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Tazria-Father found a Lost Object and Passed Away

 

Question

About twenty years ago my father was traveling on a bus in Israel and found an envelope containing twenty one-hundred-dollar bills in the overhead compartment. He tried very hard to locate the owner but all his efforts failed. Since that time he always kept the envelope and informed us that the money is not his. Recently, my father passed away. Do I have to continue holding on to the envelope or can I take the money for myself since by now the owner probably gave up hope of ever recovering the money?

Answer

Your father acted very properly and your question is very well taken and not simple at all. Let us explain.

Before we can answer your question we need to introduce several concepts that are the basis for the laws governing lost objects.

When one finds a lost object the first and foremost question is whether the owner is aware of his loss and gave up hope of recovering his lost object, a state which is called ye’ush in the Gemara. If the owner is aware of his loss and gave up hope, since there was ye’ush the one who finds it may keep the object for himself and he is not obligated to search for the former owner. It is a good thing to go further than one’s obligation and act lifnim  meshuras hadin and try to return it, but one is not obligated to do this and if he tries and fails to identify the loser he may keep the lost object for himself.

However, if the owner is either unaware that he lost the object or he is aware that he lost an object but he still hopes to recover it, the finder may not keep it for himself and he must try to return it.

The Gemara further says that if the lost object has identifying features we assume that the owner does not give up hope of recovering his lost object. The reason is because the owner expects the finder to publicize the fact that he found a lost object, as he is obligated to do, and the loser will prove that it is his by informing the finder of the identifying features. For example, in your situation if your father publicized that he found money, as he was supposed to, the owner could prove he was the loser by saying that there were twenty hundred-dollar bills and your father would return the envelope to him.

Applying this to your father’s situation, since he found a lost object that had identifying features he could not keep the money for himself and he had to publicize the fact that he found money, which he did. Until the owner repossesses his lost object the Torah imposes on the finder the status of a shomeir, a watchman for the owner, and he is obligated to take care of the lost object in a manner that will ensure that it is preserved for its owner.

Even after a while, when we assume that the owner gave up hope of ever seeing the money again, your father could still not keep the money for himself since it came into his hands before the owner despaired of recovering the money, a concept called by the Gemara be’isuro oso leyodei. Furthermore, since what he found was money, he was not even allowed to use the money and write down the identifying features and note that he owed the money to the one who could tell over the identifying features. Therefore, everything your father did was exactly correct and until he passed away his relationship to the lost object was that he was a shomeir of the money for the loser.

Now that we have determined your father’s status we must determine what status you have and what you can do with the lost money, assuming that by now, twenty years after the money was lost, the loser despaired of ever recovering his lost money.

Strangely, your question is not discussed in the Gemara or in the Shulchan Aruch and its commentaries.

In order to answer your question we must begin by analyzing why the finder of a lost object cannot take possession of the object once we can assume that the owner gave up hope of recovering it since at that time there was ye’ush. The Rishonim have two approaches. The approach of the Ramban (Milchamos on BM 26) is that since the finder has the status of a watchman for the true owner, we view the lost object as remaining in the possession of its owner and ye’ush does not affect an object that is situated in its owner’s possession. Therefore, from the standpoint of halachah, it is as if ye’ush never took effect. The second approach, which was advanced by Tosafos (BK 66A hocho), is that ye’ush is effective but it cannot remove the finder’s prior obligation to return the lost object.

Since these are the explanations of why your father could not assume ownership when the owner gave up hope, we must consider how each of these approaches affects you. If we follow the approach of Tosafos it would seem that you could take possession since your father’s obligation was his own personal obligation and you never were obligated to return the object as long as he was alive. Upon your father’s death, since the owner already gave up hope you never became obligated to return the object. Similarly, according to the Ramban, since when one passes away he ceases to have any possessions, it would seem that ye’ush could take effect upon death and since you took possession after ye’ush you could keep the money like anyone who finds a lost object after the owner gave up hope of recovering his lost object.

However, there are two sources that indicate that you cannot take possession and that you bear your father’s obligation.

One source is a Gemoro (BK 111B) that discusses stolen property. When one steals an object and sells or gives it to someone else, after the victim gave up hope of recovering his object, the buyer is not obligated to return the stolen object itself. Just like one may keep a lost object that he found after the loser gave up hope of getting his object back, so too one may keep a stolen object that he acquired after the victim despaired of recovering his stolen object. However, the Gemoro rules that even if the victim despairs of recovering his stolen object and then the thief passes away, the thief’s children do not acquire the stolen object. By analogy to lost objects, this implies that even if the finder passes away after the loser gave up hope, the finder’s children do not acquire the lost object.

The second source is the Rosh’s (BM 2, 9) explanation of the Gemoro (BM 26A) that says that if a passer-by discovers an object in an ancient wall he may keep it, because we assume that it was left there by the Emorites when Yehoshua conquered Eretz Yisroeil. The Rosh explains that the reason he may keep it is because the Jewish owners of the wall over all the centuries never acquired the hidden object. The first Jewish owner did not acquire it since it belonged to the entire Jewish nation by virtue of Yehoshua’s conquest of the land, before the land was parceled out. Since the entire Jewish nation was unaware that their object was lost they never actually gave up hope of finding the object. Similar to what we discussed earlier, the first Jewish owner of the wall could not assume ownership of the object since it entered his possession prior to its owner’s ye’ush.

The Rosh says that the reason the one who finds it over a thousand years after Yehoshua’s conquest can keep it is because just like the first Jewish owner did not become its owner so too his descendants never became the owners. The Rosh does not offer a rationale for his statement, but it seems to indicate that the descendants have the same relationship to the lost object as their ancestor did, which would bear on your question.

However, over the course of a thousand years we can assume that the wall was sold. The Pilpula Charifta argues that this explanation of the Rosh indicates that even if the wall was sold, the purchaser did not acquire the hidden object. This shows that the reason subsequent owners did not acquire the lost object is not because of inheriting a forbearer’s obligations, since that does not apply to subsequent purchasers of property who did not acquire the hidden object. Many commentators, including the Nesivos (262, 1), the Chazon Ish (BK 18, 4) and Shiurei Reb Shmuel (BM 2, 5), understand that the Rosh only ruled that the descendants did not acquire the lost object by virtue of the fact that it was in their wall (kinyan of chotseir). But if they had discovered the lost object and picked it up for themselves, they would have acquired the lost object, regardless of the fact that it was in their ancestor’s wall prior to its owner’s ye’ush.

We should note that even though we don’t have any proof that you cannot take the lost object, we also do not have any proof that you can, since in the case of the Rosh the first owner of the wall never picked up the lost object and never had any responsibility to return it to the entire Jewish nation. Rather, it just sat in his wall. Therefore, it may be that only in this case his descendant can take the lost object. But in your case, where your father picked up the lost object and became obligated to return it, perhaps you cannot take the lost object even after his death. Moreover, we still have the proof from the analogy to theft that you cannot acquire the lost object.

In order to determine whether one can derive the law concerning inheriting lost objects from the law concerning stolen objects we must understand the rationale of the law concerning inheriting stolen objects. The Nachal Yitzchok (39, Anaf 1 vehanireh le’aneyus da’atei), Levush Mordechai (BK 32) and Even Ho’ozel (Geneivo 5, 3 u’veikor) all explain that the reason that the Gemoro maintains that the inheritor does not acquire the stolen object is because the nature of inheritance is that the inheritor and his forbearer’s ownership are considered as one continuum. If one follows this approach, the same is true when one inherits a lost object.

Following this approach, you too cannot take the money for yourself, since it is as if the ye’ush transpired after the lost object entered your possession. Not only can you not take the money for yourself, but you even assume your father’s status of a shomeir, which is the reason why others may not take the lost object either.

The Chazon Ish (BK 16, 1-2) was also troubled why the inheritors cannot take possession of a stolen or lost object. He explains that the reason is because all the inherited possessions are collateral for the obligation to return the object to its owner. Therefore, they cannot take the lost object for themselves since they are obligated to pay for it. It would seem to follow that if the deceased did not leave any inheritance besides the stolen or lost object the inheritor could take the object for himself since the owner already gave up hope.

We should note that in the Zichron Shaul (3, page 114) the Chazon Ish’s nephew wrote that he asked the Chazon Ish your question and the Chazon Ish ruled that the inheritors continue their father’s status until Eliyohu comes and identifies the loser. What we wrote above would explain the Chazon Ish’s ruling.

In conclusion: You may not keep the money for yourself and you have to continue what your father did.

 

 

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