Parshas Ki Seitzei includes the mitzvah of hashavas aveidah. This article was published previously in my book From Buffalo Burgers to Monetary Mysteries. Should you be interested in purchasing the book, you may do so via the website, RabbiKaganoff.com, or by sending me an e-mail note.
Hershel calls me one day, somewhat agitated and very excited, with the following shaylah:
“While making an unusual household repair, I discovered a wad of hundred-dollar bills hidden in a secret place,” he begins. The questions now come tumbling out. “I know this is not money I ever put aside. How do I determine who the owner is? May I trust any previous resident of the house who claims that the money is his? Do I need to be concerned that the money was used for illegal activity? What do I do if I can’t find the owner?” And then finally, with a hopeful tone in his voice, “May I borrow the money while I am trying to locate the owner? We are behind on the mortgage, and it would be really helpful!”
Before answering Hershel’s questions, we need to clarify the Torah’s rules for returning lost objects:
BASIC HASHAVAS AVEIDAH RULES
As we are all aware, there is a mitzvah to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4; Bava Metzia 26b). There are actually two different mitzvos, a prohibition against ignoring the lost object and a positive mitzvah to return it. Someone who retrieves the lost object and successfully returns it fulfills both mitzvos.
There are several questions we must answer when confronted with a hashavas aveidah situation. Among them are:
- Where did you find the item? Did you find it in a place where there are many people who do not observe the laws of hashavas aveidah, in which case the owner would assume that the finder would probably not return it? Or perhaps you found it in a shul or other place where the people passing through observe the halachos of hashavas aveidah.
- Is it an object that the owner probably already knows that he lost, such as large amounts of money, or is it something that he probably does not realize he lost, such as a pen or small change?
- Does the item have an identifying marking, called a siman, or not?
- Was the item placed intentionally, or does it appear to have been dropped?
An important principle governing the laws of lost objects is the concept called yiush, which means that the owner does not expect to retrieve the lost item. Once the owner has given up hope of getting the object back, it is halachically considered that he has relinquished possession (Chinuch, Mitzvah 538; Shulchan Aruch Choshen Mishpat 262:5). At this point, there is no requirement to return the lost item, and one certainly does not need to try to locate the owner. Nevertheless, it is still a mitzvah lifnim mishuras hadin, beyond the requirements of halacha, to return the lost object (Bava Metzia 24b).
EXAMPLE: If a driver observed something blow out of his car window and did not return for it, we may assume that the owner was me’ya’eish (gave up hope of retrieving it).
We now understand the basis of the first question we posed above: Was the item found in a place where the owner would assume that it will not be returned, such as a shopping mall, or in a place where it might be returned, such as a shul?
Based on what we have explained, there is no halachic requirement to return an item that was lost in a mall or other place frequented by people who do not observe hashavas aveidah. The finder may assume that the owner gave up hope of having the item returned, even if it has a siman. However, it is a mitzvah lifnim mishuras hadin to return the item.
Many poskim contend that there is no halachic requirement to return an item that is used by a child, such as a toy or child’s garment. Since adults know that children lose things all the time, these items are categorized as aveidah mi’daas, items that the owner knows may be lost since he gave them to someone who is not halachically responsible (see Bava Basra 87b; Mishpetei Torah III pg. 44). Therefore, when a parent gives a child these items he is not surprised when they are lost—it is an assumption that they will periodically lose their clothes, toys, and school supplies.
This halacha does not apply to an item that might be used by a child over bar- or bas-mitzvah, since they are halachically responsible.
ITEMS THAT THE OWNER DOES NOT KNOW HE LOST
Until now we have been discussing items that the owner knows that he lost. What is the halacha concerning items that the owner does not yet realize that he has lost?
The Gemara discusses the rule governing yiush shelo midaas (lit., giving up hope without knowledge), which refers to items that someone will give up hope of retrieving as soon as he realizes he lost them; however, he does not yet know that he has lost them. Are these items already considered ownerless? This question is probably the most famous dispute between the two great Talmudic scholars Abaye and Rava, and it is often taught as an introduction to didactic Gemara study.
The Gemara concludes that yiush shelo midaas is not valid yiush until the owner realizes his loss. This means that, although the owner will eventually give up hope of retrieving the item, until he realizes his loss, the item is still his property and someone else may not take possession of it.
How does the finder know if the owner has realized his loss? In general, this depends on the item. Someone who finds a large item that the owner was probably carrying himself may assume that the owner has already realized his loss by the time it was found. Similarly, if you found a large quantity of money on the street, you can assume that the owner is already aware of his loss since one tends to check one’s pockets frequently when carrying large sums of money. Therefore, we assume that the owner realized his loss by the time the finder found it. It is therefore permitted for the finder to keep the item.
On the other hand, if one finds an item that might go unnoticed for a while, such as small change, one should assume that the owner may not yet know of his loss and one should not assume that the finder can consider it his.
WHAT IS A SIMAN?
One of the distinctions I mentioned above was between items that have an identifying marking, called a siman, and those that do not. What is a siman and why is it so significant to the halachos of lost objects?
Someone who lost an item in a shul or similar place where most of the people are halacha abiding would assume that people would try to return the item. As we will explain shortly, to return a lost item, it is important that the item have a siman that the owner can use to identify it. A siman may be a name tag or an unusual marking or blemish on the object – anything that the owner would know about but that someone else probably would not.
MUST IT BE A PHYSICAL SIMAN?
An item placed in an unusual way or in an unusual location also has a valid siman – someone who knows this information would be demonstrating that he or she is the item’s owner. For example, although money does not usually have a siman, coins placed in a pile or in an unusual location have a valid siman (see Bava Metzia 23b).
The number of bills involved would also be a valid siman. Thus, the number of bills in a wad of dropped bills is a valid siman (Bava Metzia 23b).
Combining the rules that we have learned we reach the following conclusion:
Someone who finds a lost item in a shul or other place where the owner would assume that people observe hashavas aveidah should see if the lost item has a siman. If it does, then the owner will assume that he can still retrieve his lost item, and the finder is required to notify people that he found such an item.
In the days of Chazal there were different methods utilized for this notification. A contemporary method is to hang up a sign on a bulletin board near where the item was found or to bring the item to a functioning “lost and found” depot.
When finding a lost object that has a siman, one should not announce it in a way that gives away its siman. Thus, if one found a watch in shul, one should announce (on the sign or bulletin) that he found a watch and leave it for the owner to identify the item by its defining characteristics (Bava Metzia 28b).
AN ITEM THAT WAS PLACED INTENTIONALLY
If the item appears to have been placed and forgotten, rather than dropped, one should leave the item where it is, since the owner will probably try to retrace his steps to find it.
If the item was left in a very secure place, one should leave the item there, since it will not disappear (Shulchan Aruch Choshen Mishpat 260:1). Thus in Hershel’s case, if the owner does not surface and cannot be located, the money should be left in its place and not touched, and certainly not borrowed, until the owner returns for it. In this instance, even if Hershel removed it from its place he should put it back since he knows that the owner did not return to look for it in the interim (Rama 260:10 and Sma 48).
However, if the item was left in a place where it will be thrown away, one should try to return it to its owner (Bava Metzia 25b).
WHEN DOES THE FINDER NOT RETURN IT?
One should not return the item without determining that the person can prove he is the owner. This is accomplished when the owner provides his siman identifying himself as the legitimate owner of the lost item.
If the claimant is dishonest, one should not return the lost item to him, even if he seemingly demonstrates that he is the correct owner. This is because of suspicion that he has discovered proof to claim falsely that he is the owner (Bava Metzia 28b).
WHEN SHOULD YOU NOT PICK UP A LOST ITEM?
If the lost item has no siman, you are not obligated to pick it up since you will anyway be unable to return it to the owner. Furthermore, there are two different circumstances whereby one should not pick up the lost item, and if one did, one may not keep it, even though the lost item has no siman. One case we mentioned above — where the owner originally placed the item there intentionally and subsequently forgot to retrieve it (makom hinuach). In this case, one should not pick up the lost item because the owner might still be able to retrace his steps and find the item, yet if you pick it up he will be unable to claim it since it has no siman (see Bava Metzia 25b). However, if leaving the item in its place will cause it to become destroyed or stolen, one should remove it and try to “announce” it using its location as a siman (ibid.).
WHAT IF THE OWNER DOES NOT KNOW HE LOST IT?
The second case where one should not pick up the lost item is where the owner does not yet know that he lost it (yi’ush shelo midaas) and the item has no siman. As explained above, since the owner does not yet realize his loss, he has not yet relinquished ownership. Therefore, the finder cannot keep the lost object.
In both of these instances, if the item has been lost for a long enough time that one may assume that the owner found out about his loss, one may keep the lost item. This is because of the following reason:
MAY I EVER KEEP AN ITEM THAT I FOUND?
If the owner knows that he has lost the object and despairs of retrieving it, then the finder may keep it, provided he picked it up only after the owner gave up hope to ever get it back (Bava Metzia 22b). Therefore, if the finder can assume reasonably that the owner has already given up hope that he will retrieve the lost object, the finder may keep it (Chinuch, Mitzvah 538).
WHAT HAPPENED TO THE “FOUND MONEY”?
Having explored the basic laws of hashavas aveidah, we now return to the saga of Hershel’s found money.
In our particular case, we can assume that someone who had lived previously in the house lost the money. Thus, we should be able to identify all the possible candidates and then try to narrow down the list.
We have no halachic reason to be concerned that the money was earned illegally.
I asked Hershel who had lived in the apartment previously. He told me he would contact the previous tenant and find out what he could.
Hershel contacted the previous tenants, a fine, halachically-committed couple, Chayim and Rochel. Hershel asked them if they had hid money in the apartment and forgotten about it, without hinting to them where the hiding place was so that he would not reveal the siman.
“No, I have no recollection of hiding money in the apartment that we left behind,” responded Chayim, “I am sure the money is not ours.”
From Chayim, Hershel found out the identity of the previous resident of the apartment, a not-yet-observant Jew, Phil. With a bit of luck, Hershel located Phil, and began to explain to him about the money.
“I hid money all over the house, in every hiding place you can imagine!” responded Phil, “I don’t even remember all the hiding places I used. Indeed, I probably didn’t take all the money with me when I left. I am sure the money is mine!”
Of course, this statement does not provide us with any help. Maybe the money is indeed Phil’s, but he must provide us with a siman. Not remembering the siman does not allow us to give it to him. For all we know, Phil could be a dishonest person, and the money belongs to one of the tenants who lived there before him.
Unfortunately, this put Hershel in a very difficult position. As mentioned above, one may not return money to a dishonest person, even if he provides a siman, because of concern that he might have guessed right (Mishnah Bava Metzia 28b). Thus, if Phil is indeed dishonest, Hershel could not trust him, even if Phil would guess where the money had been found.
Hershel attempted to explain to Phil that perhaps he could provide some more information about the money, such as where the money was hidden or how much money there was. Phil became very testy. “I am telling you the money is mine. What’s the matter, you don’t trust me?!”
Hershel called me back, a bit disappointed. He had tried to fulfill the mitzvah of hashavas aveidah, but unfortunately the trail ended here. We will never know whether Phil was the legitimate owner of the money, but the halacha requires us to be reasonably certain who is the owner before we return to him the lost item. Furthermore, there was no way to trace tenants of the apartment who lived there before Phil and to try to ascertain whose money it was. Hershel assumed that he would have to leave the money where he found it, hoping that perhaps one day someone will come by to identify the money properly by its simanim.
Maybe one day the true owner will realize that he had left money in the house and come back for it. Not coming back for the money could only be attributable to two causes:
- The loser has forgotten about the money. In this case, the finder may not keep it since the loser never intentionally gave up hope of finding it. If at some time in the future he remembers about the money, he may recall where he put it and come back to claim it. Thus, the money is still the property of the loser. In this instance, Hershel should leave the money in place as long as he retains residence in the house (Sma 262:12).
- The loser remembers that he hid the money, but he cannot recall where. In this instance, we may assume that when he realized that he cannot remember where he put the money, he would give up hope of ever finding the money again, and the money is hefker, ownerless. In this situation, Hershel would be allowed to keep the money (Shulchan Aruch Choshen Mishpat 260:1 as understood by Pischei Choshen Vol. I, pg. 282).
We see that returning lost items is a beautiful and important mitzvah, and that, sometimes, the details of the halacha are fairly complicated.