Q: While sitting on a park bench, I noticed that someone had left an object that had no siman (identifying feature) on the bench. I took a quick look around to see who was nearby, and I saw someone who had just left the area. It seemed plausible that he might have inadvertently dropped the object, but it was also quite possible that the object was there before he arrived. Was I obligated to pursue him and ask him whether he had lost something?
A: Someone who lost an object and did not realize yet that he lost it, has not consciously been meya’eish (meaning that he hasn’t despaired of finding it), and yi’ush shelo midaas — despair that stems from a lack of knowledge that the object was lost — does not qualify as yi’ush (Shulchan Aruch Choshen Mishpat 262:4).
Chazal established that a person who is carrying money or valuables with him checks his pockets frequently to make sure that he hasn’t lost them. Therefore, if the item you found is of value, you can assume that the person who dropped it already noticed that it’s missing. In that case, if there is no siman on the object, we presume that the owner was meya’eish (ibid. 262:3&6; see BHI 256).
In your case, if the person who just left is indeed the owner, then he obviously hasn’t noticed that he is missing the object, in which case you should pursue him and return it to him. But it is quite possible that it belongs to someone else. In fact, because the majority of people who pass that area are not the person who is leaving at that moment, we assume that someone else lost it. In that case, since it has no siman, you can assume that the owner was already meya’eish and you are not obligated to return it. Although monetary halachah is generally not decided by the principle of rov, in the case of a lost object, since rov is not being applied to take something away from someone (the muchzak), you need not concern yourself with the possibility that it belonged to the person you saw leaving at that moment (Tosafos, Bava Basra 23b, s.v. Chutz).
Now, the Gemara (Bava Metzia 34a) records a dispute between Tanna’im regarding whether a person who finds an object in a locale with a majority of non-Jewish residents is obligated to announce (be machriz) that he has found the object. Halachah sides with the opinion that he is not obligated to be machriz (Choshen Mishpat 259:3).
Tosafos (Bava Basra, ibid.; Bava Metzia 23a, s.v. Veha) wonder why there would be a dispute about this altogether. Because there is no muchzak (as explained above), we should assume that one out of the rov of non-Jewish residents lost it, so why should the finder be obligated to be machriz? Tosafos answer that since it is possible to determine the rightful owner, Chazal mandated that we not rely on the principle of rov.
So why does the other opinion maintain that he does not have to be machriz? The poskim debate how to understand Tosafos’ explanation of that opinion. Some say that this itself was the subject of the dispute between the Tanna’im: If it is possible to determine the rightful owner, does that mean we are obligated to do so? The opinion that is ultimately upheld in halachah maintains that we are not (Shu”t Maharsham 3:156, according to Shu”t Yehudah Yaaleh, Orach Chaim 122; Shu”t Chasam Sofer, Yoreh Dei’ah 175). Others understand Tosafos’ explanation to mean that the reason the finder is not obligated to be machriz is that we presume that the person who lost it was meya’eish because he assumes that a non-Jew found it (Taz 159:3; see Divrei Mishpat 3).
In your case, whether you are obligated to determine if it was dropped, the person who just left is subject to the above debate. According to the poskim who maintain that you can rely on the rov, you are not obligated to pursue him to ask whether he dropped it. But according to the latter approach, since, assuming it was his, he obviously wasn’t meya’eish yet, you are required to ask him whether it is his.
It appears that according to the letter of the law, the poskim lean toward the first approach, and you are not obligated to ask him (see Maharsham, loc. cit.). Nevertheless, if the person seems trustworthy and you think he’ll answer honestly whether it’s his, it is proper to ask.
