Question: May a person ignore (and not pick up) a lost object that has no identifying features?
Short Answer: While Rav Yosef Shalom Elyashiv zt”l and others ruled that one may ignore such an object, Rav Moshe Feinstein zt”l ruled that a finder must pick up the object and hold onto it until Eliyahu HaNavi comes and the true owner is established.
Explanation:
I. No Identifying Features
The Gemara (Bava M’tzia 21a-21b) states a machlokes between Rava and Abayei whether “yiush she’lo mi’daas” – i.e., presumed forfeiture by the owner of a lost object when the owner is unaware of the loss – is considered a valid forfeiture in halachah. The Gemara itself notes that we follow the opinion of Abayei, that it is not a valid forfeiture. This will be explained further herein.
The Shulchan Aruch (Choshen Mishpat 262:3) sets forth the general principles with respect to a finder’s responsibility of hashavas aveidah on a lost object without any identifying features. [What is considered an “identifying feature” is outside the scope of this article]. In general, a finder need not return a lost object that lacks identifying features. However, the finder may only keep this lost object if he picked up the object after the owner gave up ever finding or retrieving it (i.e., forfeiture). Moreover, if the owner is unaware of the loss, i.e., yiush she’lo mi’daas, then there can be no forfeiture, like the opinion of Abayei.
Accordingly, if a finder finds an object that has no identifying features, and he somehow knows that the owner is not yet aware that the object is lost, the finder must hold onto the item until Eliyahu HaNavi comes, and true ownership is established.
Notably, the Shulchan Aruch (ibid) does list certain exceptions where the forfeiture may be presumed and the finder may keep the lost object, such as where the item is heavy or valuable and the owner immediately noticed that it was missing. Practically, this exception occurs most frequently with regard to lost money. Money doesn’t have identifying features, but a person is presumed to know immediately that the money is lost, as a person frequently checks his pocket. See Hashavas Aveidah K’Halachah (5:3:8).
II. Unsure About Owner’s Forfeiture
But what about if the finder is unsure whether the owner knows yet of the loss. May he just assume that the owner does know and therefore keep the object?
The Magid Mishneh (Hilchos Aveidah 14:5) rules that the finder may not keep the lost object unless he knows for sure that the owner actively has had yiush, forfeiture. He brings a proof from the Gemara (Bava M’tzia 22b), which asks on Abayei (who holds that yiush she’lo mi’daas is not yiush) from a baraisa that states that lost money may be kept, presumably even when the owner does not yet know the money is lost. The Gemara answers that money is a unique case, as a person consistently checks his pocket and thus it is not a case of yiush she’lo mi’daas. The Magid Mishneh notes that the Gemara didn’t simply answer that the baraisa is talking about a case where the finder doesn’t know whether the owner is aware yet of the loss. This implies that if the finder doesn’t know whether the owner is aware yet of the loss, he cannot keep the item (unless it is money).
The Taz (Choshen Mishpat 262:3) adopts the opinion of the Magid Mishneh. The sefer Hashavas Aveidah K’Halachah (5:4:16) cites Rav Nissim Karelitz zt”l who follows the Taz, but notes that we allow the finder to keep the item if it is a case of “s’feik s’feika” – a double doubt – such as in a place where the majority of inhabitants are nochrim (i.e., safeik whether it fell from a nochri, and even if it fell from a Yisrael, safeik whether the Yisrael was aware of the loss before the finder found it).
III. Ignore It
But may the finder simply ignore a lost item that has no identifying feature? Since we just established that if the finder picks it up, he will need to hold onto the item until Eliyahu HaNavi comes, it would appear to be much easier to just walk past it. Is that permitted?
The Igros Moshe (Choshen Mishpat 2:45:4) rules that the finder is obligated to pick up the object and hold onto it until Eliyahu HaNavi comes. He does not explain his reasoning. Rabbi Y. P. Bodner, in his sefer, Halachos of Other People’s Money (p. 170), notes that the Igros Moshe rules like the opinion of the Shulchan Aruch HaRav who holds that the item must be picked up, as the owner can always retrieve it by bringing witnesses who saw him drop this item. Rav Bodner adds that this was also the opinion of the Chazon Ish and Rav Azriel Auerbach, although Rav Azriel Auerbach allowed the finder to ignore the item if it was of such little value that no finder would ever seek witnesses to retrieve the item.
On the other hand, Rav Bodner notes that Rav Elyashiv zt”l disagreed and felt that the Shulchan Aruch HaRav was not the normative ruling. Accordingly, a finder may ignore the item. This opinion of Rav Elyashiv is likewise cited in Hashavas Aveidah K’Halachah (1:5:14), who notes that Rav Nissim Karelitz zt”l agreed that the finder may ignore the object. However, he qualifies that if the finder finds the item in a town where talmidei chachamim are common, the item must be picked up, as a talmid chacham can reclaim the item by simply having “t’vias ayin,” i.e., recognizing the item even without bringing simanim. See Shulchan Aruch (Choshen Mishpat 262:21). [Note that a “talmid chacham” for this halachah is defined as a person who does not lie. See Halachos of Other People’s Money (p. 171)].
IV. Dusty and Rusty
What about when the lost object is dusty and rusty? Can we presume that the owner is aware that it is lost by the time the finder finds it?
The Shulchan Aruch (Choshen Mishpat 262:5), based on the Gemara (Bava M’tzia 23b), rules that a finder may keep an item that clearly was lost for “z’man rav,” even if the item has identifying features. The example given by the Gemara is that the item is rusty and dusty.
The Shulchan Aruch, however, does not expound on how “z’man rav” is determined. Indeed, both the sefer Hashavas Aveidah K’Halachah (5:1:2) and Halachos of Other People’s Money (p. 153) conclude that even though the Gemara (see Bava M’tzia 24b) implies that 12 months is considered “z’man rav” for certain items, each item is different, and each case must be analyzed separately. Thus, there is no set definition for “z’man rav.”
Next Week’s Topic: May a claimant reclaim his lost object from the finder, based on simanim alone, or are character witnesses also necessary?
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..
