Question
I recently went to daven at the Kosel. Since I wanted to also daven mincha, I went over to one of the sinks to wash for mincha. Before washing I took off the three gold rings I was wearing and placed them on the sink. In the excitement of being able to daven at the Kosel, I forgot to take back my rings and went to daven.
When I finished, I realized what happened and immediately returned to the exact sink where I washed but they were no longer there. I went to the police in the hope that either someone turned in my rings or that they could see on the surveillance cameras who took the rings. However, the police said that neither did
anyone bring them my rings nor was this sink covered by the surveillance cameras. I was surprised but there was nothing more to do. I checked the Tuesday newspaper and noticed that someone entered a notice that they found rings at the Kosel and they left their phone number. When I called the number the girl who
answered the phone confirmed that she indeed found three rings on the sink but someone already called and came and she gave them to her. (The finder was a teenage girl.) She didn’t ask the other lady for simanimbecause she looked very religious and didn’t think anyone other than the loser would claim the rings, but she gave me the phone number of the other lady. I went with my husband to the lady and, realizing that she was not honest, we successfully pressured her to surrender the rings to me. When I told this to my relatives, my brother-in-law said that really the rings belonged to the lady who claimed them because I gave up hope of recovering the rings and ye’ush-giving up hope, renders a lost object ownerless. Therefore, the lady who had gotten the rings was the owner and I didn’t act properly in pressuring her to return the rings even though I was the one who really lost the rings! Do I really have to return the rings to this dishonest lady?
Answer
Your brother-in-law is really making two points and based on both together he is telling you that you are obligated to return the rings to the imposter!
His first point is that you were meya’eish-you gave up hope, that you would ever recover the rings. His
second point is that since you were meya’eish, the imposter became the owner of the rings. We will study both of these points and will begin with the second point.
We will investigate the following: if we accept your brother-in-law’s contention that you were meya’eish, does it follow that by virtue of your being meya’eish, the imposter became the owner?
If you really were meya’eish, it is critical to determine when you were meya’eish: before or after it was
picked up by the finder. The reason is because, while the Torah states (exactly where is a dispute between Rashi and Tosefos on BK 66A) that one who picks up a lost object after its owner was meya’eish from
recovering it attains ownership of the lost object, the Gemoro (BM 21B) explicitly states that the finder does not attain ownership if it was picked up by the finder before the owner was meya’eish. The Gemara does not give any reason for this ruling and it is the subject of a dispute between the Ramban and Tosafos and others who took sides. The Ramban (Milchamos BM 14B) bases his approach on the
Gemara’s understanding of the status of the one who picked up a lost object.
People often consider picking up a lost object as a voluntary act of kindness and therefore the action does not impose any responsibility or liability upon the finder. However, the Torah’s view is that picking up a lost object is an obligation and furthermore the finder assumes legal responsibility for the lost object. The nature of the finder’s responsibility is that he assumes the status of a shomer-watchman over the lost object.
(Whether he has the status of a shomer chinom-an unpaid watchman or a shomer sochor-a paid watchman is a dispute among the Amoro’im see BK 56B but that is not important for our discussion.)
Normally a person only becomes a shomer if he explicitly accepts upon himself to watch over the owner’s object. However here the Torah imposes this status upon the one who fulfilled his duty and picked up the lost object. (Rashi in BK 56B says this is derived from the expression of the pasuk, ve’asafto el tochbeisecho-you must gather it in to your house.)
Thus, for example, the Gemara (BM 25B) states that one who picked up a lost object may not return it to the place he found it, unless it was never a lost object. If the finder does return it there and someone else takes the object for himself, the finder is liable to the loser for his loss.
As a result of this, when a person picks up a lost object, he changes the status of the lost object. Before the finder picked it up, the object had the status of a lost object. Once it was picked up it was restored to its
owner under the care of the finder. While the owner is still unaware of the whereabouts of his object,
nevertheless, it is no longer a lost object since it is as if the owner placed it in the care of the finder of his object, who is now watching over it on his behalf.
The approach of the Ramban is that ye’ush, which is what enables a person to take ownership of a lost
object, is only effective on objects which have the legal status of “a lost object.” Ye’ush has no effect upon objects which are in their owner’s possession. Since when someone picks up a lost object he becomes the watchman over the lost object on its owner’s behalf, the object is actually again in its owner’s possession and therefore its owner’s ye’ush after that time has no legal effect. If the owner gave up hope before the object was found, since at that time it was not in the owner’s possession, the ye’ush is effective. But if it only took place after it was found, ye’ush is legally meaningless.
Applying this to your situation, if you had despaired of recovering your lost rings prior to their finding by the girl, the ye’ush would have been effective and someone could have taken possession of your rings.
However, since you certainly did not give up hope before the police informed you that no one turned in your rings and that their cameras did not cover the particular sink where you left the rings, and by that time the rings had already been picked up by the girl, your ye’ush, if it occurred after then, would have been legally without effect.
The commentary that is attributed to the Ritvo (BM 21B) follows the approach of the Ramban and adds a comment that is crucial for your situation. He writes that if the finder eventually gave the object to someone else, even though ye’ush took place before it entered into the second person’s hands, nonetheless he also
cannot gain ownership of the lost object. The rationale is simple. Just like ye’ush was ineffective when the object was in the hands of its finder because it was still owned by the loser, so too ye’ush is ineffective when it is in someone else’s hands since it still is owned by the loser. All that transpired when it was given over to the second person is that the identity of the watchman changed.
Thus, according to the approach of the Ramban, certainly what your brother-in-law said is not correct since even if you had been meya’eish it would have been at a time when it was legally meaningless.
Tosafos (BK 66A) offers a second explanation for the Gemoro’s ruling that the finder does not acquire the lost object when the owner is meya’eish. Tosafos says that the reason is that one who picks up a lost object before its owner was meya’eish is commanded by the Torah to return the lost object and this commandment is not affected by ye’ush. Since the finder is still commanded to return the lost object, he cannot acquire it.If one follows the approach of Tosafos, it is plausible that if someone else received the lost object after the loser was meya’eish, that person could acquire the lost object because he has no obligation to return the lost object. However, there are a number of reasons why this will not help the imposter to acquire your rings.First, Rabbi Akiva Eiger (BM 21B) maintains that Tosafos does not disagree with the Ramban in case the lost object has a siman. He maintains that Tosafos only gave an alternative explanation in order to explain why the finder cannot acquire possession of objects that do not have a siman. Since, you had several
simanim on your rings (as we will see), according to Rabbi Akiva Eiger the imposter could not acquire your rings because in your case Tosafos agrees with the Ramban.
Second, several Acharonim maintain that even according to Tosafos, the second person cannot ever acquire the lost object. For example, the Imrei Moshe (37, 3) maintains that the second person is also inhibited from acquiring the lost object because of the finder’s obligation to return the lost object. Similarly, according to
the approach of Rav Nochum (BM 26A note 99), Tosafos also maintains that since ye’ush was ineffective by the finder, others also cannot acquire the lost object.
Third, the Shach (259, 1) maintains that the Ramban’s explanation is the authoritative approach. The Ketsos (163, 1) also ruled in a practical case like the Ramban even though Tosafos seems to disagree.
Therefore, even if your brother-in-law is correct that you were meya’eish, the imposter was required to
return the rings to you.
We note further that even if she were not required to return the rings to you, you would not necessarily have to suffer a monetary loss since the girl who found the rings and gave them to the imposter without
demanding proper simanim acted negligently. She would have to pay you for your loss since all watchman are liable for losses that result from negligence. Therefore, even if you had lost the rings, you could be
reimbursed for your monetary loss.
Even though we have seen that even if you were meya’eish from the rings, it was at a time that it was no longer legally effective, we think it is instructive to consider the claim that you were meya’eish. Since the Gemoro (BM 21B) says that generally when one knows a siman-an identifying feature, of his lost object, the owner is not meya’eish, we will first consider if you had a siman on your rings. The reason we assume that one is not meya’eish if he has a siman is because by means of his siman he will be able to
recover his lost object: when he tells the finder his simanim, the finder will be obligated to surrender the lost object to him.
Perhaps, you had more simanim, but we know that you had at least two valid simanim. One siman is the place. Since you knew the exact sink on which you placed the rings you had a siman because you could
identify the place they were situated. The halacha (CM 262, 9) is that this is a sufficient siman to enable you to reclaim your rings from the finder. The second siman that you had is the number of rings. The Gemara says that when one finds rings, he should publicize that he found “rings.” Since his announcement is in the plural, if there were two it is not a siman.But since it is not implicit in his announcement that the finder found three rings, one who lost three rings could present the number as a siman. Therefore, the fact that you knew that you lost three rings means you had a second identifying feature that would enable you to reclaim your lost rings.
The assumption of the Gemara is that you would not be meya’eish since you could reclaim your rings.
We should mention that there are places where we assume that the owner is meya’eish even if he has
simanim. If one loses an object in a place where most people are gentiles or others who don’t return lost
objects, we assume that the owner is meya’eish even if he had a siman. However, the determinant (See Sema259, 6) of whether most people in a place are gentiles or not is the exact place where the lost object was lost. Since most people who use the sinks at the kosel are religious Jews who return lost objects, there is no
reason to assume you were meya’eish from recovering the rings.
It is true that even if one has simanim, if he says that he despairs of ever recovering his lost object he is
meya’eish. Since you did not explicitly say so, there is no reason to assume you were meya’eish. Moreover, you certainly are believed if you claim that you did not despair. Moreover, the fact that you checked the
newspaper is proof that you were not meya’eish. Additionally, according to many (most notably the Nesivos 262, 3) even if one is meya’eish he can reverse it if he later gains hope. Therefore, even if before you saw the notice in the newspaper you were meya’eish,since you gained hope when you saw the notice, if the imposter only received the rings after you saw the notice, she could not rely on your having despaired of recovering the rings because it had already been
reversed.
In conclusion: You acted properly in claiming your rings and pressuring the imposter to return them to you, the truthful owner. Both contentions of your brother-in-law are incorrect.
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