I gave two shirts to the cleaners. After a few days I received my cleaned shirts back from the cleaners. After paying the delivery boy I opened the plastic and saw that I had received three shirts from the cleaners. I scrutinized them very carefully trying to determine which shirt was not mine, but I was unsuccessful. What do I do now? May I wear any of the shirts because I did give two shirts to be cleaned, or maybe I may not wear any of the shirts since perhaps the one I want to wear is not mine and I don’t have the owner’s permission to wear it?
A similar but halachically different case is discussed in the Shulchan Aruch. Since the case which is discussed in Shulchan Aruch and its derivatives occur quite frequently it is worthwhile discussing them briefly.
The case discussed is when someone gave one article into the cleaners and received one article in return but it is obvious that the object which was returned is not the one which he gave in. The Rama (136, 2), basing himself on the Terumas Hadeshen (319), rules that the recipient is not allowed to use what was returned to him since he knows that the object is certainly not his. The Ketsos Hachoshen (136, 2) adds that even if the customer waits a long time he still cannot use what he received. Even if the true owner gave up hope in the interim of ever receiving his lost item, nevertheless, the recipient may not use the object. The reason is that yi’ush (abandoning hope) must precede the article’s entry into the recipient’s possession. Since it did not, the recipient may not use what he received even after many years.
Based on the above, the Pischei Choshen (Aveido 4, 19 and the footnotes thereon) rules that if, for example, a person left his tallis in shul and when he returned he found a similar but different one in its place, he may take the one which is hanging in its place only if enough time elapsed so that most probably the owner of the article remaining gave up hope of getting back his tallis. The reason why the one who lost his tallis can then take the remaining tallis is because in this case yi’ush precedes the entry of the remaining object into the finder’s possession.
He adds further that even in the case of the Ketsos where the wrong object entered the loser’s possession before the owner was aware of his loss, if enough time elapsed that it is reasonable that the one who exchanged objects made up his mind that he agrees to the exchange, then the finder may use the object he found instead of the one he lost. The rationale is that we assume then that the one who exchanged objects actually means to give the finder his object in return for the one he took. When one wants to give away his object, there is no problem of the object having entered his possession before the owner gave it to him.
All the above is different from your situation because in your situation some of the shirts are yours and the question is which are yours and which is not.
In order to rule in your case we must introduce the concept of muchzak. We mentioned in a previous article that the most basic rule of Jewish monetary law is that when there is a doubt, the burden of proof rests with the one who wishes to change the status of an object. This rule is called hamotsi meichaveiro olov horayo. The rule applies when there are two people: the one who is the muchzak, the one who is holding the object, and the motsi, the one who wishes to obtain the object. The rule is that the motsi must bring proof in order to obtain the object. If no proof is brought, the object remains with the muchzak even if the muchzak is himself uncertain if the object is his.
In your case it is critical to determine whether you are a muchzak or a motsi. The reason why it is not obvious is that first the shirts were at the cleaners and not in your possession, and only later did they enter your possession.
Tosafos (Kesubos 20A) rules that the key determinant is where the object was when the doubt arose. It should be noted that even though the principle sounds easy, it is very complicated to apply since it is often not obvious 1] when the doubt arose and, 2] what determines where the object is. For example, the Poskim rule that if one borrowed an object and a doubt arose, we consider that the object was in the possession of its owner even though it physically was in the possession of the borrower when the doubt arose.
The issue of when the doubt arose was at the core of a major dispute in the beis din in Vilna four hundred years ago. The Shach claimed one way and his fellow dayanim claimed otherwise. In an attempt to persuade his colleagues, the Shach wrote (in two months!) the famous and basic sefer known as Tokfo Kohain.
In your case, the doubt arose when you discovered that you had received three shirts even though you should have received only the two you originally submitted. Since you had already received the shirts from the cleaner, we view the doubt as having arisen only after all the shirts were already in your possession. Therefore, even though you are uncertain which shirts are yours, you can choose the two shirts which you wish to keep and return the third one to the cleaner.
This is called tefisso kodem shenolad hasofeik. It is discussed at length by the Acharonim. See for example the Klolei Tefisso of the Nesivos printed after siman 25 in the Shulchan Aruch.
After you choose the two shirts you wish to keep, you have to return the third shirt to the cleaner if he is Jewish since it is a lost object and one must return lost objects. This is the mitzvah of hashovas aveido.
There is one final issue which pertains in general to lost objects, especially nowadays. The issue is whether one must take a lost object to the loser or does it suffice to inform the owner and let him collect the object from you. This is more pertinent today than in the past since means of communication are much more developed.
It turns out that this is the subject of dispute among the Acharonim, with many different opinions. (They are recorded in Mishpat Ho’aveido: 259, Sha’arei Tsedek 14.)
One opinion (Sha’arei Ziv: Nezikin 13) is that if you are aware of the identity of the loser before you bring the object into your house you have to take it to the loser. But if you brought it to your house first, it suffices to inform the loser. According to this opinion, in your case where you only became aware after the object entered your house, it suffices to inform the cleaner.
A second opinion (Binyan Shlomo: second hakdomo-Parshas Ki Seitsei) is that if the owner is within about four hundred feet you have to take it to him, but if he is further away it suffices to inform him. A third opinion, the Imrei Tzvi (Bava Kama 57), maintains that one must always return it to the loser.
Finally, Rav Moshe Feinstein (Dibros Moshe Bovo Metsiyo Perek 2, He’oro 53, also quoted this way in the Kuntress (answer 22) on Hashovas Aveido which is printed in Hashovas Aveido Kehilchosso) writes that it is reasonable to say that it always suffices if you inform the loser, in your case the cleaner.
In conclusion: You may choose the two shirts you wish to keep and inform the cleaner that he can come and pick up the third shirt.
It should be noted that if someone comes and claims the shirt from the cleaner, and then states with certainty that he had a similar shirt but the one at the cleaner is different from the one he gave originally, you will have to deal with that person. However, in the meantime you may wear the two shirts which you chose.