Selected Halachos relating to Parshas Ki-Seitzei
By Rabbi Doniel Neustadt
The following is a discussion of Halachic topics related to the Parsha of the week.
For final rulings, consult your Rav.
So shall you do for any lost article of your brother that may become lost... you shall not hide yourself (22:3)
HASHOVAS AVEIDAH--RETURNING LOST OBJECTS
This verse prompts us to review and update some of the laws of
hashovas aveidah, returning lost objects. Many of the rulings in
the Talmud and Shulchan Aruch concern objects and situations
which were common in the olden days, such as fruit falling from
trees or animals running away from their owners. In this review,
we will attempt to apply the halachos to modern-day cases and
situations. First, however, we must explain the basic rules.
THE BASIC OBLIGATION
One who finds an object that has been lost (1) by a Jew is
obligated to return it to its owner. If the finder picked up the
item and then decided to keep it for himself, he transgresses
two negative commandments and one positive one.
One may not ignore his obligation and simply walk away from the
lost item. If he does so, he transgresses a negative commandment.
Men and women are equally obligated in this mitzvah (2).
The lost object must be worth more than a perutah (3) in order
for the mitzvah to apply. If an odd glove, shoe or rubber is
found, one is still obligated to return it even though it is
worthless by itself, since it is has value to the owner who has
its mate (4).
There is no obligation to return an item--even if it is worth
a perutah--if it is clearly insignificant and the owner does
not care about it. Similarly, one need not return an item which
has obviously been abandoned by its owner and is found lying in
the street (5).
Although the basic halachah does not require returning the item
of a non-Jew [or even of a Jew who can be halachically
classified as a rasha le'hachis, intentionally and deliberately
wicked (6)], it is proper to do so in order to sanctify Hashem's
name, kiddush Hashem. If failing to return the item may cause a
desecration of Hashem's name, a chillul Hashem, the finder must
return it (7).
If one finds a lost object on Shabbos in an area where carrying
is forbidden, he may not pick it up (8). Even if it is found in
an area where carrying is permitted but the item is muktzeh,
many poskim (9) hold that it should not be picked up (10).
EXEMPTION FROM THE BASIC OBLIGATION
The mitzvah of hashovas aveida applies only as long as the owner
of the item expects and hopes that the item will be found and
returned. If, however, the owner has despaired of recovering his
loss and has written it off, the Torah does not obligate the
finder to fulfill the mitzvah of hashovas aveida. The halachah
is as follows:
If the owner despaired of recovering his loss, the finder may
keep the item. The halachah considers it as if the item has now
become his, since the owner forsook ownership once he despaired
of ever recovering his loss (11).
But this applies only if the owner despaired of recovering his
loss before the item was found. If, however, the item was found
before the owner realized he had lost it [and before he had a
chance to despair], then the finder must return the item to its
owner--even though the owner has subsequently despaired of
recovering it (12).
Thus one who finds an item and is in doubt whether or not he must return it must resolve three issues:
- Is the owner aware that he lost the item?
- Even if the owner is aware of his loss, how does the finder know if the owner has given up hope of recovery?
- Even if the owner has despaired of recovery, how do we know when he despaired--before the item was found or after?
Our Sages have formulated two criteria to help resolve these questions:
- If one finds an item which will be missed by its owner--either because of its weight or size (like a box or a bag), or because of its importance (like a wallet or loose cash)--we can assume that the owner is aware of his loss, since a person constantly checks his pockets to make sure that his belongings are safe;
- In certain situations we can reasonably assume that, by the time the item was found, the owner had already despaired of recovering his loss. For example:
- An item is lost in an area where the majority of passers-by are non-Jewish (13) or non-observant Jews (14). We assume that in this situation, the owner will surely despair, since he figures that the item will probably not be returned to him (15).
- The item was lost in a Jewish area but it had no simanim (identifying marks) on it. No reasonable person can expect to recover such an item.
- The item had identifying marks on it but it was "lost to all", e.g., it was swept away by a flowing river (16).
In all such cases, the finder will have despaired of recovering
his loss. Consequently, if the finder picked up the item after
the owner despaired, he is no longer required to return it. It
is, however, proper to go beyond the strict requirements of the
halachah and return any object to a person who offers proof of
ownership--even if he has despaired of recovering it (17). It is
considered the "proper and right" thing to do (18). A finder
should be made aware of what is required of him according to the
basic halachah, as well as the "proper and right" conduct which
exceeds the demands of the basic halachah (19).
WHAT ARE IDENTIFYING MARKS?
As stated earlier, when there are no special characteristics by
which the owner can prove that the lost object belonged to him,
we assume that the owner has despaired of recovering his loss.
The finder may then keep the item.
What are considered identifying marks?
- Unique markings on the object itself.
- Being able to identify the area in which the object was lost. If, however, many people put such objects in the same place, this is not considered a mark of identification (20).
- The way the object was packaged or bound. If, however, many people package or tie such objects in the same manner, it is not considered as an identification mark (21).
- The unique number of articles found (22).
- The unique weight or measurements of the objects.
Coins or bills have no identifying marks in halachah. Even if
the owner knows the serial numbers of the bills or that his name
is written on them, these are not considered valid signs since
it is possible that the owner gave the coins or bills to someone
else and the other person lost them (23).
FOOTNOTES
1 "Lost" means that it is clear that the owner dropped the item
unknowingly. If it is evident, however, that the item was
intentionally placed in a certain spot, the object is not
considered "lost" and it should be left in its place undisturbed.
2 Kiddushin 34a. See also Shita Mekubetzes Bava Metzia 30a
quoting the Rosh.
3 C.M. 262:1. In today's (1980) currency a perutah could be a
nickel--Harav M. Feinstein (Hashovas Aveidah, Responsa 1).
4 Harav M. Feinstein (Hashovas Aveidah, Responsa 4). Similarly,
if a photograph is found it must be returned even though it is
actually worth less than a perutah, since it is worth more than
that to its owner--Mishpatei ha-Aveidah pg. 71.
5 Mishpatei ha-Aveidah pg. 72-73 based on C.M. 359:1.
6 C.M. 266:2. Nowadays, the vast majority of non-observant Jews
do not fit into that category--Chazon Ish Y.D. 2:28.
7 CM 266:1.
8 Beiur Halacha O.C. 266:13.
9 Beiur Halachah, ibid., is undecided on this issue, but
Shulchan Aruch Harav (Hilchos Metziah 40) and Chasam Sofer O.C.
42 rule that severe muktzeh, like money, may not be moved for
the purpose of hashovas aveida. Harav S.Z. Auerbach (Shmiras
Shabbos K'hilchasah, pg. 236) tends to hold that even light
muktzeh should not be moved, since returning a lost item is not
considered "a permitted function".
10 Kicking the muktzeh to a safe place, however, is permitted
according to the Mishnah Berurah 308:13.
11 Several poskim hold that only an adult can "despair" from
recovering the item, but a minor cannot. Not all poksim agree--See Pischei Chosen, pg. 249 and Mishpatei ha-Aveidah, pg. 85 for
conflicting views.
12 C.M. 262:3. The rationale can be explained in one of two ways:
- Once an item is picked up by the finder, he becomes obligated to return it. The despair of the owner can no longer release him from that obligation (Tosfos Bava Kama 66a);
- Once the item is picked up by the finder, he becomes obligated to guard it for the owner. The item is then considered as if it is really in the domain of the owner. One cannot despair of an item when it is in his domain, although he does not realize it (Ramban Bava Metzia 26b).
13 C.M. 259:3.
14 Mishpatei ha-Aveidah, pg. 31.
15 An exception to this rule is when the lost item is a sefer,
since we assume that even if a non-Jew found it, he would sell
it to a Jew. The finder, therefore, does not despair of ever
recovering his sefer--Rama C.M. 259:3. A tallis, tefillin and a
mezuzah are considered like a sefer in regard to this halachah--Pischei Chosen, pg. 272.
16 C.M. 259:7. In this case, however, even if the item was found
before the owner despaired, and even before the owner realized
it was lost, the finder may still keep it--Bava Metzia 21b.
17 C.M. 259:5. One, however, does not to publicize the finding--Shulchan Aruch Harav (Hilchos Metziah 18).
18 In certain cases, such as when the loser is wealthy and the
finder is poor, a Jewish court can even "force" the finder to do
the "right" thing and return such an item to its rightful owner,
even though according to the basic halachah the item clearly
belongs to the finder--Shach 259:3; Aruch ha-Shulchan 259:7.
19 Mishpatei ha-Aveidah, pg. 35.
20 Rama C.M. 262:9.
21 Sm"a C.M. 262:35.
22 C.M. 262:3.
23 C.M. 262:13; Igros Moshe C.M. 4:45-3. Nevertheless, a talmid
chacham who is well known for his honesty may claim that he
recognizes the money and that it belongs to him. The finder will
then need to return the item to the claimant.
Weekly-Halacha, Copyright © 1997 by Rabbi Neustadt, Dr. Jeffrey Gross and
Project Genesis, Inc. Rabbi Neustadt is the principal of Yavne
Teachers' College in Cleveland, Ohio. He is also the Magid Shiur of a daily
Mishna Berurah class at Congregation Shomre Shabbos.
The Weekly-Halacha Series is distributed L'zchus Hayeled Doniel Meir ben
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