Question: Pursuant to the mitzvah of Hashavas Aveidah, must one inform his friend that the friend accidentally left the lights on in his car?
Short Answer: Yes, this is part of the mitzvah of Hashavas Aveidah. If one does not inform his friend, he violates a negative commandment and possibly even a positive commandment.
Explanation:
I. P’sukim in the Torah
The Torah sets forth the requirements and parameters of hashavas aveidah – returning lost objects.
Specifically, the pasuk in Parshas Ki Seitzei (D’varim 22:1) states that if you find a lost object, “hasheiv t’shiveim l’achicha,” you must return the object to its owner. This is a positive commandment. A similar positive commandment is likewise found in Parshas Mishpatim (23:4). See Sefer HaChinuch (mitzvah 538).
A few p’sukim later (22:3), the pasuk states: “lo suchal l’hisaleim,” you should not ignore the object. This is a negative commandment. See Sefer HaChinuch (mitzvah 539). Another relevant negative commandment is (Parshas K’doshim – VaYikra 19:13), “lo sigzol,” not to steal.
II. How To Violate These Commandments
When are these commandments violated?
The Shulchan Aruch (Choshen Mishpat 259:1) is clear that if a finder picks up a lost object with intent to keep it for himself (and before the owner has given up hope of ever having it returned), the finder violates all three commandments.
If the finder picks up a lost object with intent to return it (and before the owner has given up hope of ever having it returned), but then (after the owner gives up hope) decides to keep the object for himself, the finder only violates “hasheiv t’shiveim.”
If the finder waits to pick up the lost object (with the intent to return it) until after the owner gives up hope of ever having it returned, the finder only violates “lo suchal l’hisaleim.”
But what about if the finder never picks up the item at all?
The S”ma (Choshen Mishpat 259:1) rules that if the finder simply walks past the lost object and refuses to pick it up, he just violates “lo suchal l’hisaleim.” The commandment of “hasheiv t’shiveim” is not violated until the finder actually picks up the lost object.
The Taz (ibid), however, disagrees. He notes that the Rambam (Hilchos Aveidah 11:1) expressly states that if you simply “see” a lost object and ignore it, you violate both “lo suchal l’hisaleim” and “hasheiv t’shiveim.”
Rav Chaim Soloveitchik (Kisvei Grach, cited in Shiurei Rav Dovid Povarsky, B”M, siman 35) questions the Rambam. If you violate both “lo suchal l’hisaleim” and “hasheiv t’shiveim” by simply ignoring a lost object, how can you ever have a situation where a finder “waits” until after the owner give up hope of ever having it returned (as is mentioned in the Shulchan Aruch)? The moment that the finder sees the object, he is obligated to return it and will violate both commandments if he does not return it, regardless of whether the owner gives up hope of ever having it returned?
Rav Chaim answers that there is a fundamental difference in the finder’s obligation to return the object before and after he picks it up. Before the finder picks it up, he only has a positive commandment (like t’filin, etc.) to return the object. Thus, if the owner subsequently gives up hope of ever having it returned, the finder no longer violates “hasheiv t’shiveim.” But, after the finder picks it up, there is a monetary obligation, as well, to return the object (as he is now holding onto the owner’s item). At this point, the owner giving up hope is meaningless.
III. Reasons for the Mitzvah
What is the reason for the commandments of Hashavas Aveidah?
The Sefer HaChinuch (ibid) explains that Hashavas Aveidah provides a public service by ensuring that people watch out for each other’s objects. Because forgetfulness and absentmindedness is commonplace for most people, Hashavas Aveidah creates a situation that even a lost object “remains” in the possession of the owner, even if he doesn’t practically know where it is currently.
Rabbi Yisroel Pinchos Bodner, in his English sefer, “Halachos of Other People’s Money” (p. 137) cites the Tz’ror HaMor, who suggests a different reason. Hashavas Aveidah trains us in “midos tovos,” to have mercy for our friend’s object and to care for it as if it was our own.
[This author would like to suggest that perhaps the machlokes between the Taz and S”ma (whether there is a mitzvah of “hasheiv t’shiveim” even before the finder picks up the item) is based upon the machlokes between the Chinuch and the Tz’ror HaMor regarding the reason for Hashavas Aveidah. If the reason is to create a public service (Sefer HaChinuch), then perhaps there is no violation of “hasheiv t’shiveim” for ignoring the item, as someone else can find it and return it, thereby performing the public service. However, if the reason is for midos-building (Tz’ror HaMor), then even walking past a lost object and ignoring it violates “hasheiv t’shiveim.”]
IV. Lights On in Your Friend’s Car
The Shulchan Aruch (Choshen Mishpat 259:9) rules that the mitzvah of Hashavas Aveidah applies to real property. This means that if a person sees water spilling onto his friend’s property and causing damage, he must prevent the damage. The source of this extension of the mitzvah is from the phrase “l’chol aveidas achicha” – which adds even real property to the commandment.
The sefer D’var Yaakov (B”M 31a) cites a question of numerous Acharonim: Why is there a separate verse to add real property to the mitzvah of Hashavas Aveidah? Why is it not automatically included in the regular pasuk commanding Hashavas Aveidah?
D’var Yaakov cites the answer of the Torah T’mimah (D’varim 22:3:21), that since real property is never permanently “lost” but is only temporarily destroyed, one would think that there is no mitzvah of Hashavas Aveidah on real property. D’var Yaakov also cites the answer of the Even HaEzel, that since real property never leaves the possession of the owner, one would think that there is no mitzvah of Hashavas Aveidah on real property.
The D’var Yaakov, however, suggests his own answer based on the reason of the Sefer HaChinuch (cited above). One would have thought that since the destruction of real property has nothing to do with forgetfulness and absentmindedness, there is no mitzvah of Hashavas Aveidah on real property. This is just another ramification between the reason of the Sefer HaChinuch and the Tz’ror HaMor, as the Tz’ror HaMor would have to rely on one of the first two answers to answer this question.
Regardless, from this Shulchan Aruch it is clear that one would have an obligation pursuant to the mitzvah of Hashavas Aveidah to inform a friend that he left the lights on in his car.
V. Which P’sukim?
The Minchas Chinuch (ibid) queries which commandments of Hashavas Aveidah are violated when a person passes by his friend’s real property, observes damage, but does not inform his friend (e.g., does not tell him that his car lights were left on)? Is it just “lo suchal l’hisaleim” or is it both “lo suchal l’hisaleim” and “hasheiv t’shiveim?”
The sefer Gidulei Shmuel (cited in Mishpat HaAveidah, 259:9, n. 128) suggests that perhaps it is based upon the machlokes of the Taz and S”ma mentioned above. According to the S”ma, that one does not violate “hasheiv t’shiveim” until he picks up the lost object and decides not to return it, surely here by the real property, there is no violation of “hasheiv t’shiveim.” However, according to the Taz, that “hasheiv t’shiveim” is violated the moment that a person walks by and ignores a lost object, certainly here, by the real property, even “hasheiv t’shiveim” is violated.
The sefer Mishpat HaAveidah disagrees. Since by the real property there is no obligation to return the property (i.e., you are just preventing damage), all opinions would hold that “hasheiv t’shiveim” is violated if you do not prevent the damage.
Next Week’s Topic: Should you pick up and try to return a relatively cheap yet identifiable item in a semi-protected area, such as a baseball mitt in the corner of a dugout in a public baseball field?
Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email: This email address is being protected from spambots. You need JavaScript enabled to view it..