One of the fundamental questions relating to returning lost property is whether the item is actually lost or not. Of course, a lost item (an aveida) needs to be returned, whereas an item that is not lost must be left alone: We only have the right (or obligation) to handle another’s property when the Torah commands or allows us to.
But what exactly is considered lost? How do we determine if an item should be picked up and returned, or left for the owner? What categories of places does halacha recognize, and how might the status of an item change? Does an owner’s negligence render his property lost, or can it imply his abandonment of the item?
These questions, and others, are discussed below.
Location and Manner of Placement
Defining ‘lost’ is based on two factors: location and manner of placement.
Beginning with the latter, any item that has clearly been accidentally dropped is considered lost, irrespective of its location. Usually, we can determine if the item was dropped accidentally by the manner of its placement.
If an item looks like it was intentionally placed in a particular location, then the assumption is that the item is not lost. Taking it or otherwise changing its location would harm the owner, since on returning to retrieve his item he will find it missing. It may therefore not be touched (Shulchan Aruch, Choshen Mishpat 260:9).
There are, however, two ways in which even an intentionally placed item can become an aveida. One way is if we have grounds to presume the owner has forgotten his item, effectively making it lost to him. We evaluate this is by considering the item’s location (see below). Another factor is whether the item’s intentional placement is a certainty or a matter of doubt. Sometimes, the question of whether the item was accidentally dropped or intentionally left behind is unresolved.
The principle guidelines, as they emerge from the Shulchan Aruch and Rema (260:9-10), are as follows:
- Makom Hamishtamer (a well-guarded, safe location)
If the location is a safe place for keeping items (Shulchan Aruch), or a place in which it is standard practice to leave items behind for future collection (Sema), we should not assume that the owner has forgotten his item. Therefore, it is not permitted to take the item or move it, even when it is unclear that the item was left there intentionally, and it might have been dropped. If the item was placed there intentionally, taking the item will cause the owner loss or inconvenience.
An example of such a place is the coat rack of a shul.
If, however, the item is seen repetitively over a period of time, indicating that it has indeed been forgotten, such as a scarf seen on the shul coat rack for more than a week in the winter, then it gains the status of an aveida (See Shulchan Aruch 260:1; Shach 261:1; Sema 262:12; Shulchan Aruch HaRav 262:12).
- Makom Mishtamer Ketzas (a somewhat guarded location)
The Rema (260:10), based on Tosafos and others, states that if an item is found in a partially guarded place and it has a siman, it should be taken and returned (by means of announcement) to its owner.
Since the place is not entirely safe, there is room to believe that the item has been forgotten (Tosafos, Bava Metzia 25b), so that taking it (to return it to its owner) is for the overall benefit of the owner (Nimmukei Yosef 14a; see also Ran, who rules that if the item was certainly left intentionally, one should leave it as is). The same ruling will apply if the identity of the owner is known, so that the item can be easily returned.
If, however, the item may have been left intentionally and has no identification mark, and the identity of the owner is unknown, one should not touch the item, since taking it will mean a certain loss for the owner, while leaving it gives the owner with a chance of retrieval.
An example of this category of location is right next to a building in a safe neighborhood frequented by frum Jews. A communal place frequented principally by Orthodox Jews, such as a shul or mikva (depending on who frequents the mikva), may also be considered somewhat guarded.
- Makom She’eino Mishtamer, an unguarded location.
Since nobody intentionally leaves his property in an entirely unsafe place such as a main thoroughfare, any item found in such a place is considered an aveida. Indeed, even if the item was initially placed there with intent, the owner has surely forgotten about it (Ran).
If the item has a siman, it must therefore be declared and returned to its owner. If not, the halacha will depend on whether or not we can assume the owner has already become aware of the loss, and given up hope of retrieval. If his knowledge and subsequent ye’ush can be assumed, the finder may keep the item for himself.
The other way in which an intentionally placed item becomes an aveida is if the nature of its location unexpectedly changes from safe to precarious. Although the owner may have placed his item in a safe place, it has now become an aveida due to the immediate threat of loss (Shulchan Aruch 260:11).
An example of this is if a somewhat expensive pen is left in a Beis Midrash while the owner goes out for lunch. In the meantime, the Beis Midrash is cleared of all students because a cleaner has come to clean. If the cleaner is not known as reliable, the pen has transferred from a halachically safe location to one that is at least somewhat precarious. It should therefore be taken and returned to its owner.
Even if the pen has no siman, its owner can be determined by checking who comes back to the Beis Midrash to look for it.
The Rambam (Aveida 11:11), as cited by the Shulchan Aruch (Choshen Mishpat 261:4), writes: “A person is not obliged to assist someone who willfully disposes of his possessions. […] If he threw his purse into the public domain and left, this is a case of willful disposal of property, and even though the onlooker may not take the item for himself, he is not obliged to return it to its owner.”
According to the Rambam and Shulchan Aruch, cases of willful negligence do not obligate the finder to return the item, yet do not permit him to take the item for himself. The Vilna Gaon (261:9) explains that in this opinion, taking the item will constitute an act of gezel. The Rema, on the other hand, cites the Tur who maintains that an aveida mida’as, property that was willfully disposed of, gains the status of hefker, and may be taken by whoever finds it.
Halachic Rulings and Proofs
The Beis Yosef strongly upholds the opinion of the Rambam, explaining that the negligence of an owner is not sufficient grounds to assume an act of hefker. The Shach, however, sides with the Tur and the Rema. His reasoning is that the act of willful disposal proves the intent of an owner to abandon his property, rendering the item hefker. He goes on to prove the general rule that whenever we can assume the intent of an owner was to abandon his property, it indeed becomes hefker (see Tosafos, Shabbos 18b and Bava Metzia 30b).
There are sources (see Shach, but see Ketzos HaChoshen who defers the proofs) indicating that a willful aveida is indeed hefker, yet others (see Ketzos HaChoshen, noting a passage in Bava Basra 87b) which suggest that an aveida mida’as is not hefker. The poskim resolve the different sources by suggesting that the halacha depends on the strength of the assumption we can make.
If circumstances prove that the intention of the owner was certainly to abandon his property, the item becomes hefker and it is permitted for the finder to keep. This will be the case for the Gemara in Bava Metzia 23b, where we find that a barrel left open (and exposed to the elements) is an aveida mida’as, and its finder can keep it for himself (Rashi).
In other instances, however, the assumption is less strong. For instance, the case noted by the Ketzos (Bava Basra 87a) relates to an instance in which a person gives an item to a minor, rendering it an aveida mida’as. While handing an item to a minor shows a certain disregard or irresponsibility concerning property, but it does not amount to actually abandoning it. Sometimes convenience coaxes us into taking risks and negligence, as the Beis Yosef explains, is not abandonment.
According to this reasoning, the Rambam and the Tur argue over our assessment of the owner’s intent, rather than whether or not an act of willful disposal can be considered hefker. A number of commentaries follow this line of reasoning (see Beis Yosef; Machaneh Efraim, Hefker 6; Beis Haleivi 1:24).
Thus, the Rambam (Aveida 11:11) notes a case of leaving a purse in the public domain, placing it together with a case of leaving a cow in an unlocked shed. Since neither case is a sure loss, we deem them acts of negligence but not of abandonment. On the other hand, leaving a barrel completely open exposes it to the poisons of snakes and insects (Rashi), so that nobody in his right mind would ever again drink from the potentially poisoned barrel. Since the implication is sure loss, we view the act as abandonment and not just negligence.
A practical application of this is an item found in the garbage bin, awaiting collection. If it is plausible that the item was dropped inadvertently, such as small items that can be swept up accidentally, it is an aveida and should be offered to the owner for return (Shulchan Aruch 260:11). The same is true of an expensive item that would never be thrown away; its presence in the garbage points at a naughty child more than an act of hefker.
But if circumstances, such as size, placement or condition, indicate that the item was thrown away intentionally, the Rambam might concede that the finder can take it for himself. This is in accordance with the simple rendition of the Gemoro (Bava Metzia 25b), from which the Shach supports the opinion of the Tur.
Moreover, we can also differentiate between different types of public domain. Leaving a purse for a short time in a quiet town square is an act of negligence, but cannot be compared to leaving it on the Jerusalem-Tel Aviv thoroughfare. Similarly, if an owner willfully leaves an item at a station before boarding the train, the act is clearly one of abandonment and not mere negligence, since he has no way of coming back. In these and similar cases, the Rambam will agree the item is hefker and may be kept by the finder.
An interesting exception to the rule of aveida mida’as is a case in which someone wishes to break his own property. If in a rage somebody throws a glass dish from a window, a passerby may not catch the dish and keep it for himself. The reason for this is that the owner of the dish has not abandoned his dish. Rather, he wants to appease his anger by smashing it (Machaneh Efraim).
Based on the Gemara (Sanhedrin 48a, referring to utensils thrown into the grave with their departed owner), it emerges that passersby will be obligated to save the utensil from breaking, if possible, which is for the owner’s overall benefit. Furthermore, they must not return it to its owner until he has calmed down since they have a din of a shomer on the object.