Lost & Found

Hello Everyone,

Yesterday we began the new series of shiurim on the subject of the mitzvah to return lost objects, השבת אבידה.

There are actually three mitzvoth connected to lost objects:

1) the mitzvah to return them

2) the prohibition against ignoring them

3) the prohibition against keeping them for oneself (which is a form of theft).

The ספר החינוך classifies השבת אבידה  as a “common-sense” mitzvah. Common sense dictates that every society should adopt laws regarding השבת אבידה. We all lose things and we would be happy to know that should we lose something then our neighbor who finds the lost object will return it. This is a form of mutual aid and support which the Torah commands us to accept. As the ספר החינוך  says:

וכל פקודי ה’ ישרים משמחי לב.

There is a detail to the mitzvah of השבת אבידה  which has been troubled many thoughtful people. That is the prohibition against returning lost objects to non-Jews. The Gemarah in Sanhedrin[1] says:

והמחזיר אבידה לנכרי – עליו הכתוב אומר למען ספות הרוה את הצמאה לא יאבה ה’ סלח לו

The Rambam and Shulchan Aruch quote this Gemarah as Halachah.  Why is it forbidden to return a lost object to its non-Jewish owner? Rashi explains the matter “theologically” while the Rambam explains it “societally.”

Rashi points out that the Torah specifically commands us to return the lost object of “אחיך”- your fellow Jew. In the three verses which discuss השבת אבידה in פרשת כי תצא the word אחיך appears 5 times. When a person returns a lost object to a non-Jew he is demonstrating that his motive for doing this is not because of the Divine command (since the Torah clearly does order us to do so). Rather, this person has an alternative value system which commands him to return all lost objects regardless of owner.

רש”י מסכת סנהדרין דף עו עמוד ב

והמחזיר אבידה לנכרי – השווה וחבר נכרי לישראל, ומראה בעצמו שהשבת אבדה אינה חשובה לו מצות בוראו, שאף לנכרי הוא עושה כן שלא נצטווה עליהם.

Rashi holds that a Jew may have only one value system and that must be the Torah. Returning the lost object of a non-Jew may be the ethical thing to do but we must be loyal to the Torah which specifically excludes this moral act from the mitzvah of השבת אבידה.

The subject of whether the Torah can coexist with another ethical system is an interesting one. Much has been written on the subject. We saw an essay by Rav Amital zt”l who emphatically held that observant Jews must pay attention to the dictates of their consciences. Rav Amital does not mention our Rashi, though he does begin the discussion saying that the idea that Judaism makes no allowances for one’s conscience and ethical decisions has much support among the public. It may be that this idea can be traced back to our Rashi.

The Rambam presents us with a different reason for this prohibition. The Rambam says that the average non-Jew is wicked and by returning lost objects to non-Jews we are strengthening evil-doers:

רמב”ם הלכות גזלה ואבדה פרק יא

הלכה ג

אבידת הגוי מותרת שנ’ (דברים כ”ב ג’) אבידת אחיך, והמחזירה הרי זה עובר עבירה מפני שהוא מחזיק ידי רשעי עולם…..

This interpretation of the Halachah leads us to ask if contemporary non-Jews need to be viewed collectively as wicked. This is not a new question. The Meiri who lived in southern France towards the end of the 13th century is famous for his claim that the Talmudic strictures against non-Jews were valid only for ancient pagan societies. He writes about our question:

בית הבחירה למאירי מסכת סנהדרין דף עו עמוד ב

עובדי האלילים וכיוצא בהם מבעלי האמונות הקדומות אף על פי שהוזהרנו בגזילתם ובגניבתם ובכל מיני רמאות הבאים מצדנו אין אנו מצווים בחזרת אבדתם כלל במקום שאין שם חלול השם וכבר בארנו דבר זה בב”ק:

There are circumstances when we must return lost objects to their non-Jewish owners. If by returning the lost object we will lead the non-Jew to acknowledge the morality of the Torah ( קידוש ה’) or if by not returning the lost object we will cause the non-Jew to condemn the Torah then the lost object must be returned to its owner.

In the 18th century there lived in Morocco a great sage named  רבינו חיים בן עטר who wrote a commentary to the Torah titled אור החיים. This commentary often veers off to the allegorical and mystical and he gives us a fascinating interpretation of the mitzvah of השבת אבידה.

The simple reading (which is valid) of the פסוקים of השבת אבידה teaches us to return lost material objects. But what about lost spirits? What about people who have lost their way in this world? The אור החיים  says that the אחיך of the פרשה is none other than God. God asks us to seek out lost souls and help them to return to Him.

This was yesterday’s shiur and I hope that you found it informative. Stuart Fischman

[1] תלמוד בבלי מסכת סנהדרין דף עו עמוד ב

Hello Everyone,

In yesterday’s shiur we began the study of the laws of Hashavat Aveidah. The mitzvah to return a lost object only exists when certain conditions are met. These conditions are:

1. a) The object is found in a location where the mitzvah is applicable. For example, since in the absence of a potential קידוש ה’ there is no mitzvah to return a lost object to a non-Jew, a lost object found in a non-Jewish neighborhood may be kept by the finder.
2. b) The object’s placement makes it seem possible that the object is “lost” and not placed there deliberately. Scattered coins are considered to be “lost” while a stack of coins is not.
3. c) The object is “lost” and not tossed away or disposed of by its owner.
4. d) The object needs to be worth at least one פרוטה.

e)The object needs to be something that if it was the finder’s own object he would take the trouble to bring it home. This rule exempts the finder from having to return an object which would cause him embarrassment.

1. f) The object needs to have an identifiable marking or to be found in an identifiable place.
2. g) The object needs to be the property of a person to him the mitzvah applies.
3. h) The object needs to have been lost in a location where other people could find it (for example, a wallet dropped in a street). However if the object was lost to everyone ( for example, the contents of a home swept away by a flood) then whoever finds those objects may keep them even if  they have identifying marks. This rule is based on a דרשה in the Gemarah. The Rema in Shulchan Aruch says that it is preferable that the finder return the objects found in these circumstances to their owners. Similarly if the local secular law mandates that the objects lost in these circumstances be returned their owners then we must do so because of the rule דינא דמלכותא דינא.

After discussing these rules we discussed the idea of ייאוש-  “despair.” When someone finds a lost object which lacks any identifying marks (rule (f) above) she may keep the object. The theory behind the permission to keep lost property is that the owner of the lost object will despair of recovering the object since it lacks any identifying marks. This despair ( known as ייאוש) allows for the finder to acquire the object. As explained by the great 20th century authority, Rav Shimon Shkop zt”l, ייאוש is not strictly speaking a transfer of ownership by its owner. Rather it is the acquiescence of the owner to the finder’s taking ownership of the lost object. The original owner realizes that he will not recover the object and therefore he has no objection to its being used by someone else.

No lost object can be kept by its finder until there is ייאוש. The reason for this is that  nobody can acquire an object which is owned by somebody else. It is only when ייאוש occurs that the finder may legally take possession of the lost object.

There is a dispute between Abbayei and Rava regarding ייאוש. According to Rava, as soon as a person loses an object which lacks identifying marks (e.g. cash) the finder may keep it. Rava’s theory of ייאוש  is that as soon as the owner of the lost coins realizes that he lost them he despairs of recovering them, and this despair takes effect retroactively to the moment that the coins were lost. Abbayei disagrees with Rava. Abbayei says that the coins are in the possession of their owner until he actually despairs of recovering them. The Halacha is like Abbaayei.

If a person mistakenly despairs of recovering the lost object, can he reassert his ownership of the object when he finds it in someone else’s possession?

This question was addressed by Rav Yitzchak Zilbershtein שליט”א in his commentary חשוקי חמד. A person brought an electrical device to a technician for repair. The technician examined the object and told its owner that it cannot be repaired. The technician asked the owner if he could keep the broken object and use its parts. The owner agreed.

Sometime later the owner of the object went to see the technician and he saw that his appliance now works. He asked the technician what happened. The technician replied that a friend of his came to the shop and explained to him how to repair the object. The owner then told the technician that he wants the object back, but the technician refused to return it, claiming that he (the owner) was  מתייאש of recovering it so he ( the technician) acquired it. The owner claimed that his ייאוש was caused by the technician’s incorrect assertion that the object could not be repaired, therefore his ייאוש was mistaken and invalid.

Rav Zilbershtein quotes the work  Beit Yitzchak who discussed this question of mistaken ייאוש. According to the Beit Yitzchak there are two situations in which the issue of mistaken ייאוש could arise.  A person might despair of ever recovering his lost property because of the circumstances surrounding the loss. But it may happen that the circumstances change and he discovers his lost property. This change in circumstances does not negate the ייאוש and he has no claim to the property. At the moment of ייאוש there was no reason to assume that the object would be returned.

Another possibility is that a person despairs of recovering his lost property because of wrong information. In that case the owner may say that had he been told the truth at the time of his ייאוש he never would have despaired. In our case  the knowledge of how to repair the device existed at the time of the ייאוש. The ייאוש here was mistaken and the object needs to be returned according to its owner according to the Beit Yitzchak.

Thanks to everyone who participated in the shiur. Stuart Fischman

Hello Everyone,

In yesterday’s shiur we saw how the concept of יאוש  is applied to a very prominent issue- the return of property looted by the Nazis ימ”ש to their owners.

יאוש as we learned last week means despair. When the owner of a lost item despairs of retrieving it, the one who later finds the lost item may keep it. In the case of objects lost because of natural disasters the Halacha rules that the finder may keep the objects even when the owner states categorically that he has not despaired of retrieving them.

The questions discussed by the Poskim whose works we examined yesterday was whether items recovered after the Holocaust could be kept by their finders. The decision on this issue rests on answering two questions:

1) Did the victims of the Nazi persecutions despair of recovering their property?

2) The Halacha says that owners of holy books do not despair of recovering them. The reason for this is that the owners assume that the books are stolen for profit. Since the non-Jews who steal the books have no use for them and since these books can only be sold to Jews, the owners assume that eventually the books will find their way into Jewish hands. The Jews who buy the books will presumably take the trouble to return the books to the owners, and so there is no reason to despair of recovering them.

We saw two attitudes towards the Holocaust- was it fundamentally similar to the other waves of persecution which we have experienced in our history, or was it a manifestation of unknown savagery.

Rav Yechiel Weinberg zt”l stood at the head of the Rabbinical Seminary in Berlin prior to the Second World War. The yeshiva was shut down by the Nazis before the outbreak of the war. Rav Weinberg succeeded in obtaining visas for most ( if not all) of his students and fellow faculty members, while he himself was exiled with the other Polish Jews living in Germany back to Poland. Rav Weinberg survived the camps and spent the rest of his life in Switzerland. While in Switzerland he received a letter from a student living in Israel. This student succeeded in saving a part of the yeshiva’s library and brought it Israel. He asked Rav Weinberg if he may keep the books, based on the  assumption that the owners of the books (the Seminary’s administration) despaired of ever seeing the books again.

Rav Weinberg thanked his student for contacting him with the request. He said that this is a mark of his honesty. However, Rav Weinberg replied, his student (מהר”ם רבהון) could not keep the books. He had two reasons for ruling this way:

1. a) When Rav Rabhon took the books he did not take them with the intention of keeping them, but of rescuing them and returning them to the yeshiva when it is re-established. Since he did not take them with the intention of keeping them, he has not acquired title to them.
2. b) Rav Weinberg next wrote that he never despaired of recovering the yeshiva’s library. He always held out hope that Nazism would ultimately disappear. Rav Weinberg acknowledged that other rabbis had written that the laws of despair/יאוש apply to property after the Holocaust but he strongly disagrees with that attitude.

Rav Weinberg’s assertion that he “never despaired” may be an expression of heroic אמונה or perhaps indicative of his own experiences under Nazism. When the Berlin Seminary was shut down in 1938 nobody few imagine the horrors to come. The “Final Solution” had not yet become reality. The Jewish people have known persecution and expulsion and the laws of השבת אבידה reflect this history. The early 14th century authority, the תרומת הדשן, discusses the return of books to the owners who were expelled from the town of Breslau. Rav Weinberg saw the dissolution of Jewish communal life in Germany, but he held out hope that Jewish life would be rebuilt somewhere else, as has been the pattern throughout the centuries.

We all know the terrible truth about the Holocaust. In retrospect perhaps Rav Weinberg’s faith was not misplaced. The Berlin Seminary has indeed been reborn in Berlin ( see the article in Wikipedia about the current institution: https://en.wikipedia.org/wiki/Hildesheimer_Rabbinical_Seminary).

We saw some of the rulings of authorities who did say that the laws of יאוש apply to property after the Holocaust. These rabbis wrote that the Holocaust was unlike anything the Jewish people ever experienced. They held that given the reality that people had to flee for their lives during the Holocaust, and that they had little hope of surviving, they certainly had no hope of recovering their abandoned property.

However, even though the laws of יאוש apply to post-Holocaust property, there is the ruling of the Shulchan Aruch that lost property should always be returned to its owners, since that is the “good and proper” thing to do.

In our times, the number of Holocaust survivors is dwindling. The lawsuits which we read about against museums and auction houses are brought by the heirs of the victims of the Nazis ימ”ש. These suits raise a new question. Many Poskim accepted in the 1950’s and 1960’s that the laws of יאוש apply to lost property and the requirement to return the property is based on a moral duty to do what is “good and proper.” Rav Weiss zt”l in his work מנחת יצחק was asked if a person who found a valuable manuscript to the heir of original owner who lost the manuscript during the war.

Rav Weiss zt”l  addressed the יאוש issue . He felt that יאוש applied in this case. The question now is whether the finder needed to return the object because of the moral duty. Rav Weiss had doubts if an heir enjoys the same protection as the original owner through the moral duty concept. The Halachic literature does not discuss any moral duty to return lost objects to the heirs of the original owners and Rav Weiss notes that when there is doubt we apply the law and not moral duties. He reaches no conclusion with this question.

I would only point out that the Rema writes that with regard to lost property, when the secular law orders that lost items be returned to their owners we should obey the law of the land. Thus it may be that even according the Rema the heirs of Holocaust victims may seek to retrieve their parents’ and grandparents’ property.

Thanks to everyone who participated in the shiur. Stuart Fischman

Hello Everyone,

In yesterday’s shiur we discussed common occurrences which  require us to consider the laws of השבת אבידה. One example was money found in the back seat of a taxi cab, the other example was change found in the return slot of a pay telephone ( in this age of smartphones there are perhaps  people who have never seen a payphone, so I posted a picture of one of these venerable devices on the shiur’s web-page).

The question in both cases is,  to whom does the money belong? The possibilities are:

1. a) the original owner
2. b) the finder
3. c) the cab driver or the telephone company.

In the shiur we focused on the third possibility, the cab driver or the telephone company since the lost money was found in their property. Their claim to ownership would be based on the application of קנין חצר .

קנין חצר is one of the modes of acquisition recognized by the Halacha.  Ownership of an object can be transferred when the seller/giver places the object in a space owned by the intended recipient. The space (חצר)  of the recipient must be enclosed and under his sole control (חצר המשתמרת). When these criteria are met, the חצר can be used to take title of an object.

A חצר can also be used to acquire ownership of lost objects. When an ownerless object ends up in an appropriate חצר the חצר acts as an agent (according one theory) on behalf of its owner and acquires the object.

Since this is the case it would seem that a cab driver’s taxi should act as his חצר  and acquire any lost objects for him. Similarly the change box of a pay telephone would acquire forgotten change on behalf of the telephone company.

Alas, the matter is more complex than this. The Gemarah says that when money is found in a store, ownership of the money depends on where it is found. If the money is found behind the counter, where the storekeeper stands, the money belongs to her. If however the money is found between the entrance to the store and the counter, the money belongs to the finder. The commentators ask, why should the money ever belong to the finder, isn’t the store the חצר of the storekeeper? All lost property found in the store should become the owner’s automatically, via קנין חצר .

There are two answers given to this question, and each one limits the scope of קנין חצר.

1) קנין חצר is only effective when the owner of the חצר controls the entrance to the חצר. Stores are open to the public, the storeowner (as a rule- there are stores where customers have to be “buzzed in”) does not control the entrance of people. Therefore the store’s owner has no confidence in finding lost objects in her shop, she does not entrust the store to act as her agent in this matter, and it cannot effect a transfer of ownership on her behalf.

2) קנין חצר is only effective for items which will undoubtedly be found by the owner of the חצר. There is no such guarantee when the question is involves loose coins.

With these answers in mind it is clear that loose change found in the back seat of a taxi cab belongs to the finder. The taxi cab is not an effective חצר  for its owner with regard to acquiring lost objects. Similarly the change found in a public telephone cannot be claimed by the telephone company. The public telephone is truly “open to the public” and anyone can reach inside the change slot to retrieve forgotten coins. It is not a חצר capable of acquiring title to lost items.

Rav Chaim David Halevi zt”l in his שו”ת עשה לך רב added another interesting point to the discussion regarding taxi cabs. The law in Israel is that lost items, when found, must be handed over to the police. The police hold the items for a certain amount of time, and if the owner does not come to claim them then they are handed over to the finder. Normally, we say that lost money belongs to the finder because it is not identifiable and the owner despairs of recovering it (ייאוש). However given the existence of the Israeli law, a person who loses money in an Israeli “sheirut taxi”        (which is a taxi which travels along a fixed route) does not necessarily despair of recovering the money. He has hope that an honest citizen will bring the money to the police, saying that he found it at such-and-such time in a taxi which travelled such-and-such route. Rav Halevi writes that returning lost items, in obedience to the secular law is the proper way to fulfill the mitzvah of השבת אבידה even if according to the Halachah in Shulchan Aruch, he may keep it.

Rav Halevi acknowledges that this would be the case if a person found a significant sum of money. If a person finds a sum of money which is so small that its owner would not take the trouble of filing a claim to retrieve it then the finder may keep it.

Thanks to everyone who participated in the shiur and again we wish Paul Terman mazal tov on his marriage. Bye, Stuart Fischman

Hello Everyone,

The laws of השבת אבידה tell us when we are obligated to return lost objects, but they also tell us when we are free to ignore lost objects. One example of the latter type of lost object is an object which worth less than one פרוטה. Another example is אבידה מדעת- an object consciously abandoned by its owner. Yesterday’s shiur focused on אבידה מדעת.

There is a disagreement between the Rambam and the Tur about אבידה מדעת.

If I see a farmer leave his cow unattended and untethered in a barn which has no door, or if I see a person toss his wallet onto the sidewalk I have no obligation to return these objects to their owners. As the Rambam puts it, the mitzvah is to return lost objects, and these objects were abandoned, not lost.  The Rambam adds that though there is no mitzvah to return these objects to their owners, the one who witnessed their abandonment may not take them for herself.

The Tur disagrees with the Rambam. According to the Tur, abandoning an object is the equivalent of renouncing ownership of the object. Abandonment is הפקר and the person who witnessed the abandonment may keep the object for herself.

The argument between the Rambam and Tur is recored in Shulchan Aruch. The Mechaber rules like the Rambam while the Rema holds like the Tur. In his commentary to the Tur ( titled “Beit Yosef”) the Mechaber explains the Rambam’s position. Unlike the Tur, the Rambam does not equate careless behavior with renouncing ownership.

After learning the opinions of the Rambam and the Tur regarding careless behavior we studied a teshuvah of the משנה הלכות זצ”ל  regarding trash. A man put his trash into the garbage can which was located in his yard. Then a man came and went through his garbage and found a pen which he took for himself. The person who put the garbage (I don’t want to say the “owner” of the garbage since the question is about this ownership) demanded that this scavenger return the pen. The scavenger refused to do so and the question was brought to the משנה הלכות  (Rav Menasheh Klein-Hakatan zt”l) for resolution.

In general if careless behavior can be viewed as renunciation of ownership ( as the Tur rules) then certainly putting objects into a garbage can be regarded so. And, the משנה הלכות went on to say, even if the garbage cans are located in the homeowner’s yard the garbage is judged to be ownerless.

The present question is whether the homeowner may withdraw his renunciation of ownership. The Mishneh Halachot pointed out that there is a difference between objects that the owner does not care about (אינו קפיד) and objects which he actually abandoned.

An example of something which a person may not care about is the change due to him after making a purchase. If I have a one dollar bill in my wallet I certainly view it as mine and if someone was to take it from me it would be theft. However, if I would by an object which costs $499 and I would pay for it with five one hundred dollar bills, I might very well tell the cashier to keep the change. So, depending on the circumstances, I may or may not care about a single dollar but nobody may take a dollar from my wallet without my permission.

On the other hand, when a person puts an object into a trash can he is absolutely declaring with his actions that he no longer wishes to own the object. It is an act which gives the object the status of הפקר.

The only valid claim which the homeowner may assert is that he discarded the object by mistake. If he were to make this claim we would need to examine if the object is so small that it might have been discarded along with the other rubbish because of some sort of oversight. For example, when a table is cleaned off, pieces of silverware might be discarded along with the remnants of the meal. In such a case the finder of this silverware needs to return it to its owner.

The case brought to the משנה הלכות was about a pen which the scavenger found in the garbage. The משנה הלכות felt that a pen would only be disposed of deliberately and he ruled in favor of the scavenger.

Thanks to everyone who attended the shiur. Stuart Fischman

Hello Everyone,

Our earlier shiurim were devoted to the study of the mitzvah to return lost objects. Yesterday we studied a different aspect of the mitzvah of השבת אבידה. We studied the mitzvah to help lost people. As חז”ל  say, השבת גופו is part of the mitzvah “to return.”:

דברים פרק כב

פסוק ב

וְאִם לֹא קָרוֹב אָחִיךָ אֵלֶיךָ וְלֹא יְדַעְתּוֹ וַאֲסַפְתּוֹ אֶל תּוֹךְ בֵּיתֶךָ וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ וַהֲשֵׁבֹתוֹ לוֹ:

תלמוד בבלי מסכת בבא קמא דף פא עמוד ב

הא דאורייתא הוא, דתניא: השבת גופו מניין? ת”ל: והשבותו!

There is another פסוק which tells us to help a Jew in need and that is

“…לֹא תַעֲמֹד עַל דַּם רֵעֶךָ אֲנִי ה’.”

The Gemarah asks why do we need two פסוקים  to teach us that there is a mitzvah to help a  person in need? The Gemarah answers that from the verse of השבת אבידה we can learn that we need to help. The פסוק of לא תעמד על דם רעך”” teaches that even if we ourselves cannot help, we must take the initiative to hire people to rescue the person in distress.

The obligation to aid to aid person’s in need covers all instances of potential harm. Whether it requires piling up sandbags to block floodwaters, pulling someone drowning out of a river or fending off wild animals we must help however we can.

We saw two questions that were put to the Poskim regarding the mitvah to help.

Rav Yakov Breisch zt”l (the author of  שו”ת חלקת יעקב) of Switzerland was asked by a doctor if he needs to inform a bride that her husband is suffering from a terminal disease. In this case the young man had at most two years to live רח”ל and his children will be terribly deformed. Clearly the bride needs to have this information before committing herself to marriage. On the other hand, physicians are expected to maintain confidentiality, and perhaps as long as the bride does not ask the doctor for information he has no obligation to volunteer any information.

Rav Breisch zt”l replied that the doctor must inform the bride about her husband-to-be’s condition. The Shulchan Aruch writes:

שולחן ערוך חושן משפט הלכות שמירת נפש סימן תכו

סעיף א

הרואה את חבירו טובע בים, או לסטים באין עליו, או חיה רעה באה עליו, ויכול להצילו הוא בעצמו או שישכור אחרים להציל, ולא הציל; או ששמע עובדי כוכבים או מוסרים מחשבים עליו רעה או טומנים לו פח ולא גילה אוזן חבירו והודיעו; או שידע בעובד כוכבים או באנס שהוא בא על חבירו, ויכול לפייסו בגלל חבירו ולהסיר מה שבלבו ולא פייסו, וכיוצא בדברים אלו, עובר על לא תעמוד על דם רעך (ויקרא יט, טז).

After providing this list of worst-case scenarios (drowning, robbery, wild animal attack, conspiracies etc.) the מחבר writes וכיוצא בדברים אלו. The Mechaber is saying that the list of disasters is not meant to exclude other situations where may stand idly by and not get involved. When a person can help, it is forbidden to watch passively as someone is imperiled. The doctor may not keep the knowledge of the man’s condition to himself since this would lead to the woman’s entering a marriage which will end in heartache and grief.

Rav Ovadiah Yosef zt”l was asked if it is permitted to donate a kidney to a person who will die without a transplant. The question revolves around the issue of whether a person may endanger his life to save another person’s life. The הגהות מיימיוניות quotes a Yerushalmi which says that a person must risk his life in order to save another person from death.  On the other hand, the Radba”z (one of the great authorities of the 16th  century) wrote that a person who risks his life to save another person is a “pious fool.”

Rav Ovadiah Yosef said that in order to answer a question like this we need to determine the degree of risk involved. When the Shulchan Aruch forbids us to stand idly by while someone is being attacked by robbers we are clearly being commanded to endanger ourselves in order to save the victim of the assault. Rav Ovadiah Yosef wrote that he spoke with leading physicians and they said that over 95% of the people who donate a kidney go on to lead long and healthy lives. The level of risk to the donor is minimal. Therefore, Rav Ovadiah Yosef ruled, it is permitted and it is a mitzvah to donate a kidney. What is forbidden is to enter into a situation where there is a serious level of doubt as to whether one will survive the rescue mission[1].

Rav Eliezer Waldenberg zt”l ( who was one of the great Poskim in Yerushalayim and the rabbi of the Sha’arei Tzedek hospital) rules that one may not donate a kidney. He felt that anyone who endangers himself in order to save another person is a “pious fool” and the doctors with whom he consulted said that at the least there is a possibility of danger (ספק סכנה)  when one donates a kidney. Only if a panel of expert physicians would say that there is possibility of danger may one consider donating a kidney.

Rav Ovadiah Yosef disagreed with Rav Waldenberg’s reasoning regarding the issue of risk. He concluded his own תשובה by saying that ה’ protects people who perform mitzvoth.

קהלת פרק ח

(ה) שׁוֹמֵר מִצְוָה לֹא יֵדַע דָּבָר רָע…

Thanks to everyone who participated in the shiur. Stuart Fischman

[1] Rav Ovadiah Yosef discusses this issue in volume 10 of Yabia Omer in the context of the mission to rescue the hostages in Entebbe which, thank God, ended successfully.

Hello Everyone,

Yesterday we began to study the everyday practical details of השבת אבידה . When is an object “lost?” Am I required to take every object into my care? When may I keep a found object?

Not every object which I encounter walking down a road is “lost.”  And not every found object is a windfall which I should take for myself.

If for example I see in an alley an umbrella propped up against a building it was obviously placed there by its owner. Since its owner may come back to take it, I must leave it there. Even if I am sincerely concerned for its safety, taking it with the intention return it to its owner is not a service. If the object has identifying marks, by taking it I am obligating the owner to come and claim his umbrella. If the umbrella has no identifying marks then the umbrella will never be returned to its owner.[1]

If I do take an object which has no identifying marks from where it was placed according to the Rambam I may keep it for myself. According to the Tosafot and the Rema if the object was deliberately placed in a location which is not secure at all (for example, an umbrella place against the wall of a busy train station) then the finder can keep it. If however the object was placed somewhere which slightly secure (an umbrella propped up against a wall in the lobby of a building) then the Rema says I should leave it there. If I pick it up then I need to watch the object until the arrival of אליהו הנביא. I may not return the object to its location because it will not be secure there.

If I find an object which has identifying marks and it is in a place which is either partially secure on not secure at all I need to take it with me and publicize that I have found it.

If I find something, how should I publicize it? In Israel there are several web-sites in which people publicize items that have either lost or found (you can find these sites by typing אתר השבת אבידה in Google). Rav Moshe Feinstein זצ”ל  wrote that it is sufficient to put up notices in local synagogues and next to the elevators in apartment buildings. The premise is that even if the owner of the object won’t see the notices , he will hear about them from friends. He added that publicizing the notice in local newspapers is a good idea, but the finder is not obligated to spend money on advertising, and even if he were to do so he would not be entitled to claim the cost from the owner.

What should a person do with a found object whose owner never arrives to claim it? The question is more acute if the object has no identifying marks.  For how long must the object be kept? Is the phrase יהא מונח עד שיבוא אליהו to be understood literally?

The Shulchan Aruch (סימן רסז) explains how lost objects need to be cared for. The finder is responsible for the maintenance of the found object. If caring for the object is burdensome, or if the object will decay (such as food) then the finder must appraise the object and write down its value. Then he may sell the object and use the money. When the owner arrives the finder pays him the value of the lost object.[2] If caring for the object is not burdensome and especially if it is unique and not easily replaceable (such as an antique watch) then the object must kept by the finder and cared for.[3]

Thanks to everyone who participated in the shiur. Stuart Fischman

[1] If I take the umbrella home  and realize that the umbrella has no identifying marks, returning it to the place  where I found it will not resolve the issue. The reason is that probably the owner came to retrieve his umbrella after I took it. When the owner sees that his umbrella is not where he left it he will conclude  that it was stolen and give up hope of ever finding it.

[2]  See the ש”ך  and סמ”ע to חו”מ סימן רסז:כא.

[3] See the סמ”ע  in note #2.

Hello Everyone,

Yesterday we studied  a teshuvah from Rav Ezra Batzri  on the subject of השבת אבידה which covers the main aspects of the mitzvah and how it should be fulfilled.

Rav Batzri was asked by the administrator of  a yeshiva what to do with the property that students leave behind at the end of the year. These items include books and items of clothing left behind in dorm rooms as well as books left behind in the beit midrash.

The administrator said that saving these items is not a viable solution. The yeshiva’s storeroom is full of forgotten property and keeping the property in the dorm rooms is unfair to the incoming students who need the space for their belongings. The school’s administration would like to give the forgotten property to the poor.

Rav Batzri replied that the property may not be given to the poor. The reason for this is that we may not assume that the forgotten property is abandoned and therefore ownerless.  On occasion the Halacha permits a person to keep abandoned property but this is only under specific circumstances. The literature describes two examples of abandoned property:

1) a cow left in a barn which has no doors

and

2) a wallet  cast away by its owner.

In the first case the Mechaber  holds that the cow is abandoned, while the Rema says the cow needs to be returned to its owner. In the second case the Rema agrees that the wallet was abandoned. The Rema and Mechaber disagree however if the finder of the wallet may keep it. The Mechaber says no while the Rema permits it.

Rav Batzri says that the items left in the yeshiva may not be treated as abandoned. The yeshiva is not the equivalent of a barn with no door. The yeshiva is a secure environment, and all the more so when we consider the dormitory rooms. Also, the students who left their belongings in the yeshiva did not perform an act which demonstrates their renouncing ownership of those belongings.

Objects forgotten in the street are sometimes treated as ownerless based on the principle of ייאוש-despair of recovering the object. Rav Batzri writes that we have no right to say that the owners of objects left behind in a yeshiva have despaired of recovering them. The owners know that the objects are in a secure environment. The fact that the owners have not taken the trouble to return to the yeshiva to claim their property does not mean that they have despaired of ever doing so. We can think of many reasons for their failure to do so, and therefore we may not say that the situation is one of ייאוש.

Giving the property to charity is also not a solution. Rav Batzri is emphatic in saying that the yeshiva cannot view the property as ownerless. The forgotten property still belongs to the students . This being the case to give the property to charity, far from being a mitzvah, is an act of theft. Rav Batzri sharply criticizes the yeshiva for even suggesting this course of action. He says that this is a sign of laziness and reluctance to perform the mitzvah of השבת אבידה. The only reason the administrator is suggesting to give the property to charity is because his conscience is bothering him

What does Rav Batzri say to do? He says that the yeshiva must contact the students and tell them that their belongings are in the yeshiva and they should come to claim them or instruct the yeshiva as to how to dispose of them.

In the case of items left behind in dorm rooms it is easy to know to whom to send the notices. Similarly many items have the owner’s name written inside. When it comes to property whose owners cannot be identified the yeshiva has no recourse but to write to every student who ever studied in the yeshiva. The letter should say that there are many objects belonging to former students in the yeshiva and that the objects will be given to charity.

New students of the yeshiva should be asked to sign a declaration that gives the yeshiva the right to give forgotten belongings to charity.

Rav Batzri acknowledges that to organize and carry out this mass mailing project is burdensome but the yeshiva’s administration must realize that this is the mitzvah of השבת אבידה . Failure to comply with these instructions would be a violation of the prohibition ” .לא תעמד על דם רעך”

At the end of the teshuvah which appeared in the annual publication תחומין the editors of תחומין suggested that the yeshivah may appraise the forgotten belongings and record the value of each and every item. Having done so, the yeshiva could sell or otherwise dispose of the property. Should a student return and claim his property the yeshiva could pay him the value of his belonging(s). This rule which permits the finder of a lost item to sell the item appears in Shulchan Aruch . It would allow the yeshiva to dispense of the forgotten belongings without having to take the trouble of carrying out the mass mailing .Rav Batrzi replied to this suggestion saying that it is not applicable in the case of the yeshiva. The Halacha permits the sale of lost items. However the items left behind in the yeshiva are not to be categorized as “lost.” As Rav Batrzi emphasized they were left behind in a secure location, and the yeshiva has no right to sell them.

That was yesterday’s shiur and I thank everyone who participated. Stuart Fischman

Hello Everyone,

In yesterday’s class we studied a case of השבת אבידה. A woman was invited to a party where the hostess put out bottles of soda for her guests’ use. On the back of one of the labels of those bottles of soda was a prize-coupon. The coupon awarded the person possessing it a new car. The guest who happened to pick up the bottle with this coupon was overjoyed by her good fortune. Her hostess however claimed that the bottle was hers and that she is entitled to the car.

The two women went to court and the judge said that this case should be decided along the lines of the “Judgement of Solomon.” In other words, the baby (or in this case the coupon) should be cut in half and each woman should receive half the value of the car.

Rav Ratzon Arusi ( who is the Rav of Kiryat Ono and holds a doctorate in Law from Tel Aviv University) wrote an article in the journal  Techumin in which he strongly disagreed with the verdict of the court. Rav Arusi wrote that the coupon was the property of the hostess, that the guest was bound by the mitzvah of השבת אבידה to return the coupon to the hostess and that her failure to do so was an act of theft.

Rav Arusi made the following points:

1) The right of guests to make use of the items given to them by their hosts is governed by the Halacha’s rules of etiquette. When a host provides food to her guests the guests may only take the food for their immediate consumption. Guests may not take food home for their family members without permission. They have no right to take objects when the hostess would object. In this case the hostess clearly objects to the guest’s taking the prize coupon.

2) Humans have a tremendous capacity for rationalizing improper behavior. The 13th century ספר החינוך writes that because humans are greedy and can explain away their peccadilloes the Torah has several prohibitions which all fall under the heading of theft. For example, while the Torah permits farm-workers to eat from the harvest produce while they are working, they may not take produce from the field to their homes.

דברים פרק כג

(כה) כִּי תָבֹא בְּכֶרֶם רֵעֶךָ וְאָכַלְתָּ עֲנָבִים כְּנַפְשְׁךָ שָׂבְעֶךָ וְאֶל כֶּלְיְךָ לֹא תִתֵּן:

The Sefer HaChinuch  observes that taking food home from the field is obviously theft so why does the Torah need to have specific  prohibition regarding this action? He answers that the farm workers can easily convince themselves that the owner of the field would not object to taking some produce home so the Torah warns them not to do so. Rav Arusi writes that that we can learn from the Sefer HaChinuch that we must be very careful to avoid telling ourselves that taking something for ourselves is permitted.

3) Rav Arusi goes on to discuss a case from the 16th century (from שו”ת מהרי”ט ). A man who was a guest in someone’s house took one of the apples which were placed before him and used to betroth a woman.  מהרי”ט ruled that the betrothal was invalid. He explained that the host gave the apples to his guest to be eaten and not for any other use. Rav Arusi holds that the same can be said about the bottles of soda placed before the guests at the party. The hostess gives her guests bottles of soda so that they would have something to drink. The hostess had no intention to give the bottles themselves to the guests. The bottles and their labels remain the property of the hostess. Therefore when the guest discovered that the label entitled its possessor to a new car the guest was obligated to give the label to the hostess and so fulfill the mitzvah of השבת אבידה.

4) Rav  Arusi goes on to discuss the possibility that the bottles might be viewed as ownerless property. Most people discard bottles as soon as they are empty. The guest who found the prize-winning label might say that since the hostess would have thrown the bottle away she may keep the bottle and its label for herself.

Rav Arusi says that this is not true. First of all, the hostess had not yet thrown the bottle away so it was still the property of the hostess. Secondly, even if the hostess had thrown the bottle away she did not know that the label of the bottle entitled its owner to a new car. In this case the fact that the hostess threw the bottle into the trash did not make the bottle hefker-ownerless. The Halacha recognizes that on occasion a person may toss an object into the trash because she is not aware of its value. This is “mistaken hefker” and the object remains the property of the original owner and not of its finder.

The reasoning behind “mistaken hefker”  applies to gifts as well. Even if we were to say that the hostess meant to make a gift of the empty bottles to her guests we will say on her behalf that had she known that one of the bottles had a label which entitled its owner to a new car she would not have given that bottle away.

Based on these points Rav Arusi wrote that the guest was obligated by the Torah to give the prize-winning label to her hostess. Her failure to do so was an act of theft.

Thanks to everyone who participated in the  shiur. Stuart Fischman

Hello Everyone,

Over the past few lessons we have seen the application of  קנין חצר to the laws of lost property. Under certain circumstances a person may acquire ownership of a lost object by virtue of its being located in his or her enclosed property.

Yesterday we saw a new application of קנין חצר. A peddler came into the yard of Mr. Smith and offered him five solid gold Rolex watches for only $100.[1] Mr. Smith did not have $100 but he wished to acquire the watches, so he said that his חצר should acquire the watches on his behalf and he would meanwhile go to get the cash to pay the peddler.

After Mr. Smith went off to get the money, his neighbor Mr. Jones came into Mr. Smith’s yard. He gave the peddler $100 and bought the watches. When Mr. Smith came home and realized what Mr. Jones did he complained, but Mr. Jones would not give him the watches.

The next day, the peddler reappeared in Mr. Jones’s yard[2]  and offered him five solid gold Rolex watches for $100. Mr. Jones did not have the cash. He said that his חצר  should acquire the watches for him and then he went off to get the money to pay the peddler. Mr. Smith saw this and took the opportunity to pay the peddler for the watches. However Mr. Jones would not give the watches to Mr. Smith in this case either.

Is Mr. Smith entitled to either set of watches?

The Rema quotes two views on this subject. According to one opinion, חצר can only acquire ownerless property. In this case of the peddler, since the peddler expects to be paid the mere presence of the merchandise in the prospective owner’s property does not effect a transfer of ownership. A second opinion is that the bargain being offered by the peddler can be regarded as a “found object” and an enclosed yard can acquire it.[3]

Mr. Smith accused Mr. Jones of applying the law inconsistently for his personal gain. When the peddler appeared in Mr. Smith’s yard, Mr. Jones asserted that the yard could not complete the transaction on Mr. Smith’s behalf. However, when the peddler appeared in Mr. Jones’s yard Mr. Jones asserted that the yard could complete the transaction on his (Mr. Jones’s) behalf. Mr. Smith claimed that Mr. Jones may not choose which of the two opinions to apply based on his personal convenience. The law is either like the first view or the second view, and he (Mr. Smith) is entitled to one of the two sets of watches.

The Rema writes that the situation is not as simple as Mr. Smith would like it to be. The Rema explains that each case is judged independently of the other. The fact is that the two views on the ability of קנין חצר to complete a commercial transaction are recorded in the 13th century work, מרדכי, and the מרדכי does not give us a final ruling on this question. Therefore the matter remains in doubt, and in doubtful cases we rule in favor of the one in possession of the object. It follows that if after the first incident with the peddler Mr. Smith went to court and the court ruled in favor of Mr. Jones (because of the Halalchic doubt and the reality of Mr. Jones being in possession of the watches), when Mr. Smith appeared in court the next day the court would again rule in favor of Mr. Jones for the same reason (Mr. Jones being in possession of the watches when the legal principle is in doubt). The court does not     decide to favor one of the legal theories over the other and this inconsistency is not problematic.

On the other hand Mr. Smith could have gone to court only after the second incident with the peddler. Mr. Smith would then have been asking the court to rule on the two incidents simultaneously. In such a case a court must be consistent and it must order Mr. Jones to give one set of watches to Mr. Smith. When judging the two events in one session the court needs to avoid applying contradictory principles to a single case.

Yesterday was the final shiur in the series on השבת אבידה. The next four shiurim will deal with the Halachot of Purim and Pesach. I hope you enjoyed the shiurim. If there is a subject in Halacha which someone would like us to study after Pesach please let me know. Thanks to everyone who participated in the shiurim. Stuart Fischman

[1]  This could only happen in the rarefied world of Halachic theory.

[2] See footnote #1.

[3] In the commercial law of the Halacha the transfer of ownership of movable items is not dependent on payment. Ownership is changed when the purchaser picks the object up or, perhaps, when the object is located in the enclosed property of the purchaser. After the formal act of transfer of ownership (known as “kinyan”) is completed the purchaser owes the payment to the seller but the object has changed hands.