Question #1: THE TALIS EXCHANGE
Dovid asked me the following shaylah: “I placed my talis in shul and, upon returning, discovered that it had been replaced by a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”
Question #2: THE LAUNDRY EXCHANGE
A laundry returned the correct quantity of items that had been brought in originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his items and noticed some things were missing however, the laundry insisted that they had returned whatever he brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets, and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost, and that he is, therefore, not required to return it. Must he return the sheet?
Question #3: THE WEDDING EXCHANGE
Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?
Question #4: AN UMBRELLA ON THE SUBWAY
On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?
SHO’EL SHELO MIDAAS
The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing (Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.
CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?
Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim? I’ll keep his talis, and allow him to keep mine. (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)
Although Dovid may grant permission to the other person to use his talis, can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:
EXCHANGED ITEMS AT THE TAILOR
Someone whose clothes were replaced with someone else’s at a tailor may use what he received, until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received, but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).
We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat, since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. Even if the result is that I must purchase a replacement, I may have to do so, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.
However, if the exchange happened in a tailor shop, I may use the replacement.
WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?
Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?
The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:
Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead, and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available, so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).
The next passage in the Gemara’s discussion is now almost self-explanatory:
Rav Chiya, the son of Rav Nachman, explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.
Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.
Similarly, the following concluding passage of this particular discussion is clear.
Rav Chiya, the son of Rav Nachman, continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However, if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.
If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, he must have mistakenly given you the wrong garment, and you must return it.
We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise, the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.
Thus, referring back to question #3 above: Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange?
The answer is that we have no basis with which to permit you to use the other person’s coat.
At this point we can analyze Question #2.
A laundry returned to Reuvein the same number of items he had brought them; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost, and that he is therefore not required to return it. Must he return the sheet?
One of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!
Answer: Shimon did not give the sheet to the laundry for them to sell. Therefore, the laundry gave Shimon’s garment to Reuvein without authorization, and he must return it to its rightful owner, even if Reuvein has no other way of being compensated for his loss (Terumas HaDeshen #319). The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.
SO, WHAT IS THE STATUS OF THE TALIS?
Let us return to our first original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.
Based on the above discussion, it would seem that Dovid has no choice but to treat the talis as unusable and to consider purchasing a new one. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:
Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner. The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.
Shmuel’s statement presents an obvious question:
His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And, even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to their owner, if and when he locates him, why is this case different from the normal obligation to return the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.
Some poskim contend that this ruling applies only to a mitzvah object, such as tefillin, where the owner wants someone else to use them, rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling applies also to non-mitzvah items, in cases where the owner is satisfied with simply receiving compensation equal to their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:
TEFILLIN VERSUS SEFORIM
The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who finds books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to get his own books back, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have developed a bond with their own seforim, since they are difficult to replace. From this, one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or any other easily replaced item.
Although this seems to be the obvious point of this Gemara, elsewhere the Gemara appears to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very specific coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when it makes no difference to the owner if the particular coins are returned to him, or if he is given others of equal value in their stead.
The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, a second factor is that a finder who chooses not to use the tefillin but give them back becomes a guardian, who is responsible to care for them. He must then occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since there is now no risk of damage to the tefillin. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.
We can therefore extract the following principles:
If taking care of a lost item requires some effort, and also, the owner does not care whether or not the original item is returned to him, the finder may estimate the value of the lost item in order to, eventually, repay this amount. Otherwise, the finder should hold the lost item and await the owner’s return. (There is another case mentioned when the finder sells the lost item for a similar reason, but that case is beyond the scope of this article.)
Having established the rule, let us see which cases fit the rule, and which do not. Clothing does not usually fit this rule, since people are interested in getting back the same garment that they lost. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.
ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?
On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since, if they are never used, they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.
We are now prepared to answer Question #1 and also Question #4.
First, Question #4: On the subway you see a frum, but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?
Clearly, she will despair of recovering her umbrella as soon as she realizes her loss. However, one may not pick up the umbrella until after she has realized her loss, and this may happen only some time after she leaves the subway. If you pick it up soon after its having been left, the umbrella is still the property of the person who lost it, and the one picking it up is responsible to return it.
However, a person is usually not concerned about owning his specific umbrella, but is satisfied with money to purchase a replacement. (If indeed, the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner, and should she prove that the umbrella was hers, you would have to compensate her for it.
And now, our analysis of the opening question, The Talis Exchange
Dovid had placed his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and indeed, the owner may not even notice the exchange. May he use the other talis or must he purchase a new one?
I believe that most men do not feel attached to their particular taleisim, and this case is, therefore, comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should he ever come back for it. (When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt they were.)
The careful reader may have noted that our discussion is heading to an unusual conclusion. Although the Gemara rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today, the opposite is generally true – an owner is usually not concerned about getting back the same sefer, since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or for any reason that would give this particular sefer special meaning.)
On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshiyos were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. Thus, after analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides the opposite of its conclusion and rules that the original owner gets his tefillin back.
However, an average person is usually satisfied with a replacement pair of tefillin, provided that they are absolutely kosher and of equal halachic quality. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with the specific society in which they occur.
Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.