Question: Is a woman obligated to return a lost object that she finds?

Short Answer: Unless it would be improper or inappropriate for a woman to pick up this specific lost item, a woman is obligated in hashavas aveidah like a man.

Explanation:

I. Mitzvos Not Dependent on Time

The Mishnah (Kiddushin 29a) sets forth the famous rules regarding which mitzvos women are obligated to observe. First, women are obligated to observe and perform any positive commandment not dependent on time, i.e., they can be done at any time. Accordingly, women are exempt from performing positive commandments that are dependent on time. Second, women are obligated to observe negative commandments, regardless of whether they are dependent on time.

The Gemara (Kiddushin 34a) states a sampling of positive commandments that are not dependent on time, including Mezuzah, Maakeh, “Aveidah,” and Shiluach HaKein. Rashi explains that “aveidah” refers to the mitzvah of Hashavas Aveidah. It thus appears clear from this Gemara that women are obligated in the mitzvah of Hashavas Aveidah, as this positive commandment is not dependent on time (i.e., it is performed at any point of the day or week).

Tosafos (Kiddushin 34a) queries why the Gemara lists Hashavas Aveidah as one of the mitzvos that women must observe, because it is not dependent in time; even if it was dependent on time, women should still be obligated in the mitzvah because there is a negative commandment, as well (“lo suchal l’his’aleim”)? Tosafos answers that there are some situations in which only the positive commandment of Hashavas Aveidah exists, such as where the finder picks up the lost object with intent to return it to its owner, but then subsequently decides to keep the item. The finder only violates the positive commandment. See Article #1. In such a case, women are still obligated to return the item, as it is a positive commandment that is not dependent on time.

[As an aside, Rabbi Akiva Eiger (on the Mishnah in Kiddushin 1:22) notes that the Ramban and Ran formulate the question of Tosafos a bit differently. While Tosafos was only suggesting that women should be obligated in the negative commandment of Hashavas Aveidah regardless of whether the positive commandment was dependent on time, the Ramban/Ran suggest that because women are obligated in the negative commandment of Hashavas Aveidah, they should also be obligated in the positive commandment, regardless of whether it is dependent on time. The upshot of the Ramban and Ran is the introduction of a new principle, that women must observe even the positive commandment where the positive and negative commandments of a mitzvah are connected (such as by Yom Tov). See also the Avnei Derech (6:202).]

Indeed, the Minchas Chinuch (538) rules that women are obligated in the mitzvah of Hashavas Aveidah.

II. The Amazing Tosfos HaRosh

In light of the above clear-cut sources describing women’s obligation to perform Hashavas Aveidah, the Tosfos HaRosh (cited in the Shitah M’kubetzes, Bava M’tzia 30a) makes an amazing statement.

The Gemara (Bava M’tzia 30a) suggests that the pasuk “v’his’alamta” teaches that a kohen need not retrieve and return a lost object that is in a cemetery. The Gemara asks why such a pasuk is necessary, as of course the kohen is not obligated to retrieve the item and violate both a positive (“K’doshim tih’yu”) and negative (“Lo yitama”) commandment in the process. Even though retrieving and returning the item would fulfill a positive (“hasheiv”) commandment (Rashi: and a negative commandment, as well, of “lo suchal”), nevertheless, we do not “push off” the positive and negative commandment of entering the cemetery simply to fulfill a different positive (Rashi: and negative) commandment of Hashavas Aveidah.

Tosafos (ibid) wonders why we do not “push off” the positive and negative commandment of entering the cemetery in order to fulfill the commandment of hashavas aveidah. Indeed, because the positive and negative commandment of entering the cemetery are unique to kohanim, principles of halachah require these laws of tum’ah to be “pushed off” when faced with a different positive commandment such as Hashavas Aveidah, which applies to all Jews.

The Tosfos HaRosh suggests a potential answer to the query of Tosafos in the name of “yeish m’farshim” – “some say.” The Tosfos HaRosh writes that in truth the mitzvah of Hashavas Aveidah is likewise unique to only a certain segment of Jews – the males – as women are exempt from Hashavas Aveidah. Tosfos HaRosh adds that women are exempt from Hashavas Aveidah because “kol k’vudah bas melech p’nimah” – it would be improper for women to perform this public mitzvah.

Although the Tosfos HaRosh himself disagrees and rules that women are obligated to return any item that they themselves would handle publicly, the opinion of the “yeish m’farshim” stands as a clear contradiction to the Gemara (Kiddushin above), setting forth that women are indeed obligated in Hashavas Aveidah.

III. Explaining The Tosfos HaRosh

The Shraga HaMeir (4:51) explains that there really is no contradiction between the Tosfos HaRosh and the Gemara in Kiddushin. In truth, women are obligated to perform the mitzvah of Hashavas Aveidah unless it is an item that requires public carrying not befitting a woman. In such a case, the woman’s exemption is similar to an important person who is exempt from returning an item beneath his dignity. See Article #3. Rav Yitzchok Zilberstein (cited in Nesivei HaErusin, p. 548) rules in a similar fashion. Women are only obligated to return lost items that they themselves would retrieve publicly.

The Birur Halachah (Vol. 7, p. 298) proves from these answers that the exemption of an important person is not a complete exemption that he does not fulfill the mitzvah at all, should he decide to return the item. Rather, it is an exemption that does not obliterate the underlying obligation, and thus if the person does perform the mitzvah, he gets a mitzvah.

IV. Practically Speaking

Both the Pischei Choshen (Aveidah 1:7) and the Avnei Derech (ibid) rule that women are only exempt from returning items that requires public carrying not befitting a woman. Otherwise, they are fully obligated like men.

 

New Series Next Week: Bishul Akum. TOPIC: Are you permitted to eat food cooked by an irreligious Jew?

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..