Yei’ush – Abandonment #23
Aveidah Mida’as – Willful Loss
Q: Someone left a bunch of cards scattered outside his house. Must I return them, or may I take them for myself?
A: When a person knowingly left an item in a place where it can get lost, this is called aveidah mida’as — willful loss — and there is no obligation of hashavas aveidah (C.M. 261:4).
For example, a person who left his cow untied in an open barn and it wandered out, or someone who threw his wallet in the street and left it.
Rambam and Shulchan Aruch rule that although the finder has no responsibility of hashavas aveidah, he may not take the item for himself. Tur and Rema, however, rule that aveidah mida’as is considered as hefker so that the finder can keep the item (ibid.).
The Acharonim provide a resolution to this seeming dispute; sometimes aveidah mida’as is considered hefker and sometimes merely excluded from the responsibility of hashavas aveidah.
Thus, although hefker usually requires a verbal statement (C.M. 273:3), when the owner’s actions indicate that he intends to render the item hefker, this is tantamount to a verbal statement, and the finder can keep the item. Otherwise, there is no responsibility to return the item, but the finder may not take it for himself (Shach 261:4; Machaneh Ephraim, Zechiya Mei’hefker #6).
