I recently moved to a new apartment, and whilst I was packing up my belongings, I discovered a surprisingly large number of items which belonged to other people, which somehow made their way into my apartment. Therefore, I decided to fulfill the mitzvah of hashovas aveidah by trying to track down the owners, for some items I was successful and for some not. Due to the above, I decided to take the opportunity to review some of the basic halachos of hashovas aveidah. The truth is, the mitzvah of hashovas aveidah is one which presents itself almost on a day-to-day basis, so I feel it is worth dedicating a sheet towards discussing the topic, especially as the mitzvah of hashovas aveidah is in this week’s parsha. Read on and be enlightened.
Below are a number of common shailos [questions] related to the mitzvah of hashovas aveidah:
- Over the past few months, our shul has accumulated a large collection of coats, umbrellas, scarfs and various other items in the coatroom. We have hung up notices asking people to check if they have any clothing there, but many items remain. The shul is now undergoing renovation which will ruin whatever remains. What can we do with the accumulated clothing?
- Walking down a New York Street, Rochel’s attention is attracted by a bag, bearing the logo of a seforim store, that is lying on a street corner. Opening the bag, she discovers a sefer that appears to have been purchased from that store and a handmade sweater. What should she do?
- Reuven is walking down the street, and he sees a pacifier lying there, is Reuven obligated to pick it up, put signs up and try and return it, or may he simply leave it there?
- I remember hearing a halachah that a chosuvah [important] person is exempt from the mitzvah of hashovas aveidah, is this true? And what if he wants to do it anyway, is he allowed? Can the same argument be made for a woman, namely, that it is not tznius for her to return a certain item, i.e., if she finds a ball under a car, can she say that it is not tznius for her to bend down to retrieve the item?
- I found an expensive diamond ring at a chasunah hall, and I know the owner is insured, must I return it, or perhaps since in the end of the day she won’t lose out I can keep it?
Shailos like these happen to each of us almost daily (except number 5!). What rules govern what to do with found property?
Source of the Obligation
In this week’s parsha the Torah teaches:לא תראה את שור אחיך או את שיו נדחים והתעלמת מהם השב תשיבם לאחיך. ואם לא קרוב אחיך אליך ולא ידעתו ואספתו אל תוך ביתך והיה עמך עד דרש אחיך אתו והשבתו לו. וכן תעשה לחמרו וכן תעשה לשמלתו וכן תעשה לכל אבדת אחיך אשר תאבד ממנו ומצאתה לא תוכל להתעלם. – “You shall not see the lost ox or lamb of your brother and ignore them; you shall certainly return them to your brother. If your brother is not nearby or you do not know him, gather the animal into your house and it should stay with you until your brother inquires about it and you shall return it to him. So shall you do to his donkey and to his garment and any other lost item of his that you find; you may not ignore it. (Devorim 22:1-3)
In addition to the mitzvas aseh [positive commandment] of hosheiv teshivaim, which requires one to return a lost item to its owner, there is a lo saseh [negative commandment] of lo suchal l’hisalem, not to ignore the item. Many times, it’s a big pain to look after a lost item, find its owner, put up signs etc., especially in agrarian times, when if one found a cow, he would have to bring it into his barn, feed it, milk it etc. Many times, one may be tempted to turn a blind eye, and pretend he never saw the item, the Torah, however, warns lo suchal l’hisalem and if one does, not only is he in violation of an aseh, he transgresses on a lo saseh as well.
Although the Torah discusses oxen, lambs and donkeys, the rules of lost objects apply equally to our modern-day items as well. Assuming that you might be able to identify the owner of an item, you are usually required to pick up a lost item and return it to the owner. However, there are many details about these halachos that affect the shailos mentioned above.
The Basic Rules
When must a finder pick up a lost item in order to return it, and when is retrieving it optional? When must he leave it untouched? When must he attempt to locate the one who lost it and when not? When may he keep a lost item and when not? The first step in understanding these complex rules is to understand the legal concept called yi’ush. Yi’ush is when a person despairs of retrieving his property. Here is an example:
Someone lost something in a place where whoever finds it will probably not return it — for example, in a city where most people do not return lost objects. Since the owner does not expect to recover his property, yi’ush transpires even though the owner could readily identify what was once his possession. In this case, the finder is permitted to keep the found object (Bava Metzia 24a). Why?
Yi’ush is halachically equivalent to relinquishing ownership. Since the owner already accepted the loss, the Torah does not require the finder to return the lost item. However, this applies only if the finder picked up the lost object after yi’ush took place. If the finder picks up the lost item after yi’ush, he is not required to return it, nevertheless, it is still preferable (lifnim mishuras hadin) to return the lost item to the owner (Bava Metzia 24b).
An Important Exception
Although a finder may keep an item after yi’ush, as we explained, there is a very important caveat. He may only keep the lost item if he can assume that the owner has already found out about his loss and therefore was me’ya’eish, despaired from recovering it (Bava Metzia 21b-22b). However, if the finder picked up the lost object before yi’ush, he became obligated in the mitzvah of hashovas aveidah, and may not keep the item even after the owner despairs of recovery (Bava Metzia 26b). This is true even if the owner will be me’ya’eish as soon as he becomes aware of his loss. Since the owner is as yet unaware of his loss, he cannot consciously despair and create yi’ush. This situation is called yi’ush shelo mida’as, a case where despair is inevitable, but has not yet transpired.
Yi’ush Shelo Mida’as – Unknowing Yi’ush
One of the first disputes that one encounters when he starts learning Gemara is the dispute between Abaye and Rava regarding yi’ush shelo mida’as, a situation in which we know that the owner will be me’ya’eish as soon as he realizes his loss, yet as of this moment, he is probably still unaware of his loss. Abaye contends that yi’ush shelo mida’as does not constitute yi’ush, because yi’ush does not make a lost object effectively ownerless until the owner becomes aware of his loss and despairs. Until this happens, the lost property still belongs to the first owner and the finder cannot take possession. Rava argues that yi’ush shelo mida’as constitutes yi’ush: since the owner will certainly despair of recovering the property as soon as he realizes his loss, we assume that yi’ush has already transpired and a finder may keep the lost item (Bava Metzia 21b-22b).
How Do We Rule?
Although in the dozens of disputes between Abaye and Rava, Rava’s opinion usually wins, this is one of the six exceptions where the Gemara rules according to Abaye; yi’ush shelo mida’as does not constitute yi’ush. Therefore, one cannot take possession of a lost item unless one can assume that the owner has already discovered his loss and despaired of its recovery.
A Practical Case:
Whilst travelling on the train you see a frum but unfamiliar person rush off the train at one of the stops - forgetting his umbrella. Clearly, he will be me’ya’eish as soon as he realizes that he is missing his umbrella; nevertheless, according to Abaye you may not keep the umbrella unless you are certain that he has realized his loss before you picked it up. Before that time, the umbrella is still the property of the person who lost it and someone picking it up becomes responsible to try to return it.
How long must you wait to be certain that he discovers his loss? This depends on the circumstances. If the owner left the train at this moment and it is raining, you may assume he realized his loss as soon as he reached the street. However, if it is not raining, or he was transferring to another train, you must wait until it rains to assume that he has realized his loss.
May you leave the umbrella in its place? After all, the Torah states that you may not ignore a lost object.
The answer is that there is no requirement to pick up a lost item if there is no reasonable possibility that you will be able to locate the owner.
Must one abandon the umbrella?
Halachically, one may not take possession of the umbrella, but can pick it up for the loser. However, once one picked it up, some poskim contend that one is responsible to hold on to it indefinitely.
We are almost ready to analyze what to do in the cases we mentioned at the beginning of this week’s write-up. But first we need to explain one more principle.
Siman – An Identifying Mark
When the Torah required returning a lost object, the Torah was primarily referring to an item bearing an identifying mark (a siman) since the owner may still hope to recover it (Mishnah Bava Metzia 24b). One who finds an object with a siman in a place with a substantial population of observant Jews should assume that the owner was not me’ya’eish. The finder must retrieve the item and return it to its owner. If the finder cannot readily identify the owner, one is required to announce it (Mishnah Bava Metzia 27b).
A siman is something that positively identifies an object as belonging to its owner (Shulchan Aruch, Choshen Mishpot 267:4). It must be a feature by which the owner could clearly identify the object as his own, such as a nametag, or an unusual marking or blemish. Color or style of manufacture is not a valid siman (Sma 267:9) since knowing these characteristics do not demonstrate that one is its rightful owner. A siman must be a characteristic that only the owner would know (see Shulchan Aruch, Choshen Mishpot 267:12).
When one announces that he has found a lost item, he should not reveal the siman, nor return the item to the person claiming to be its owner unless the claimant reveals knowledge of a valid siman (Bava Metzia 27b).
If a lost item has no siman, the finder is not required to retrieve it since he cannot return it to the owner. Nevertheless, in several instances the finder may not keep the item even though the lost item has no siman, and in some circumstances he should not pick up the lost item. One situation is where the owner does not yet know that he lost it (ye’ush shelo mida’as). Since we rule like Abaye that yi’ush shelo mida’as is not valid yi’ush, one cannot acquire an item until yi’ush transpires. On the other hand, returning this item to its rightful owner is impossible since the person claiming to be the rightful owner must identify the object with a siman (Bava Metzia 27b). Therefore, it may be better not to pick up an item where the law of yi’ush shelo mida’as applies.
Derech Hinuach
The second instance where the finder may not pick up an item is when the owner intentionally placed the item in a particular place (makom hinuach) and subsequently forgot about it. For example, one finds a coat or umbrella abandoned in a coatroom, or a tallis hanging outside the men’s room. In these cases, by removing the item from its place one jeopardizes the owner’s ability to retrieve it since the owner might later remember where he left it and return for it. However, once the finder removed the item, the owner can no longer retrieve it and will thereby suffer a loss. Therefore, the finder should leave the item unhindered (see Bava Metzia 25b).
The major exception to this latter case is when the forgotten item will disappear. The Gemara provides an example of this situation: someone found an item that had been placed in a garbage heap that is usually abandoned, but is being cleared away (Bava Metzia 24a). Obviously, the owner is better off if the finder takes the item and announces it, then if he abandons it and it disappears.
But, wait a minute — How will the owner be able to claim the item if it has no siman? Didn’t we just say that one may not return an item unless the owner proves his ownership with an identifying siman?
Knowledge Proves Ownership
The answer is that in this instance the location of the lost item serves as its siman. Since no one but the owner knows where the item was hidden, this information validates his claim (Bava Metzia 22b). Therefore, one should take the item and announce it as a lost object.
Back to the Beginning
Finally, we can analyze the questions we started out with:
Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many coats still remain. The shul is now undergoing renovation which will ruin any remaining clothing. What can we do with them?
This case has an obvious solution. Since the renovations will ruin anything remaining in the coatroom, one may certainly remove them and treat them as one would treat any other lost object. Although under these specific circumstances some poskim permit disposing or keeping these items, most poskim require these items be kept in a secure place in case the owners return for them. One should place a notice on the bulletin board advising people whom to contact. (As an important aside, many coats that are left in shul have a dry cleaners tag inside, and if one calls up the cleaner, many times the owner can be easily tracked down.)
At this point, we can discuss our second question:
Walking down a New York Street, Rochel notices a bag with the logo of a seforim store that contains a handmade sweater and a brand new sefer. What should she do?
As we mentioned, there is no requirement to return a lost item unless (a) the item has a siman and (b) one found it in a place where the loser thinks people will return it.
Regarding the sefer, if it is brand new, it will probably have no identifying siman. On the other hand, if the sefer is used, it may have a siman. However, in this particular case, even a brand new sefer will have a siman, since it was located together with the sweater, which has a siman.
However, in this particular case, Rochel is not required to return the items or attempt to locate the owner since she found them on the streets of New York. As we mentioned above, someone losing an item in a place where most of the population does not return lost objects is me’ya’aish as soon as he realizes his loss. After yi’ush has transpired, there is no requirement to return an item, although it is meritorious too. Thus, Rochel is not required to locate the owner, although it is preferable to do so.
By the way, returning the sefer to the store accomplishes nothing, since the store no longer owns it. However, contacting the store and notifying them that she found the bag is certainly meritorious since the loser may thereby be able to contact her.
May Rochel Keep the Lost Items?
This will depend on whether we can assume that the owner already realized he had lost them. If he has not yet realized, Rochel may not keep them since yi’ush shelo mida’as is not valid yi’ush. Even if we were to assume that the owner will eventually give up hope of seeing his property again, Rochel cannot take possession since yi’ush took place only after she picked up the items. Thus, Rochel cannot keep the sefer and sweater unless she is reasonably certain that the owner realized his loss before she picked up the bag.
Does One Have to Worry About a Pacifier?
In Hilchos Hashovas Aveidah, the Mechaber (259:2) lists a series of exceptions when it comes to the mitzvah of hashovas aveidah, one of the exceptions is that it doesn’t apply to an item worth less than a prutah. If for example, one finds a paper clip on the street, there is no chiyuv to return it, as a paper clip is worth less than a prutah. However, what happens if someone is walking down the street, in a place which is mostly Jewish i.e. around Yerusholayim and he sees a pacifier lying on the street (something which must happen at least 5 times a day for people who live in Yerusholayim) or a cheap baby bottle, is one obligated to pick it up, put up a sign etc. and do all he can to find the owner, or can one simply ignore it? In such a case it may be very tempting to ignore it, as it is a big pain and very unlikely that one will never find the owner, however, if there is an obligation of hashovas aveidah and one ignores it, one may end up violating both a lav and an aseh, what is the din in such a case?
R’ Tzvi Spitz in his Mishpatay HaTorah (8:9) is mechadesh a very useful chiddush, and he says, that even if something may be worth more than a prutah, if it is the type of object that the owner would be embarrassed to claim back (i.e. a pacifier) and that the owner would be embarrassed if you made signs for the lost item, then there is a no obligation to return such an item, and there is nothing wrong with ignoring it and leaving it on the street.
In footnote 7 he adds, the Torah writes in regard to hashovas aveidah: עד דרש אחיך אתו – “until your brother inquires about it”. We see that hashovas aveidah only applies to an item, that a person seeks and will claim back, on a type of item where most people would be embarrassed to ask for it back, there is no obligation.
Zokein V’einoi Lefi Kavado
Another important halachah in regard to hashovas aveidah which the Mechaber (263:1) mentions is the halachah of zokein v’eino lefi kavado. The din is that if one is either a talmud chocham or an old, revered person and it is befitting for him to busy himself with such an item, he is exempt from the mitzvah of hashovas aveidah. For example, if a talmud chocham would see a ball under a car, it would be beneath his dignity to bend down and retrieve the item, therefore, he is exempt.
What’s the measuring stick?
The Mechaber explains, the way to work out if something is beneath one’s dignity is by judging if one would be prepared to do it for himself. If one would do it for himself, then he is obligated to do it for others. However, if one would refrain from doing it himself, as it is beneath his dignity, then he is exempt from doing it for others as well.
Must He Hire Someone Else
What’s the halachah if one finds an item, where if it was his own item it would be beneath his dignity to retrieve it, however, he would hire someone else to do it. Is he obligated to hire someone to retrieve the lost item of his friend?
The halachah is that although the measuring stick is based on what one would do for himself, one is not obligated to spend money on someone else.
Can a Talmid Chocham Return the Item Anyway?
If the talmid chocham or old revered person wants to be nice and act lifnim mi’shuras hadin [more than what the din requires] and return the lost item, is he allowed to?
There is a big machlokes between the Rosh and Rambam in regard to the above. The Rosh maintains that if it is beneath one’s dignity to return a certain item, he is not allowed to go ahead and return it anyway, as by doing so one is disgracing the Torah, and even if the talmud chocham doesn’t mind, he has no right to disgrace the Torah. However, the Rambam argues and maintains that if he wants to return the item, he is allowed to.
Women
The above halachah is not limited to a talmid chocham or old person, rather, it applies to any situation where one feels its undignified for him to return a lost item. Therefore, if a woman sees a lost item under a car, and she feels it is a lack of tznius [modesty] for her to bend down to retrieve the item, she is exempt and has no obligation to do so. Moreover, in the case of a woman, presumably even the Rambam will agree that in a case where it is a lack of tznius for a woman to return a certain item, she wouldn’t even be allowed to act lifnim mi’shuras hadin and do so.
Do We Apply the Rule of Zokein V’eino Lefi Kavado When Someone is Drowning?
R’ Shlomah Kluger, was a tremendous gaon, and a prolific Teshuvah writer, and he has hundreds and hundreds of Teshuvos. However, every now and again he writes chiddushim which are disputed by virtually all poskim, one such example is a Teshuvah in regard to hashovas aveidah.
The above is talking about a case where the owner wasn’t me’ya’eish, if the owner was already me’ya’eish then there is nothing to talk about.
