Siman 339

One may not ride upon an animal, and it is forbidden to make any use of living creatures, even the sides of living creatures, but the sides of sides are permitted, and these laws have already been explained in siman 305 and in siman 336. And there it was explained in section 15 that if one ascended upon the animal, he must descend immediately, and in this it is not similar to a tree where they penalized him to remain there until it grows dark, for regarding an animal there is a Torah prohibition of the resting of his animal, which is not the case with a tree; see there. And at the end of siman 336 we explained that with a sturdy tree it is permitted to lean, and with a weak tree it is forbidden, and this is according to the Yerushalmi, chapter 5 of Beitzah (halacha 2); see there.

But according to our version of the Yerushalmi there, a different intention appears: that it does not refer to the tree, but rather to the person, to distinguish between when he is weak and when he is strong. For a healthy person, when he leans on an animal or on a tree, he leans only slightly and stands on his own strength, and this is not called "using animals" or "using a tree." This is not the case for a weak person; his entire leaning is upon the animal and the tree—and it is forbidden. And even a healthy person is only permitted when he leans slightly, and not heavily with all his strength.

This is the wording of the Yerushalmi: "There is a Tanna who teaches: one may lean on an animal, and there is a Tanna who teaches: one may not lean. Rav Hisda said: The one who says one may lean—is referring to a healthy person; the one who says one may not lean—is referring to a weak person." And there is another resolution there: "The one who says one may lean—refers to one who supports himself slightly, and the one who says one may not lean—refers to one who casts his weight," meaning with a heavy leaning, and both refer to a healthy person. And both resolutions are true in halacha, and therefore a weak person is completely forbidden to lean on an animal, and the same law applies to a tree. And a healthy person is permitted when leaning slightly and not with all his strength, and such is the halacha. And also in our Shas in Chagigah (16a) it is implied explicitly that there is no prohibition of using animals except when one uses them with all his strength, see there, and the poskim did not mention this at all.

One may not swim on the surface of the water, a decree lest one make a swimming-vessel to learn how to swim. And if the river is not in a courtyard but is like typical rivers which are a karmelit, there is an additional prohibition in this, lest one splash water with his feet beyond four amot (Rashi 40b, starting with "And even," see there). And we have already written in siman 326 that one who washes in a river must be careful of this, and that for this reason it is our custom to prohibit washing in a river on Shabbat, see there. They did not prohibit swimming in a vessel like a bathtub if it stands in a courtyard, for there is no concern there of splashing water beyond four amot. But if it does not stand in a courtyard—it is prohibited, due to this concern. Similarly, a pool that is in a courtyard has the law of a bathtub, because it is not similar to a river when it has a rim around it, meaning that even if the water is displaced, the rim returns it to its place, and it is not similar to a river where the water is pushed outward, and it is similar to a vessel. And they did not decree in this lest one make a swimming-vessel, for in a vessel this is not applicable. Therefore, if the pool does not have a rim around it but is level with the ground outside of it—it is similar to a river, because when the water is displaced it goes out beyond the pool as in a river, and it is prohibited to swim in it just as in a river.

Our teacher, the Beit Yosef, wrote in section 6: "It is forbidden for a person to float an object in water to move it away from him or to bring it toward him; therefore, it is forbidden to spread apart wood chips that are on the surface of the water to this side and that side in order to clean the water so that it will be pleasant." Thus far his words. For just as it is forbidden to swim with one's body—so too it is forbidden to float an object in the water. Therefore, with a vessel—it is permitted, for floating is also permitted with a vessel as has been explained. Now, the source of this law is from the Mordechai, chapter 5 of Beitzah, and its source is from the Yerushalmi there. They raised a difficulty against this, for in the conclusion of the Yerushalmi it concludes with permission, that if it is for drinking—it is permitted, like that which "a person may break a barrel to eat dried figs from it" (so the Pnei Moshe challenged there in the Mareh HaPanim, see there). And it is not a difficulty at all, for the Yerushalmi does not contradict the previous prohibition, for if he does not wish to drink now—it is forbidden to spread them apart, and when it is his desire to drink—it is permitted, see there. Our teacher, the Beit Yosef, was not dealing with a case where he desires to drink, for he did not mention this (and such is the intention of the Mordechai and the Hagahot Ashri who cited this, that he does not desire to drink now but rather wants to clean them for a later time; and on Shabbat there is also a prohibition of borer in this, and examine this closely).

It has already been explained in siman 248 regarding the laws of boarding a ship prior to Shabbat, but on Shabbat—it is obvious that it is forbidden to board a ship for the reasons explained there. However, when the ship is standing near the shore and is resting on the floor of the sea or the river and is not sailing at all—it is permitted to board it, for this is like entering a house. And similarly, even if it is floating on the surface of the water, provided that it is tied with a strong knot to a pillar or to a bridge in the manner of ships standing at the port—it is also permitted to board it, for it is not fit to sail as long as it is tied. And know that in the Gemara (139b) there is a permission for a tzurba merabanan to board a ship to sleep there while the ship is resting on the ground, even though he knows that the non-Jew will come after an hour and sail with it to the other side, because it is an evasion regarding a rabbinic prohibition, and a tzurba merabanan will not come to do it ab initio, see there; but nowadays we do not have the status of tzurba merabanan and it is forbidden. And there are those who permit crossing in a ship on Shabbat for the sake of a great loss, and there are those who hesitate and forbid (see Magen Avraham subsection 12, and see there subsection 13 who requires two knots, and I do not know why). And by means of some evasion—it is obviously permitted, and also one who relies on the permitting view has a tree to hang upon, and similarly for a passing mitzvah there are those who wish to be lenient. And a ferry, which is called a "param," its law is like a ship (see She'elat Yaavetz subsection 8).

We learned in a Mishnah in Beitzah (36b): One may not clap, nor slap, nor dance for joy and song. "Clapping" refers to striking palm against palm, and "slapping" refers to striking the palm against the thigh, and "dancing" with the feet. And the reason: since these actions are performed at the time when one sings with musical instruments, therefore, just as they decreed against musical instruments on Shabbat and Yom Tov lest one repair a musical instrument, so too they decreed against these matters because they also pertain to musical instruments. And even to strike with a finger on the ground or on a board, or one finger against another finger in the manner of singers, or to rattle a nut for a child in the manner of song, or to play for him with a bell so that he will be silent—all this and the like is forbidden, lest one repair a musical instrument. And to slap in an unusual manner is permitted; thus the sages decreed.

Our teacher, the Rema, wrote in section 3: "And as for the fact that they clap and dance nowadays and we do not protest against them, it is because it is better that they be unintentional [sinners] and not be intentional [sinners]. And some say that in this time—everything is permitted, for we are not experts in the making of musical instruments, and there is no reason to decree lest one repair a musical instrument, for it is an uncommon matter; and it is possible that based on this they practiced leniency in everything." Thus far his words. And these matters are astonishing: first, for the tying of violin strings is very common, as is winding them upon the pegs, which is when they wind the peg until the string returns to being set correctly. And in both matters there is a liability for a sin offering: due to tying and due to repairing a vessel, as Rashi explained in Eruvin (103a, s.v. 'af' and s.v. 'meshalshel', see there). Furthermore, Heaven forbid that a rabbinic prohibition should be nullified because of such reasons.

And in my humble opinion, a simple reason appears: that our clapping and dancing were never forbidden, for in the time of the sages, this was at a time when they would play musical instruments, and they would clap and slap and dance according to the order of the song, and so it implies in the Yerushalmi. But now, this is not at all at a time when they play musical instruments, but rather at a time when they sing songs of joy by mouth, they clap hand to hand a mere clapping and not according to the orders of the song. And that slapping of the hand upon the thigh is not known to us at all, and also the dancing at a time of joy is not like their dancing in the order of the dances of women, but rather they dance without orders, and there is no fence here of "lest he repair a musical instrument," for they have no connection to one another at all, and it was not regarding this that the sages decreed. And therefore, also on Simchat Torah when they dance and clap before the Sefer Torah, and some say the reason is that for the honor of the Torah it is permitted to dance (Magen Avraham, subsection 1), and it is difficult in my eyes to nullify a rabbinic shevut because of this. But according to what we have written, it works out well, for this is not the dancing and clapping that the sages forbade, and many times we have seen that great men clap with their hands at a time of joy. (And with this, the snapping of the finger on the night of Yom Kippur by the Kohen Gadol also works out well, even if we do not say it is due to the reason that there is no shevut in the Mikdash, and also it is not the sound of a musical instrument as the Magen Avraham wrote in subsection 2.)

One does not judge on Shabbat, and the Rambam wrote in chapter 24: "One does not punish on Shabbat, even though the punishment is a positive commandment—it does not override Shabbat. How so: If one became liable for death or lashes—one does not lash, as it is said: 'You shall not kindle fire,' and the same law applies to other punishments." Thus far his words. For "You shall not kindle" we expound regarding the burning of a priest's daughter, that it is forbidden on Shabbat (Sanhedrin 35b). And in the Mekhilta on Vayakhel it is brought: "'You shall not kindle fire'—burning was included in the general rule and was singled out to teach: just as burning, which is one of the deaths administered by beit din, does not override the Shabbat, so too all other deaths administered by beit din shall not override the Shabbat." Thus far its words. And from this we only knew of death, but the Rambam holds that even with lashes there is a desecration of Shabbat, for certainly with thirty-nine lashes he will cause a wound (see Magen Avraham, subsection 3). And the reason that one does not judge monetary cases, in Beitzah there they said the reason is that we decree lest he write the arguments and the verdict. However, in the Yerushalmi Sanhedrin (chapter 4, halacha 6) it is brought: "From here we learn for batei din that they should not judge on Shabbat. What is the reason: It is said here (ibid.) 'in all your dwellings,' and it is said elsewhere 'And these things shall be for you a statute of judgment throughout your generations in all your dwellings'; just as elsewhere the verse speaks of a beit din, so too here the verse speaks of a beit din." See there. and even though he learns there regarding death administered by beit din, nevertheless from this gezerah shavah we can learn regarding every type of judgment, for just as one does not burn on Shabbat, so too all 'statutes of judgment.' Therefore, the Sanhedrin also did not sit on Shabbat in the Lishkat HaGazit as on weekdays, but rather in the Cheil, as is explained in the Tosefta, and we have already brought this in Choshen Mishpat siman 5, see there. Therefore, it is forbidden to establish a place for chalitzah on Shabbat, for this is like sitting for judgment (Magen Avraham, ibid.).

And so too it is certainly forbidden to send a warning on Shabbat, for this is like engaging in adjudication, and all the more so it is forbidden to receive testimony on Shabbat, except in the case of a mitzvah, such as for an agunah where they would not be able to receive it after Shabbat and the like, for regarding any matter of a mitzvah, speech was permitted on Shabbat. And so too it is not proper for a litigant to arrange his arguments for himself on Shabbat. However, a judge who had a Torah case before him on the eve of Shabbat and did not complete it, and deliberates on the matter of the law on Shabbat – it is permitted, for this is the study of Torah, and just as he deliberates on a law of a ruling of forbidden and permitted, so too he deliberates on a law from the laws of monetary matters. But the beit din shall not sit in their place where they sit on a weekday and deliberate, for this appears like adjudication. Our teacher, the Rema, wrote that therefore it is forbidden to seize or to imprison (with the permission of the government) one who has become liable for some punishment so that he should not flee, and all the more so it is forbidden to lash him, and if he flees it is nothing to us. Thus far his words. However, regarding a matter of transgression, they may guard him in a house so that he does not flee, and so too all public needs may be announced on Shabbat, as I have written in siman 306.

And the sages forbade betrothing a woman on Shabbat, and all the more so to take her in marriage, and likewise it is forbidden to perform chalitzah or yibbum on Shabbat. And they said in the Gemara there that the reason is: lest he write; see there. And I wonder, why did they not say the reason is that it is forbidden due to the law of acquisition, for behold, the woman is acquired by her husband through erusin and marriage, and likewise the yevamah to the yavam. And it appears to me that because the Rambam in chapter 23, law 12, wrote: "And likewise it is forbidden to buy and to sell, and to hire and to lease, a decree lest he write," thus far his words, and if so, why should the Shas state the reason of acquisition, since in this itself there is the decree of the prohibition just as in acquisition. (However, I do not understand the words of the Rambam, for at the beginning of the chapter Sho'el they stated the reason "lest he write" regarding a loan and its claim, see there, but the essence of buying and selling is a great shevut in its own right, and not due to a decree, as is explained in Nehemiah, and as I wrote at the beginning of siman 243 that it is literally like a Torah law, for if not so, Shabbat would be like a weekday, and in the name of the Ramban we brought this, see there. And it appears to me that the Rambam also did not intend this precisely, but rather he did not wish to be lengthy, and wrote some reason, and delve into it.)

And know that in the Gemara there it asks regarding that which they do not betroth: But is he not performing a mitzvah? And it answers: It is only necessary [to state this] where he has a wife and children, see there. And Rashi explained that it does not ask regarding the essence of the law, for certainly even when he does not have a wife and children it is forbidden to betroth, but rather it asks regarding the wording of the Mishnah which calls it "optional," see there. And so it is clarified from the words of the Rif, the Rambam, the Rosh, and the Tur, who did not write that when he does not have a wife and children it is permitted to betroth. However, Rabbeinu Tam, of blessed memory, in Tosafot there, explained that it asks regarding the essence of the law, for certainly when he does not have a wife and children, which is a great mitzvah and constitutes "matters of Heaven," there is no reason to forbid betrothing on Shabbat; and it answers that it deals with one who has a wife and children, but when he does not—it is truly permitted. And even according to this, there is reason to doubt regarding marriage if it is permitted, meaning entering the chuppah, because this is a complete kinyan as he acquires her for her handiwork, for her lost objects, and to inherit her, and it is not similar to kiddushin. Or perhaps even this is permitted, for behold kiddushin is also a kinyan as he acquires her as a wife and nevertheless they permitted it, and therefore it is possible to say that marriage is also thus (see there in Tosafot and in the Ran).

And behold, for the halakha, we certainly hold like the majority of the poskim, and even Rabbeinu Tam himself wrote in a responsum that one should not betroth except in a case of great necessity, and even if he betrothed her while it was still day—it is forbidden to bring her into the huppah on Shabbat (Ran ibid.). Nevertheless, our teacher, the Rema, wrote, and this is his wording: "And there are those who permit betrothing where he does not have a wife and children, and it is possible that the same law applies that entering the huppah is permitted. And even though we do not hold accordingly, nevertheless we rely on this in a time of necessity because human dignity is great, as they are accustomed that sometimes they were unable to reach an agreement regarding the dowry on Friday until nightfall, so they perform the huppah and the kiddushin on Friday night, since they have already prepared for the meal and for the marriage, and it would be a shame for the bride and for the groom if he does not enter then. Nevertheless, ab initio one must be careful not to come to this" Thus far his words. And with our teacher, the Rema, himself there was such an incident in Krakow when he was the Av Beit Din there, with an orphan girl where it was drawn out until two hours into the night and he himself arranged the kiddushin and the huppah as he wrote in a responsum, and the whole province murmured against him, and he elaborated there to explain that human dignity is great as is the pain of a groom and bride. And we have heard that from this incident they made an enactment in Krakow not to perform any huppah on Friday afternoon, and it is a fine enactment, for many failings occur through this, and they come to the desecration of Shabbat, and specifically in the winter days when the days are short, and in every place where it is possible to institute this, their reward is great from Heaven. And in any case, even when it is impossible to institute this, the obligation is upon all who fear G-d to see to advancing the huppah as much as possible.

Our teacher, the Beit Yosef, wrote in section 5: "One who marries a widow should not have the first intercourse with her on either Shabbat or Yom Tov." Thus far his words, and this is from the Yerushalmi. And the explanation of the matter: Behold, in Even HaEzer siman 64 it was explained that a virgin has a chuppah but a woman who was previously married does not, see there; and the reason is that he holds that chuppah is the veil, and that which they lead under the chuppah with the celebrations of groom and bride, and this is only for a virgin. According to this, for a widow there is no acquisition of chuppah, and the acquisition is the intercourse, and therefore it is forbidden on Shabbat. And they explained that which is found in the Yerushalmi at the beginning of Ketubot: "Those who marry widows need to marry them while it is still day," meaning to have intercourse with her, for this is because she has no chuppah. But there are those who disagree and hold that even for a woman who was previously married there is a chuppah, for chuppah is defined as the seclusion fit for intercourse, and this is equal whether for a virgin or for a widow or a divorcee (the Gra, subsection 16, and there in Even HaEzer, see there). And the Yerushalmi that says: "Those who marry widows," its intention is because a virgin is anyway forbidden to have the first intercourse on Shabbat, for such is the system of the Yerushalmi, and the intention of the Yerushalmi is the seclusion fit for intercourse. And even for a virgin it is so for us, for we hold that it is permitted to have the first intercourse with a virgin on Shabbat. And we have already explained this in Even HaEzer there, and there in siman 55 we explained at length what chuppah is, and in section 14 there we explained that the poskim do not disagree at all, see there, and there in siman 64 section 17 we explained that even regarding a widow there is no dispute. And if there was seclusion fit for intercourse while it was still day—he may according to the law have intercourse with her on Shabbat, and even for a virgin there are those who require specifically seclusion fit for intercourse while it is still day (Magen Avraham subsection 11 in the name of Maharil). However, regarding a widow alone, the Maharil wrote the law that there is danger in the matter to have the first intercourse with her on Shabbat (ibid.), and in Even HaEzer there we brought that there was such an incident and she died immediately, see there, and therefore we are accustomed to warn about this very much. And this is only for a widow and not for a divorcee, for with a divorcee, if there was seclusion fit for intercourse while it was still day—he may have intercourse with her on Shabbat. And the seclusion while it is still day requires that there be no other person in the room (ibid.), and if she was not fit for intercourse while it was still day, such as if she was impure—she is forbidden to immerse on Shabbat, for it is forbidden for him to have intercourse with her on Shabbat, since previously he did not acquire her at all, because there was no seclusion fit for intercourse (ibid., and he disagrees with the Chelkat Mechokek, and also the Beit Shmuel there disagreed with the Chelkat Mechokek, see there).

It is a simple matter that it is forbidden to divorce on Shabbat, even if the get was written while it was still day and there is no disqualification of an antedated document, such as through a messenger or where the name of the day is not written in it but rather the name of the month, which is also valid—nevertheless, it is forbidden to divorce just as it is forbidden to betroth, for through the divorce she removes herself from his domain and it is like an acquisition. However, regarding a get of a shekhiv mera whose condition has worsened and it appears that he will die immediately and she will remain bound for chalitzah or yibbum, it is stated in Gittin (77b) that the sages permitted him to transfer ownership to her of the room where the get is placed, and she shall perform an act of chazakah in it by opening and locking, and it is found that he gave the get into her domain; see there.

The Rambam wrote in chapter 23, law 9: "One may not set aside terumot and ma'asrot on Shabbat, because it appears as if he is fixing something that was not fixed." Thus far his words. And even to give them to a kohen on that same day is forbidden (Ra'avad). And even during bein hashemashot it is forbidden to tithe that which is certainly untithed, but one may tithe demai during bein hashemashot, as it does not resemble fixing, for the majority of the common people do tithe (Rashi 34a). Nevertheless, on Shabbat itself it is forbidden, for since they instituted to tithe, ultimately it is a fixing. And meduma, which is teruma that was mixed with chullin in a ratio of one hundred times as much, where one lifts it and it becomes permitted—one may not lift it on Shabbat, as it would be fixing (for the halacha is not according to Rabbi Yehuda at the beginning of "Notel," see there). And every type of fixing is forbidden on Shabbat because of the fixing of a melacha (Rashi, Shabbat 142a, s.v. 'ha'), meaning that they will say: what is the difference to me between this fixing and the fixing of a melacha? And even terumot that are rabbinic are forbidden to be separated on Shabbat and likewise during bein hashemashot, except for demai as I have written.

The Rambam further wrote there in law 14: We do not judge… and we do not consecrate, and we do not perform valuations, and we do not proscribe (proscriptions for Heaven or proscriptions for kohanim, and see Turei Zahav subsection 4, and it is very puzzling), because it is like buying and selling. And we do not lift up terumot and ma'asrot, for this is similar to consecrating those fruits that he separated, and furthermore because it is like fixing them on Shabbat (he added a reason to the previous one, and perhaps because of ma'aser sheni, and look closely). And we do not tithe cattle, a decree lest he mark it with red paint (and not because of fixing, for behold from the beginning it was permitted, and also not for the reason of buying and selling, for behold he eats it himself). And a person may consecrate his Pesach offering on Shabbat and his Chagigah offering on Yom Tov, for this is the mitzvah of the day. And just as we do not consecrate, so too we do not sanctify the waters of purification. Thus far his words. And I have not found his source, and also I did not know why we do not sanctify the waters of purification, for behold there is no fixing in this without the sprinkling. And perhaps since sprinkling does not override Shabbat as it is stated in Pesachim (65a), if so, why should he exert himself in vain. And perhaps it is also forbidden in handling, because it is muktzeh since it is holy, and it is forbidden to do anything with it on Shabbat, as it is taught in the Tosefta of Shabbat (chapter 15): "We handle chadash on Shabbat, and we handle ma'aser sheni in Jerusalem but not in the borders" see there, because in the borders it is forbidden to eat it and forbidden to benefit from it because of its holiness. This is not the case with chadash, even though it is forbidden for eating, nevertheless it is permitted to benefit from it, since it has no holiness. And if so, the waters of purification and the ashes of purification are also forbidden in handling.

One who separates terumot and ma'asrot on Shabbat or on a Yom Tov: if inadvertently — he may eat from that which he prepared; if intentionally — he may not eat until the conclusion of Shabbat, and in either case, he has prepared the fruit. Similarly, one who consecrates, or makes a valuation, or declares a herem on Shabbat, whether inadvertently or intentionally — what he has done is done, and it goes without saying on Yom Tov. Similarly, one who transfers ownership to his fellow on Shabbat — he has acquired it, for we hold that a transaction performed through a prohibition is a valid transaction, as I wrote in Choshen Mishpat siman 208, and there we explained why we do not say regarding this: "if one did it, it is not effective," see there (see Magen Avraham subsection 10).

The Rambam wrote in chapter 23, law 16: "One who designated the name for the terumat ma'aser of demai or for the ma'aser ani of certain produce—he may not take them on Shabbat, even though he designated their place prior to Shabbat and they are known and placed at the side of the fruits. But if a kohen or a poor person were accustomed to eating with him—they may come and eat, provided that he informs the kohen: 'This which I am feeding you is terumat ma'aser,' and the poor person: 'This is ma'aser ani.'" Thus far his words, and this is a Mishnah in the fourth chapter of Demai (Mishnah 4). And this is its explanation: One who designated the name, meaning that he said: "The terumat ma'aser that I am obligated to give from this pile shall be placed in its north or in its south," but he did not separate it. And the same law applies to certain produce, except that in certain produce the Israelite does not separate the terumat ma'aser, but rather the Levite; however, regarding demai, where the ma'aser belongs to himself, he is the one who separates the terumat ma'aser to give it to the kohen. Therefore, even though it is already as if separated, nevertheless he may not give them to the kohen or the poor person, because it is forbidden to give priestly gifts on Shabbat. And only with those accustomed to eating with him may they come and eat, provided that he informs them, for if not so, they would think he is feeding them from his own. And as for why it did not teach: "One who designated the name for the terumah of certain produce," it is because it is not common practice to delay the terumah, for terumah gedolah is separated immediately when the threshing floor is completed (the Rash). And as for why it did not teach: "One who designated the name for the ma'aser of certain produce," it is because even if he gives it to the Levite on Shabbat there is no benefit in it, for he must still separate terumat ma'aser (Tosafot Yom Tov).

But the words of the Rambam are perplexing, for in the Yerushalmi there, this Mishnah is established according to Beit Shammai, who said in the first chapter of Beitzah (12b) that one may not bring challah and gifts to a kohen on Yom Tov; however, according to Beit Hillel, it is permitted to take them on Shabbat, and it explains there that there is no difference between Yom Tov and Shabbat (and the Tosafot in Beitzah there cited the Yerushalmi, see there). And the Rambam himself in chapter 4 of Yom Tov, law 26, ruled that one may bring them, and this has already been questioned against him (the gloss in the Kesef Mishneh). And it seems to me, on the contrary, that the Rambam ruled according to this Yerushalmi, which says there: "That one learns from this through lessons etc.", meaning that what Beit Hillel permit in Beitzah is not to bring them to the kohen, but rather through lessons to eat with him—they shall come and eat, see there. And even though the approach of our Shas in Beitzah is not so, as the Rambam himself wrote in chapter 4 of Yom Tov, the Rambam holds that this applies to terumot that were completely separated on the eve of Yom Tov, as he explains there. But regarding the mere designation of the name—they agree with the Yerushalmi that the permission is only through lessons etc. (and this is not like the words of the Tosafot Yom Tov there in Demai, that the Mishnah is not the halakhah, and I wonder that this was not mentioned in the words of the Rambam).

And know that there is one who was uncertain that since kinyan was forbidden on Shabbat, whether one can acquire ownerless property on Shabbat in a matter that does not involve muktzeh, for in this too he acquires from the ownerless property, or perhaps since there is no buyer and seller here, this is not included in kinyan (the Gara"a). And in my humble opinion, it seems clear that it is permitted, for if not so, how is it permitted to bring challah and gifts to a kohen in Beitzah (12b); granted that he is permitted to give them because they are not his, nevertheless, the kohen acquires it on Shabbat and Yom Tov, and this is not like his own, for he could give it to another kohen, and perforce this kohen is like one who performs a kinyan. Rather, since there is no seller, as the Israelite does not transfer it to him but rather the Torah granted it to him—it is permitted, and the same law applies to ownerless property. Furthermore, according to the reason the Rambam wrote regarding buying and selling, lest he write, it is not relevant to ownerless property. Furthermore, even a gift we explained in siman 306, section 17, that it is not similar to buying and selling, and therefore they permitted it for the sake of a mitzvah, see there, and all the more so ownerless property which is permitted in all manners. (And there is a bit of a proof from Bava Metzia 9b: "But if so, if he lifted a purse on Shabbat etc." see there, and if it is forbidden to acquire from ownerless property on Shabbat, even if it were not a purse, and examine this closely.)