SELECTED HALACHOS RELATING TO PARSHAS KI SEITZEI
By Rabbi Doniel Neustadt
A discussion of Halachic topics related to the Parsha of the
week. For final rulings, consult your Rav.
HASHAVAS AVEIDAH - RETURNING LOST OBJECTS
So shall you do for any lost articles of your brother,
that may become lost . . . you shall not hide yourself (22:3).
This verse in this week's parashah prompts us to review and update some of
the laws of hashavas 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)is obligated to return it to
its owner. If the finder picks up the item and then decides 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
erutah - 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 one
should not pick it up(10).
EXEMPTION FROM THE BASIC OBLIGATION
The mitzvah of hashavas aveidah 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 given up hope of recovering his loss and has written
it off, the Torah does not obligate the finder to fulfill the mitzvah of
hashavas aveidah. 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 give up hope of
finding it], then the finder must return the item to its owner - even
though the owner had subsequently despaired of recovering it(12).
Thus one who finds an item and is in doubt about whether or not he must
return it, should resolve three issues: 1) Is the owner aware that he lost
the item? 2) Even if the owner is aware of his loss, how does the finder
know if the owner has given up hope of recovery? 3) 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:
In all such cases, the finder will have despaired of recovering his loss.
Consequently, if the finder picked up the item after the owner gave up hope,
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
(14). It is considered the "proper and right" thing to do(15). 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(16).
- 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
If an item is lost in a public area and 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(13).
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
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(17).
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 a mark of
The unique number of articles found(19).
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 proof of ownership since it is possible that
the owner gave the coins or bills to someone else, and the other person lost
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 Shitah Mekubetzes, Bava Metzia 30a, quoting the
3 C.M. 262:1. In 1980, Harav M. Feinstein (Hashavas Aveidah, Responsa 1)
wrote that a perutah could be worth a nickel.
4 Harav M. Feinstein (Hashavas 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 C.M. 266:1.
8 Beiur Halachah 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 hashavas aveidah.
Harav S.Z. Auerbach (Shemiras 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 activity". See page 336 for an elaboration.
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 give up hope of recovering the
item, but a minor cannot. Not all poskim 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: 1) Once an
item is picked up by the finder, he becomes obligated to return it. The
owner's abandonment of hope of recovering the object can no longer release
him from that obligation (Tosfos Bava Kama 66a). 2) 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
be considered to be in the halachic category of having given up hope of
finding an item when it is in his domain, even though he does not realize it
(Ramban Bava Metzia 26b).
13 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.
14 C.M. 259:5. However, one does not have to publicize his find; Shulchan
Aruch Harav (Hilchos Metziah 18).
15 In certain cases, such as when the loser is poor and the finder is
wealthy, 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
16 Mishpatei ha-Aveidah, pg. 35.
17 Rama C.M. 262:9.
18 Sma C.M. 262:35.
19 22C.M. 262:3.
20 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 have to return the item to the
Weekly-Halacha, Copyright © 2000 by Rabbi Neustadt, Dr. Jeffrey Gross and
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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.
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