Of the many halachos that come into play as we approach the Pesach festival, one set that almost inevitably comes up is that of hashavas aveidah, returning lost property.
A thorough cleaning of a house, and certainly of public institutions of all kinds, invariably turns up property whose ownership is not known. Having discovered at home an item that does not belong to any member of the family, what measures should be taken to get it back to its owner?
We take the opportunity to open up a discussion of the laws of lost property in general—among the most practically relevant halachos in Choshen Mishpat. Though the matter of lost property comes up frequently, we may be unaware of the potential Mitzvos and possible pitfalls that arise.
Which Torah Mitzvos are involved in returning lost property? What are the exemptions from the obligation? How does the Mitzvah apply to preventing general losses? How does the owner’s giving up hope of retrieving the item affect the situation? And when must one go beyond the letter of the law?
We will discuss these matters, and more, in the present article.
The Basic Mitzvah
The Torah obligates us to return lost property to our fellow Jew in two Mitzvos: a positive command and a negative command. This is taught in the passage, “You shall not see the ox of your fellow or his sheep straying, and you ignore them; you shall surely return them to your fellow” (Devarim 22:1).
The following verse in Devarim teaches the obligation to watch another’s lost property until the item is returned, and a third passage repeats the prohibition against ignoring lost property, and extends the obligation to all items.
The two Mitzvos are listed in the Rambam’s Sefer Hamitzvos (Aseh 204; Lo Ta’aseh 199), and are mentioned in in Mishna Torah (Aveida 11:1). The Shulchan Aruch (Choshen Mishpat 259:1) likewise mentions the obligation to return lost property. The Gemara (Bava Metzia 26a) further adds that if somebody unlawfully takes lost property for himself, he also transgresses the prohibition of theft (gezel).
The positive and negative aspects of the Mitzvah are not interdependent. For examplr, the negative aspect of not ignoring an Aveida is transgressed when we see an item of lost property that the Torah obligates us to return, and we ignore it. However, the positive command, according to Rashi (Bava Metziah 26b) and others (see Ramban, Bava Metziah 30a), applies only to someone who has already picked up the lost property. This distinction is also ruled by the Sema (Choshen Mishpat 259:1)—though the ruling is disputed by the Taz.
Exemptions from the Mitzvah
The Gemara (Bava Metzia 30a) extracts from the word of the verse, “and you shall ignore,” that it is sometimes permitted, and sometimes even required, to ignore lost property. Three instances are given.
- A kohen may not return an Aveida if it requires becoming tamei, ritually impure, for instance if the lost property is in a graveyard.
- One need not return lost property if returning it involves personal financial loss. An example of this is when returning another’s lost property would prevent a person from retrieving his own lost property. The rule is that a person’s own property takes precedence (as ruled in Choshen Mishpat 264:1). However, if the loss is not certain, it is correct practice to return the lost property, even at one’s own expense (see Shulchan Aruch and Aruch HaShulchan 264:1).
- One need not return an Aveida if returning it involves a denigration of one’s personal dignity. The measure of this, as given by the Rambam and Shulchan Aruch, is the approach to one’s own property under similar circumstances: One does not have to return another’s lost property when one would refrain from retrieving one’s own property, if the reason for this is that it is beneath his dignity (see Choshen Mishpat 263:1; we will please G-d expound on this matter in the future).
Concerning the third instance, the Gemara notes that once the finder picks up the item and begins to fulfill the Mitzvah of returning it, he loses the exemption and becomes fully obligated to complete the Mitzvah. This does not, however, apply to the second exemption, where there is financial loss.
As the Aruch HaShulchan (263:2) explains, the reason that picking up the item obligates a person to return it, is that the exemption, as derived from the words “and you shall ignore,” applies only to the negative commandment. Once in the finder’s possession, the positive Mitzvah obligates him, and the undignified circumstance no longer provides as exemption.
In the case of personal financial loss, however, the exemption is derived from a general teaching (in the name of Rav Yehuda), which states (based on the verse “There shall be no destitute among you”): “Your property comes before anybody else’s.” In this exemption there is no distinction between someone who has already begun fulfilling the Mitzvah and somebody who has yet to begin. Even after picking it up, he may put it down and retrieve his own instead.
Turning Out the Lights
The Mitzvah to return lost property is not restricted to items that have been lost. The obligation applies equally to items that are at risk of damage or destruction (though it can be argued that in this case only the negative prohibition of not ignoring another’s property applies, and not the positive obligation of returning it). Saving a fellow Jew’s property from harm is a religious obligation; one who refrains from doing so transgresses the prohibition of ignoring another’s loss.
The Gemara thus teaches that if one finds a stream of water flooding a field, there is an obligation to save the field from damage (Bava Metziah 31a). Similarly, if one finds his fellow’s cow entangled in a thicket of thorns, there is an obligation to save it from damage (ibid.). These examples may seem remote, but in fact this form of hashavas aveida is one of the most common and simple opportunities to fulfil the Mitzvah.
For instance, Rabbi Akiva Eiger (cited in the Pischei Teshuva 266) writes that if a Jew acts as a guardian of an item for a non-Jew, and the item gets lost, a Jew who finds it has an obligation to return it to the Jewish guardian. Although the item itself doesn’t belong to the guardian, the fact that the guardian will be liable for its loss is sufficient to obligate the finder in its return. (Rabbi Akiva Eiger notes that a colleague disputed this ruling.)
More common instances are coming across a heater or air conditioner left on by mistake (say, in an empty house or office). Turning off the appliance fulfils the Mitzvah of returning lost property, especially for items such as air conditioners whose use of electricity can exceed a perutah. For light bulbs, where the potential loss might be less that a Perutah, the Torah obligation of hashavas avedah will not apply, yet some write that there remains a Mitzvah of saving from loss (see Machaneh Efrayim, Gezeilah 1; Minchas Chinuch 257:7).
Giving Up Hope—Ye’ush
Sometimes, the expression “finders—keepers” applies even in Torah law. The classic case is that of ye’ush, in which the owner of the item gives up hope of retrieving it before the finder finds it.
If an owner hopes or expects to get his item back, his ownership remains in force. The fact that the item is physically lost does not affect his ownership and, as a result, the item must be returned. If, however, the owner has given up hope of retrieving the item, then the Torah regards his ownership as being weakened, to the degree that a finder who finds an item following ye’ush can take the item for himself, since the Mitzvah of returning the property no longer applies.
According to Rashi (Bava Metzia 21a, 22b, 27b; Gittin 39b) ye’ush is actually hefker, meaning that when a person gives up hope of retrieving his item, it leaves his ownership entirely. The Ketzos Hachoshen (406) and Nesivos Hamishpat (262), on the other hand, agree that even after ye’ush, the original owner retains his ownership. The item is detached from its owner only to the extent that another may acquire it for himself.
A practical ramification of this dispute is whether someone who has given up hope can change his mind without making a new kinyan. According to Rashi, one cannot make a purely mental retreat from ye’ush. Once the item has left a person’s ownership, it cannot return by means of a purely mental act. This ruling is given by the Chazon Ish (Bava Kama 18). But the Nesivos, who is joined by the Beis Haleivi (3:48), rules that one may mentally retract from ye’ush, and no act of kinyan is necessary.
What Constitutes Ye’ush?
What constitutes ye’ush? The simplest way of knowing an owner has given up hope of retrieving his property is hearing him say (in the words) of the Gemara, “Woe is the loss of money” (see Choshen Mishpat 262:5). A modern equivalent is finding someone shopping for a new hammer, and telling the shopkeeper about losing his old one. Someone who finds the old hammer after the owner has given up hope may keep it for himself.
Another instance of ye’ush is when the appearance of the item proves that it has been lying in its place of loss for a long time (Shulchan Aruch, ibid.). For instance, if moss has grown over a lost item, there is no Torah obligation to return it to its owner, even if his identity is known.
A slightly more complex case in which we assume ye’ush is finding a dropped item with no personal identification sign on it. This, however, relies on the fact that the owner knows of his property’s loss, and has, due to the lack of identifying signs, given up hope of retrieving it. We assume this to be the case with items that are heavy or expensive, such that people generally note their presence or absence (Shulchan Aruch 262:3).
The classic example given by the Gemara (Bava Metzia 21b) is coins, which in those times it was assumed that people constantly touch them while in their pockets, making them quickly aware of their loss. Contemporary authorities discuss whether this applies today, a point we will please G-d discuss in the future. A modern day example is a wrist watch, which is looked at frequently by its owner. If a sign-less watch is found (in a manner indicating it was inadvertently dropped), it can be assumed that the owner knows of its loss, and it can be kept by the finder.
Additionally, if an item is found in a public thoroughfare where most passers-by are not Jewish (or people that don’t generally return lost objects), we assume the ye’ush of the owner (Shulchan Aruch 259:3). Once more, this is on condition that the owner’s awareness of the loss can be assumed.
Beyond the Letter of the Law
All of the above, however, describes the strict Torah ruling.
The Gemara (Bava Metzia 24b), and thus the Rambam and Shulchan Aruch (259:5), teach that in spite of the formal permission of the finder to keep the lost item, it is right and proper to return the item despite the prior ye’ush of the owner. This practice is lifnim me’shuras hadin, beyond the letter of the law. The Rema, however, adds that that a finder who is poor need not go beyond the letter of the law to return lost property to a wealthy owner.
In ordinary cases, the concept of lifnim me’shuras hadin does not involve an actual obligation. One may, if one wishes, go beyond the letter of the law to perform an act of righteousness that the Torah does not require. In this case, however, the Shach (Choshen Mishpat 259:3) cites the Mordechai (There are other Rishonim who disagree.) that if the finder is rich and the owner poor, we enforce the return of the item to its owner.
This requires some clarification. By definition, the very concept of going beyond the letter of the law appears to be a voluntary act of righteousness. How can an essentially voluntary act become enforceable? Furthermore, if it is compulsory, how can there be a difference between the rich and the poor? Are poor people exempt from the performance of Mitzvos?
When a person performs a deed classified as lifnim me’shuras hadin, he is not only performing a simple undifferentiated good deed, but is performing the actual Mitzvah of the Torah—in our case returning lost property. As the words shuras hadin imply, the Torah draws a line beyond which the Mitzvah ceases to be obligatory. However, if a person goes beyond the line, he still fulfills the basic Mitzvah, only that he does so beyond the obligation line.
With this in mind, we can understand that there are occasions in which the Sages saw fit to extend the obligation line of a Mitzvah. In our case, Chazal enacted that one must return lost property even after ye’ush (if the finder is wealthy), thereby extending the obligatory nature of the Mitzvah. This explanation is stated briefly by the Ketzos Hachoshen (ibid. 3). Ordinarily, extending a Mitzvah past its boundary line is a matter of choice; in this case, Chazal saw fit to enforce it.
However, Chazal restricted this extension to cases when the finder is wealthy. If the finder is poor and the owner rich, the obligation line does not move from the Torah definition. If he finds an aveida after ye’ush, he can thus keep it for himself.
There are many more details of returning lost property that we have not discussed. Please G-d, we will address some of these aspects in the coming weeks.