Question: 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?
Short Answer: There are conflicting rulings of Rav Yosef Shalom Elyashiv zt”l on this topic, but the simple understanding of the Rama is that you should pick it up and try to locate the owner.
Explanation:
I. The Gemara
There are a handful of statements in the Mishnah and in the Gemara that are relevant to our issue.
In Bava M’tzia (25b), the Mishnah states that if a person finds tied pigeons behind a wall or behind bundles in the field, he should not touch them. The Gemara (ibid) explains that one should not touch them because presumably the owner intentionally placed the pigeons there, and since they do not have any siman (= identifiable feature), if you take them, the owner will never be able to identify them and claim them from you. Therefore, it is preferable to leave the pigeons where they are, and the owner will likely return and retrieve them.
The Gemara (ibid) further elaborates that the “place” where the pigeons were placed is not considered an identifiable feature, as the pigeons possibly moved by themselves a bit. Thus, this is a case of “safeik hiniach” – a doubt whether the owner intentionally placed them in this spot or whether they moved themselves – and Rav Aba bar Zavda previously ruled that all cases of safeik hiniach should preferably be left in the spot where they were found.
Further, in Bava M’tzia (31a), the Gemara states that if a person finds a talis or an axe by the side of a fence, the item is not considered “lost.”
II. Explanation of Tosafos
Tosafos (Bava M’tzia 25b, s.v. achar & vi’im) explains that whether a person should pick up an item with an identifiable feature depends on where the item is found. If found in an area that is completely “m’shumar” – protected – then the finder should simply leave the item where found, as the owner likely left it there intentionally and will return himself to retrieve the item. This is the scenario in Bava M’tzia (31a), that a talis or ax by the side of a fence is not considered “lost” and should thus not be taken by a “finder,” even if he intends to “return” it to its owner.
If an item with an identifiable feature is found in a place that is not protected at all, the finder must pick it up and attempt to find the owner. The source of this halachah is from the Gemara (Bava M’tzia 23a) that according to Rava, any lost item with an identifiable object must be taken and returned to the owner.
However, if the item with an identifiable feature is found in an area that is “mishtameir k’tzas” – protected a bit – and thus we are unsure if it was intentionally placed there or not, the finder must pick it up and try to return the item to its owner. The only time that you leave the item where you found it (by safeik mishtameir) is where there is no identifiable feature, like the case of the pigeons in the Gemara (Bava M’tzia 25b).
III. Rambam’s Interpretation
The Rambam (Hilchos G’zeilah 15:1-2), however, takes a different approach when interpreting these sources. The Rambam rules that all identifiable items that are safeik hiniach (i.e., unclear whether they were intentionally placed there or lost) must be left in their spot and not moved by the finder.
The Beis Yosef (Choshen Mishpat 260:9-10) understands that the Rambam is ruling that even where an identifiable item is found in an area that is mishtameir k’tzas, it should not be moved. The Rambam understands that the statement by Rav Aba bar Zavda in the Gemara (Bava M’tzia 25b) – that all cases of safeik hiniach should preferably be left in the spot where they were found – is discussing both items with identifiable features and those without such features. [Note, though, that the Tur understands the Rambam a bit differently].
IV. Shulchan Aruch
The Shulchan Aruch (Choshen Mishpat 260:9-10) rules like the Rambam, that a finder should not pick up an identifiable item in an area that is mishtameir k’tzas and thus unclear whether it was placed there intentionally or whether it was dropped accidentally (i.e., safeik hiniach).
The Rama (ibid), on the other hand, codifies the opinion of Tosafos, that a finder should pick up an identifiable item in an area that is mishtameir k’tzas and try to locate the owner.
V. Practical Applications
Based on the Rama, which is minhag Ashkenaz, it would appear that if a person finds an identifiable item in an area that is mishtameir k’tzas, such as a baseball mitt in a dugout of a baseball field or a jacket in the side of a public playground, he must pick it up and try and locate the owner.
Indeed, the Shach (24) expressly attacks the ruling of the Shulchan Aruch. Similarly, the Aruch HaShulchan (Choshen Mishpat 260:21) appears to adopt the Rama and elaborates that it makes sense to pick up the item, as the owner prefers that the finder pick it up, post announcements to try to find the owner, and eventually return it instead of leaving it on the field or in the playground to be stolen.
However, the sefer Hashavas Aveidah K’Halachah (1:9:26) cites a very relevant ruling by Rav M. Karp shlita in the name of Rav Elyashiv on this issue. Rav Elyashiv rules that where a relatively cheap item is found in an area of mishtameir k’tzas (or even in a completely unprotected area), it is better for a finder NOT to pick up the item. Since the owner is unlikely to expend the effort to search announcements to find such a relatively cheap item, it is better that the finder just leaves the item where it is found. The owner may return and search for it there, and thus this option is preferable to taking it and announcing it, in which the owner will never see the item again.
This author would like to suggest that a baseball mitt or light jacket would fall under this category, and thus, according to Rav Elyashiv, they should not be picked up by a finder.
Surprisingly, Rav Y.P. Bodner (Halachos of Other People’s Money – p. 147, n. 30) cites Rav Elyashiv as ruling just the opposite. Although one would think that the law changes when a cheap item is found, Rav Elyashiv rules that there is no difference between cheap and expensive items – they always must be picked up and returned when found
Next Week’s Topic: Must a wealthy person, who is not a talmid chacham, pick up and return a lost object that is beneath his dignity to be in his possession?
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..