Question
On a recent evening, I was walking near my house and lying on the sidewalk was a brand new child’s scooter. In order to make sure that no one would trip over the scooter in the dark I stood it up against a wall. It is a place where kids leave their old bikes, but since all kinds of people walk in the area it is definitely not safe to leave a brand new attractive scooter lying overnight. Was I supposed to take the scooter home in order to safeguard it and put up a sign that I found it? Even if not, you wrote previously (Teruma-Found a schoolbag on a park bench) that one who picks up a lost object becomes liable for its loss so did I become responsible for the scooter by virtue of having moved it?
Answer
Both of your questions depend on the status of the scooter. Since almost certainly the scooter was placed there and did not fall there, the scooter has the same status as any object of value that is found placed in an unsafe location.
This issue is discussed by the Gemara in connection with the mitzvah to return lost objects – hashovas aveido – in several contexts. One situation (BM 21B) is where food was left in a place where people may assume that they may take it. Another (BM 25B) is where a person left an object in a garbage dump where the sanitation workers eventually dispose of anything that is found there. A third (BB 87B) is where a person gave money or an object to an underage child who is not as careful as an adult in caring for his possessions. In all these cases, the Gemara rules that the finder is not commanded to pick up the lost object.
Similarly, when an object is in the physical possession of its owner who is not caring for it properly, one is not obligated to intervene. Thus, the Rambam (Gezeilo Ve’aveido 11, 11) rules that if one sees a cow in a barn and is aware that the owner unwisely left the door open, he is not obligated to close the door to ensure that the cow does not escape. Similarly, the Gemara (BM 23B) says that one does not have to care for a barrel of wine that was left open by its owner, thereby allowing snakes and bugs to enter.
The Gemara classifies an object that is found in this manner an aveido mida’as – an object that was rendered lost by its owner. The Rambam (ibid) derives from the words used by the pasuk which commands one who finds a lost object to return it to its owner, that this class of objects is excluded from this command.
Since when one gives a child an object it already is viewed as an aveido mida’as, we can say that the answer to your first question is that you were not obligated to return it. We should note that this is the difference between our case and the case of the lost schoolbag that we discussed previously. The lost schoolbag was an object that the finder under normal circumstances has a mitzvah to return since the owner was a high school girl (an adult) who apparently forgot her schoolbag where it was found. But in your case, there was no mitzvah to return the scooter.
Turning to your second question, we should note that in order to rule that you are liable in case the scooter eventually was not found by its owner we would need to decide two issues. First, we would need to decide that even though you were not commanded to care for the scooter, nevertheless, you become liable if you start to care for the scooter since physically it was a “lost object.” The second issue is to determine that the act that you did is considered as having started to care for the scooter.
Thus, our first issue is whether anyone who begins taking care of an aveido mida’as becomes responsible for the lost object by beginning to care for it.
The Gemara does not discuss this issue in the context of an aveido mida’as but only in a different case of one who is not commanded to return a lost object.
The Gemara (BM 30, B) rules that a distinguished individual who, because of his dignified status, would not retrieve his own object if it were lost, is not commanded to return someone else’s similar lost object. For example, a distinguished rosh yeshiva who would not carry his own son’s lost bike on the street is not obligated to return another person’s lost bike since it is beneath his dignity. However, the Gemoro recounts that Rabba ruled that his very distinguished student, the Amora Abaye, became obligated to return a lost goat by throwing a clod of earth at it. Thus, even though Abaye was not originally obligated to return the goat, by virtue of his throwing a clod of earth at it, he became obligated to ensure that the goat was returned to its owner even if that required him to carry the goat on the street, something he would not do otherwise.
However, there are two points to consider. First, even in the case of the distinguished individual there is a major dispute why Abaye became required to return the goat to its owner. Some, including, according to many, the Rambam (Gezeilo Ve’aveido 11, 14) and the Shulchan Aruch (CM 263, 2), understand that it was because Abaye began returning the goat to its owner that he became obligated to complete the job. (They understand that he threw the clod of earth in order to coax the goat to return to its owner.) According to these Rishonim you have an issue.
However, many Rishonim (including the Rosh BM 2, 21 and according to the Sema (263, 4) the Rambam) understand that the reason Abaye became liable is because his action caused the goat to become more lost. According to this opinion, merely doing an action that is helpful does not impose an obligation on the finder to complete the job by returning the object to its owner. Thus, according to the latter opinion there is no basis for requiring you to return the object since you were not required at the outset to return it.
Moreover, there is a further dispute whether the situation of a distinguished individual who began restoring an object to its owner (and is therefore obligated to complete the return of that object) is equivalent to that of one who began returning an aveido mida’as. The Gemara (BB 88A) at one stage understood that they are equivalent and the Lechem Mishna (Gezeilo Ve’aveido 3, 15) maintains that according to one approach of the Beis Yosef (Commentary to Tur CM 263) in his understanding of the Rambam, that equivalency remains at the conclusion.
However, the Terumas Hakrey (siman 263) and the Divrei Mishpot (end siman 261) for different reasons maintain that even those who rule that a distinguished person must continue, agree that when one acts to assist the owner of an aveido mida’as to recover his lost object he is not liable if he fails to complete the job of returning the lost object.
The rationale of the Terumas Hakrey is that the only reason a distinguished individual is required to complete the task is because when he begins caring for the lost object he shows thereby that he is willing to forego his honor in order to return the lost object. Since he is willing to forego his honor there is no reason to free him from the mitzvah to return a lost object and therefore, he is obligated to complete the task. The presumption is that really a distinguished individual has a mitzvah to return a lost object just like anyone else. It is only because the Torah does not require a person to act beneath his dignity in order to return a lost object that he is not required to perform the mitzva. (This is in fact stated explicitly by the Gemara in Brochos 19B.) Thus, when he shows that this is not beneath his dignity, his waiver from the mitzvah is rescinded.
This, however, contrasts with an aveido mida’as where inherently there is no mitzvah of hashovas aveido since the owner caused it to become an aveido. Since there is no mitzvah to return an object that is classified as an aveido mida’as one does not create a mitzvah (and thereby assume responsibility) by performing a helpful action.
The Divrei Mishpot has a very different approach. He understands that perhaps those who rule that the distinguished person must return the lost object that he began returning, also rule that the finder who began returning an aveido mida’as must return the aveido mida’as. However, in contrast with common lost objects where the finder automatically assumes the status of a watchman (shomeir) for the lost object, one who finds an aveido mida’as does not have the status of a watchman since the finder was not required to pick up the lost object in the first place. This status in the case of common lost objects is derived from a pasuk in Chumash (see Rashi BK 56B).
We have seen that according to many opinions you did not assume any responsibility for the scooter by standing it up. First, many maintain that even a distinguished individual is not obligated to continue. Second, according to many, even those who rule that a distinguished individual must continue, agree that with an aveido mida’as one is in any case not liable for any ensuing loss.
There are two more reasons why you may not be responsible. One is that many maintain that if one does not perform a kinyan on a lost object he does not assume the status of a watchman and perhaps you did not perform a kinyan on the scooter. The other reason is that many maintain that in order to assume the status of a watchman the one who picks it up must do so with the intention to return the object to its owner. Since the last two reasons require further discussion we will not study them at the present but based on all these four factors you can rest at ease that you did not become liable for the scooter.
