between tanna’im"?
    – Shmuel
    Commented Nov 2, 2022 at 15:41
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    It’s a sugya on 118A-B. The Rishonim there and on 2A discuss it
    – Chatzkel
    Commented Nov 2, 2022 at 15:54
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    Rashash on Tosfos 2A says that Rashi makes a different differentiation sefaria.org/Rashash_on_Bava_Metzia.2a.5?lang=bi
    – Chatzkel
    Commented Nov 2, 2022 at 15:55
  • SA 273:11 paskens that it doesn’t work sefaria.org/Shulchan_Arukh%2C_Choshen_Mishpat.273.12?lang=bi
    – Chatzkel
    Commented Nov 2, 2022 at 15:56
  • Thanks for the research. I also saw a Rambam in Mishneh Torah, Vows 2:19. +1
    – Shmuel
    Commented Nov 2, 2022 at 16:00

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