Last week we began a discussion of the laws of hashavas aveidah, returning lost property. As noted, these laws are of importance the year round, but come into focus on Erev Pesach, a time when Pesach (and spring) cleaning often reveals lost property.
This week, we turn to the topic of a siman, a sign or mark (on a lost item) whose halachic importance cannot be overstated. Perhaps the majority of cases of lost property will be decided, at least to some degree, by the worthiness of the mark on the item.
We mentioned last week the concept of a siman as a means of determining whether or not an owner has given up hope of retrieving his property. This, in turn, is a function of the finder’s ability to return an item to its owner by means of the siman. Insofar as a finder will be unable to return the item, it follows that the owner loses hope of retrieving it, so that under certain circumstances, the finder is permitted to keep the item.
What constitutes a valid siman? How should an item of lost property with a sign be returned to its owner? What should we do with items that do not have a valid siman? What is the halachah of money that has a siman?
These questions, among others, are discussed below.
Declaring a Find
Having chanced upon a lost item under circumstances in which the item is clearly lost – for instance, an item that was dropped in the street, and which will get damaged, ruined or stolen if it goes unreturned (we will discuss the definition of lost items at another opportunity) – the first step in returning it is ascertaining the identity of its owner.
This is done by means of hachraza, publicizing. The finder has to publicize the find, in hope that the owner will prove his ownership by giving correct identity marks.
The Shulchan Aruch (Choshen Mishpat 267:3) rules that one should publicise the find in local shuls and batei midrash. The Sema adds that this should preferably be done between Mincha and Ma’ariv, so as not to disrupt the prayer service.
Today, the prevailing custom is to use a written sign in place of a verbal announcement. The sign must be placed in a conspicuous public place, to ensure the best chance that it will be noticed.
With the exception of small towns and villages, where the number of public institutions is small, the question remains where one needs to make the declaration. Today, many towns have dozens of shuls. If we consider greater Jerusalem as one town, the number will go well into the hundreds. Moreover, not all Jews attend shul. Perhaps the item was dropped by a woman, for example? The purpose of declaring the find is to enable anybody who might have lost it to reclaim it (see Mishnah, Bava Metzia 2:6, for how this was done in times of the Mikdash). What then is the limit to the obligation of declaring a find?
One way of making a fairly effective declaration is by advertising (for free) in a local paper. The Chasam Sofer (Choshen Mishpat 22) rules that placing an advertisement in a local newspaper is a valid means of declaration (he refers to lost property of a housemaid of whom the employer had lost trace). Though it is possible that the owner of the item is not a regular reader of the local paper, if he has lost an item and knows that lost property is advertised in certain local publications, he will make sure to read it in an effort to retrieve the item.
For items found close to a public spot, such as a bus stop, a convenient option will be to hang up a sign (where permitted) on the bus stop. This assumes that the person who lost the item will retrace his steps, and find the relevant notice.
The Need for a Sign
An aveidah can only be announced if it has a valid sign, by which the owner will be able to identify it, and claim it. In the absence of a sign, the lost item cannot be returned to its owner, for fear of returning it to the wrong person (inadvertently or otherwise). So what constitutes a siman?
A siman is a unique sign or mark, which will prove the claimant’s ownership of the item. A sign that is produced by mass production, even when the production is a limited edition albeit of which there are many other copies, is therefore not a valid siman (see Sema, Choshen Mishpat 262:28; Taz).
The idea of a sign is not merely a means to narrow the statistical chance of a mistake. A sign must be a positive proof of ownership; it must be somewhat unique. Thus, a white shirt with blue stripes, or collar size 15, and so on, is not a valid siman, since there are many other similar shirts in town. A valid sign for retrieving a shirt is only something that is truly individual – a distinctive stain, a tear, a mark, and so on.
This, however, is true only when we know of the existence of similar items in the vicinity of the find. If there are no similar items, for instance if we find an item of clothing that is not sold at all in the town where it was found, the brand itself can constitute a valid siman.
The question then is whether or not we need to be concerned for the presence of a like item in the area. In an age of globalization, the answer will often be yes—we are universally concerned for the presence of other like items in the area, so that a more specifically unique siman will be required.
To learn more about the nature and halachic details of simanim, it is important to visit another category of simanim – those used to identify a person who has died.
When a man dies we must be sure of his identity before his wife is permitted to remarry. When there are witnesses who can identify a body, the identification can be achieved by means of simanim. If, for instance, a body is found to have a mole in a particular place, and witnesses testify that a missing person had such a mole, this is a siman to identify it as the missing man, and to permit his wife to remarry.
What is a siman to give sufficient grounds for positive identification? The fact that both the missing individual and the dead body have a mole under the nose is not, it appears, conclusive identification: Perhaps somebody else died who had the same mole?
The Beis Shmuel (Even HaEzer 17:72) writes that if only one in a thousand (0.1%) have a similar siman (say, a particular mole), it is considered a valid proof of identity—a siman muvhak. Thus, if the occurrence is lower than this (even less than 0.1%), the siman is valid. The match-up of the missing person with the dead body, together with the unlikelihood of the dead body being somebody else, combine to produce a positive identification.
For returning lost property, a lesser level of simanim will be sufficient, so that if the chance is one in a thousand or lower, the siman will certainly be effective. In other words, if the sign on the missing item is rare—one in a thousand—it is considered unique enough to constitute a positive identification.
Another application is a lost item of clothing with a name tag sewn onto it. The name is a conclusive identification, since the chances of two people having the same name (in the same town) is less than one in a thousand. The finder therefore need not fear that there is another person in the town with the same name.
Lost Coins and Notes
We often find lost money—notes and coins. Can a siman help in the return of lost money?
A regular coin has no distinguishing signs. The fact that the coin was minted in 1996 or 2012 is not sufficient to identify the owner: there are many similar coins on the market (Shulchan Aruch, Choshen Mishpat 262:13), and the sign is not unique enough to constitute a siman.
In fact, the Shulchan Aruch (based on the Gemara) adds that even if a coin or banknote has an individual mark, such as a name or symbol that is etched or written on it, this does not constitute a valid sign by which to return money to its owner. The reason given by the Shulchan Aruch is that coins are constantly passed around from hand to hand. Given that coins are passed on, it may well be that the person claiming the coin lost a different coin with the same sign, and this coin was lost by somebody else.
Because money has no siman, we can assume the person who dropped it has given up hope of retrieving it, and the finder can keep the money for himself.
The Rema (Choshen Mishpat 262:13, citing the Ramban) adds that there are some simanim that are effective even for returning coins, such as a crack in the coin. The Ramban explains that since the crack is a unique mark, we no longer fear that the coin was passed on to someone else—just as we do not fear that someone who proves his ownership of an item has since sold it. We only fear this when we suspect that there are several coins around with the same sign.
The opinion of the Tur seems to be that no sign can ever be effective for a coin. Since coins generally pass from hand to hand, no sign is considered as conclusive proof of ownership. The Taz, however, implies that the Shulchan Aruch does not dispute the ruling of the Rema, and this is accepted as normative halachah.
A serial number on a banknote will thus constitute a siman. Though there is no obligation to announce that one has found banknotes (since the vast majority of people do not know the serial numbers of their notes), if someone approaches the finder and correctly gives the serial number, the note must be returned to him.
Furthermore, if money is arranged in a manner that shows its placement was intentional, the amount of money or its precise location is a valid siman (Choshen Mishpat 262:12; Sema). Location, however, is only a valid sign for items that do not regularly move around by being kicked or otherwise.
Additionally, Chazal and Poskim generally refer to coins in talking about money. If dropped inadvertently, there is no way for the owner to know how many coins he dropped. In the case of banknotes, however, an owner will often know how many notes there are in a bundle, such as notes from a bank, or notes folded one inside the other. If they are found in such fashion, the notes must be announced, and returned to whoever correctly states their precise amount.
Many of the lost items that we find are sign-less. Some examples of these are pens, cameras (though stored photographs can reveal the identity of the owner), towels, foods and so on. Barring a name tag or other unique mark, the description of such standard items, as explained above, is not a valid siman. What are we to do when we come across such a lost item?
Unlike money, we cannot always assume that the owner is already aware of their loss and that he has therefore given up hope of their retrieval. Therefore, though they cannot be returned (in the absence of a siman), the finder may not keep the item for himself. What should be done?
On one hand, if a finder doesn’t pick up the item, the chances are that it will be trampled or taken by someone else. Yet, picking it up is unlikely to benefit the owner as there must be a witness who can testify about the ownership. The Shulchan Aruch HaRav (Metzia 2) writes that due to the latter possibility, a person must pick up an item even when it has no simanim. This ruling is seconded by the Tehila le’David, and according to Rabbi Akiva Eiger (Bava Metzia 26, explaining the opinion of the Nimmukei Yosef), it emerges that even without the possibility of retrieval through testimony, there is an obligation to pick up the item.
Others, however, write that that there is no obligation to pick up an sign-less item, since there is no likely way of returning it to its owner. Rabbi Akiva Eiger (Bava Metzia 21b) notes that this opinion emerges from Tosafos, and while the Chemdas Shlomo (26a) is in doubt concerning this halachah, the Imrei Moshe (37:5) writes that this is the opinion of the Ran, and implies that one can rely on this in not picking up sign-less items.
Having picked up such items, many authorities maintain that subsequent ye’ush (giving up hope) of the owner does not permit the finder to keep the item. Picking it up obligates him to return it to its owner, and ye’ush does not exempt him of this obligation. This opinion is ruled by the Shulchan Aruch (262:3; see Sema 260:42; Rema 260:10).
Under these circumstances, the item must remain with the finder “until the coming of Eliyahu,” who will reunite owners of lost property with their lost items. Often it is possible to have the object evaluated and then use the object.
Leave Lost Property Alone
Today, it is possible that all agree that often there is no obligation to pick up relatively non-valuable, sign-less lost items, and that they are best left where they are. In our day and age, when standard items are mass produced by the millions, it is highly unlikely to find testimony that a dropped item belongs to a particular owner. It is therefore in the best interest of the owner to leave the item in its dropped location. This will allow him, upon discovery of his loss, to come back and search for the item. He has a slim but real chance of finding it. If, however, the finder picks up the item, the owner will be entirely unable to ever retrieve his property.
Because we have a clear evaluation of the owner’s da’as (his will) to the effect that he does not want his item picked up, it follows that the mitzvah of hashavas aveidah does not apply. In addition, since the most basic principle of the mitzvah is to help the owner retrieve his property, it follows that no mitzvah applies when picking it up is an obvious hindrance to this aim. It therefore seems that sign-less items should generally be left alone.
The Talmid Chacham Exception
Although we generally don’t return items of lost property without identification based on marks, the Gemara writes that for a talmid chacham we can rely on his identification even without there being identifying marks on the item. This applies to items that are not brand new, so that the owner will have a way of identifying them by means of tevius ayin (recognition) even without a siman.
Based on the ruling of the Rema (262:21), one must therefore pick up an item, even without simanim, when found in a place where talmidei chachamim are present, and announce it like a regular lost object. A talmid chacham (who is known not to lie) is trusted to recognize his object without any simanim—unless, as noted, the item is brand new.