Siman 259

It is written: "You shall not see your brother's ox or his sheep wandering and ignore them; you must surely return them to your brother. And so shall you do for every lost object of your brother which is lost from him and you found it; you may not ignore it." The Torah warned that one who sees a lost object is obligated to attend to it to return it to the owners. And if he turned a blind eye and did not take it, and the owners had not yet despaired, he has violated a positive commandment of "you must surely return them" and a negative commandment of "you may not ignore it," unlike the one who says that when he has not taken it into his hand he does not violate the positive commandment but only the negative commandment. For the Rambam wrote this explicitly in the eleventh chapter of Gezeilah and the Nimukei Yosef in the second chapter of Bava Metzia.

If one took the lost object in order to steal it, and the owners have not yet despaired of it, he violates the positive commandment of "you shall surely return them," and he violates two negative commandments: the negative commandment of "you shall not steal" and the negative commandment of "you may not hide yourself." Even if he returns it afterward, he has already violated the negative commandment of "you may not hide yourself" and requires repentance. However, regarding the negative commandment of "you shall not steal" and the positive commandment of "you shall surely return them," he has rectified them by returning it to the owners, for the negative commandment of "you shall not steal" is a negative commandment transformed into a positive commandment, as it is written: "and he shall return the stolen object which he stole," and similarly the positive commandment of "you shall surely return them," for behold, he returned it. But the negative commandment of "you may not hide yourself" applies only at the time he does not take it to return it, and since he took it in order to steal it, behold, he has violated it and it is impossible to rectify it. And there are some of our teachers who hold that he also did not rectify the negative commandment of "you shall not steal" and the positive commandment of "you shall surely return them," and that which he gave to him now is nothing but a mere gift. Their reasoning is that behold, in this object there are two prohibitions: the prohibition of theft and the prohibition of a lost object. This person who took it in order to steal it is considered, regarding the lost object, as if it were still lying on the ground, since he did not take it to return it. When the owners despair of it, he acquires it through despair like all lost objects found after despair. Even though a lost object that came into his hand before despair is not affected by subsequent despair, as I wrote in siman 262, that is because he is considered the watchman of the owner of the lost object, and therefore the despair of the owners is not effective since the watchman stands in his place and the watchman did not despair, and his despair is like a mistaken despair. But when he took it in order to steal it, it is acquired by him completely upon despair by virtue of the law of a lost object [the Ramban in the name of a Gaon and the Shach, and the difficulty of the Ketzot HaChoshen and the Netivot HaMishpat is resolved, and examine this closely].

And if he took it before ye'ush with the intent to return it, and after ye'ush he intended to steal it, he only violates the positive commandment of "you shall surely return them," but he has not violated the prohibition of theft. For it is only called theft when he takes it at the time of taking for the purpose of stealing it, as in the matter of "and he stole the spear from the hand of the Egyptian" regarding Benaiah ben Jehoiada. And if he waited until after ye'ush and took it, he only violates the prohibition of "you may not hide yourself." And even though we have said that one who sees a lost object and averts his eyes and does not take it also violates a positive commandment, that is when he walked away from it and left it; but this one who waited still had the ability to fulfill the positive commandment, and when the owners despaired and the positive commandment passed, it did not pass because of him but rather because of the ye'ush. However, he violated "you may not hide yourself" in that his intent was to wait [see Nimukei Yosef and Taz].

Among the conditions of a lost object is that it must be resting in a place from which one is obligated to return it, such as a place where Israelites are commonly found and in a place where it is appropriate to doubt whether it is a lost object, and it will be explained in siman 260; and that it be in a manner that proves it is a lost object, and it will be explained in siman 261; and in a place where it is appropriate to doubt that it is a lost object; and that he has not despaired of it; and that it is not a lost object by intent, such as one who throws a purse into the public domain, and it will be explained there; and that it must be worth a perutah; and that there is a siman on its body or its location, and it will be explained in siman 262; and that he would care for it if it were his own, to the exclusion of a case where the care is not according to the honor of the finder, and it will be explained in siman 263; and that it must belong to one whose lost object he is obligated to return, and it will be explained in siman 266; and if any one of all these details is missing, he is not obligated to return it.

A place where one is obligated to return: How so? One who finds a metziah in a place where Yisrael are commonly found is obligated to proclaim, for presumably the owners have not despaired, as they think a Yisrael found it and will return it to them. The order of the proclamation will be explained in siman 267. And even if the city is half Akum and half Yisrael, or even if its majority is Akum, provided he found it in a place where the majority of those passing there are Yisrael, he is obligated to proclaim. But if those passing are half and half in a place where the majority is Akum, he is not obligated to proclaim [Sma]. And likewise, even if the majority of the city is Yisrael, provided he found it in a place where the majority of those passing there are Akum, he is not obligated to proclaim. And even if he knew that it fell from a Yisrael and it has a siman, because the owners have despaired, as they will assume an Akum found it and will not return it to them; and this is in a case of things where it can be assumed he knew immediately of its falling, as written in siman 262. And there are those who say that if the metziah is books or similar things, items that are not typically purchased except by Yisrael, he does not despair of them even in a place where the majority is Akum, for the owner of the lost object thinks that even if an Akum finds it, he will sell it to a Yisrael, and the buyer will proclaim and I will provide a siman for it [ibid.]. And if the city is half and half and also those passing there are half and half, he is obligated to proclaim. And let it not be difficult for you, when the majority of the city is Akum and the majority of those passing is Yisrael where we said he is obligated to proclaim, why do we not follow the majority? For is it not so that in a case of majority and proximity we follow the majority? For it can be said that since it is possible to clarify through proclamation, we clarify. But when the majority of those passing are Akum, the owner of the lost object certainly despairs [Taz]. And according to this, in a case of half and half passing, even with a majority of Akum, he is obligated to proclaim for this reason [it appears to me].

Therefore, one who finds a barrel of wine in a place where the majority are idolaters, the wine is forbidden for benefit and the vessel is permitted but requires purification. If an Israelite comes and provides a sign for it, then the wine is permitted for drinking if the barrel is sealed, as there is no concern that an idolater opened it and touched the wine; for if he had opened it, who would have compelled him to reseal it? Nevertheless, one is not required to return it to the owner of the lost object and it belongs to its finder, for he presumably despaired of it and is not believed to say that he did not despair since the majority are idolaters. See Yoreh Deah siman 129.

And our sages, of blessed memory, said [Bava Metzia 24b] that even in a case where according to the law one is not obligated to return it, nevertheless, it is good and upright to act beyond the letter of the law to return it to the owner of the lost object when he has provided a siman for it. And if he is poor and the owner of the lost object is wealthy, he does not need to act beyond the letter of the law. And if the finder is wealthy, some say that we compel him to return it [Shach]. And for what reason do we compel regarding a lost object to act beyond the letter of the law? Because he has no loss from his own pocket [it appears to me].

If one found a slaughtered animal or bird in a place where the majority are gentiles and the majority of the butchers are Israelites, and in a manner where there is no concern for tereifah—such as where the shechitah is recognizable—it is permitted for eating and belongs to the finder because the owners despair of them, for they will assume a gentile will find it. Therefore, even if he knows it was lost by an Israelite, it is his. This is so even when there is no majority of Israelite butchers, since he knows it is kosher and was lost by an Israelite. And if a bird snatched meat before us and flew and cast it in another place, it belongs to the finder because the owners have despaired, even in a majority of Israelites, because it is the way of a bird to carry it far away. See Yoreh Deah siman 1 and siman 63.

One who rescues from a lion or a bear, or from the tide of the sea—which is where the strength of the sea washes away—or from the flooding of a river—which is when the current of the river washes away and carries to a distance—even if the owners are standing there and screaming, these belong to the rescuer. For it is considered like one who screams over his house that fell or over his ship that sank in the sea. Our Sages, of blessed memory, supported this from the verse, "which is lost from him and you find it," implying that which is lost from him but is available to any person; this excludes all these cases, which are lost from all people, and they are like hefker, and the one who acquires from them is like one who acquires from hefker. See what I wrote in siman 262, section 7. Therefore, if there are obstacles in the river such that an object floating in it stops and is delayed there, if it is an object that has a siman, it is not considered ye'ush by default when we have not heard explicitly that he despairs.

And if it is a thing that has no siman and fell into the current of a river that has obstacles where it gets delayed there, the Tur wrote, and this is his wording: If his beams and his wood fell into it, which is a thing that has no siman, he should return them to them if the owners are pursuing them [immediately when they heard and did not stand there at the time of the washing away], then it is proof that they are theirs and he returns it to them [when it was delayed in the hand of another]. And this is provided that it is in a manner that if the owners were standing there and seeing that it washed away, they would have been able to rescue it immediately [for they would not have allowed it to go far off]; it follows that they certainly did not despair [at the time they heard]. And then [so it should be said] even if they are not there when it washed away and another came and rescued it, he did not acquire it even if they despaired afterward, since it was not fit to despair [for it is yiaush shelo mida'at]. And if it is in a manner that the owners would not have been able to rescue it immediately from the place it washed away [even if they were standing there at the time of the washing away], but only until it goes far off, and there it will not avail that he can rescue it, because before he arrives there, perhaps the beam will come there and the people of that place will not know that it is his so that they would return it to him because of his pursuit after it, and it is fit that they should despair [even when they stood at the time of the washing away because it is not in his power to overtake them before their arrival at the place and the people of the place will not give it to him since there is no siman]. Or if they stood there when it washed away and despaired such that they did not pursue after it, it is yiaush [even when they are able to rescue it immediately from the place it washed away, since they did not pursue, you have no greater yiaush than this]. And if it is undefined, such that we did not know if they despaired or not, it is not yiaush [such as when it is not possible to clarify this matter when they did not engage in pursuit, and consequently since we did not know if they despaired or not, it is not yiaush in a case where they were able to rescue it immediately]. So it appears to me to be the explanation of the Tur, which the commentators found very difficult. Thus far his words.

And according to the opinion of the Tur, regarding an object that has a siman, even if the owners stood there and did not pursue to rescue it, one must return it, for it is not considered ye'ush in this case that they did not pursue, as they thought: "Why should we pursue? It will surely be delayed in some place, and I will provide a siman and take them." And so too, even if they were unable to rescue it immediately at the time of the flooding, even when they stood there and the items were hastening to arrive at some location before the owners, the owners of that location must also return them to the owners since there is a siman. And this is not similar to the tide of the sea, which carries it very far away since there are no obstacles to delay them.

And if at the moment of the sweeping away the owners were able to rescue easily, and afterward they were able to rescue with difficulty, if they stood there at the time of the sweeping away and did not concern themselves with rescuing immediately with ease, they certainly despaired; for why should they have waited? Rather, they certainly despaired, and that which they troubled themselves afterward to rescue, they changed their minds, and it is of no effect if another person acquired them. And if they were not there at the time of the sweeping away, one must return it to them, since they are able to rescue with difficulty, they certainly did not despair, since they pursued it at the time of their hearing, and what else could they have done? And even if they did not know of this at all until after they were swept away into the domain of another and they despaired, one must return it, for it is despair without knowledge, as this is not similar to the tide of the sea, for there they are unable to rescue even by means of difficulty [Tosafot Bava Metzia 22a and Mordechai ibid.].

This is the wording of our teacher, the Rema, in section 7: And if it is a thing that has no siman, if the owners are able to rescue it [if they were standing there] and they are pursuing the lost object [when they heard], or if he is not there [at all, since] had he been there it is possible that they would have rescued it, the finder has not acquired them [even if they despaired when they heard, for it is despair that is not conscious]. But if it is a thing that he cannot rescue immediately [even if they were there] and he stands [or that he stands, Sma] and does not pursue it [immediately], he certainly despairs [and his pursuit afterward is of no effect], and in an unspecified case it is not despair. Thus far his words. [And this is exactly like the words of the Tur, and the annotator wrote that it is from the Tosafot and the Mordechai, and so wrote the commentators; and in my humble opinion it appears as I have written, and examine it closely].

And even though according to the law he is not obligated to return it, nevertheless, it is good and upright to return it, as has been written in section 7. And there was an incident involving a ship that sank in the sea, and the governor and the communities decreed that anyone who buys from the heathens who rescued from that lost property must return it to its owners. And Rabbeinu Gershom Me'or HaGolah ruled that they are obligated to return it, and he receives from the owners only what he paid. And even though it is legally ownerless, nevertheless, the law of the kingdom is the law, and the ownerless property declared by a beit din is ownerless, even a beit din in any generation [Mordechai ibid.]. 15. Geese and chickens that fled from the owners in a manner that it is impossible for the owners to return them, such as if they flew far away, they are ownerless and whoever takes hold of them has acquired them, for they have left the domain of the owners. However, it is good and upright to return them. See in siman 260, section 19, and in siman 370, section 2.

Geese and chickens that fled from the owners in a manner that it is impossible for the owners to return them, such as if they flew far away, are hefker, and anyone who takes possession of them has acquired them, for they have left the domain of the owners. However, it is good and upright to return them. And see in siman 260 section 19 and in siman 370 section 2.

A river where they make a dam to hunt fish, where they make a blockage in the river so that the fish will be trapped and remain there and not pass further, and Jewish workers are accustomed to making it and repairing it when it breaks—one who finds a lost object there is obligated to proclaim it, for it is certainly of a Jew. And this is specifically when the majority of those occupied there are Jews, for if not so, he despairs of it and imagines that a non-Jew found it and will not return it to him. And so too the opposite: a place where non-Jews guard permanently, even if the majority of those entering and exiting are Jews, he is not obligated to proclaim.

It is written, "for every lost thing of your brother," and our sages, of blessed memory, expounded [Bava Metzia 31a] to include the loss of land, that one is also obligated to return it; for example, if one saw a flood of water coming toward his fellow's field, he is obligated to dam before them in order to save it. And so too in all matters of loss that could occur to his fellow, where it is in his power to prevent the damage, he is obligated to prevent it. And if he did not do so, he violates a positive commandment of "you shall surely return them" and a negative commandment of "you shall not be able to hide yourself."