Siman 260

One who finds a hidden treasure in an old heap or in an old wall, where they do not remember who built the wall, and this wall was not held from time immemorial as the possession of the ancestors of the one currently residing there—the treasure belongs to the finder. This is so even if the one residing there is established for two or three generations from his ancestors, because it can be said that the treasure belongs to ancient people. The Rambam wrote [ibid.]: and this is provided that he finds it deep down, in the manner of all old treasures. And the Tur wrote: and this is provided that it has developed rust. But if the things indicate that this is a new treasure, even if he is in doubt whether it is new or not, behold, he shall not touch them [Shach], for in any case of doubtful placement one should not take it, as perhaps it was placed there intentionally. And there is no distinction whether it is placed in the wall from its midpoint outward or from its midpoint inward [Sma].

And one should not ask: granted that the hidden treasure belongs to the ancients, why should the owner of the courtyard not acquire it, for a person's courtyard acquires for him without his knowledge? The reason is that a courtyard does not acquire a thing that it is possible he will never find [Tosafot Bava Metzia 26a]. And the Rambam, of blessed memory, in the sixteenth chapter of Gezeilah, also answered because it is not known to him nor to others, and behold, this hidden treasure is lost from him and from all people; and it is a fortiori from a lost object that fell into the sea which was his, which the Torah permitted because it is lost from him and from all people—all the more so in this case where it was never his. Thus far his words. And his courtyard does not acquire a thing that it is possible he will never find [and the objection of the Ra'avad is answered]. And the reason for the matter appears to me to be that a courtyard acquires because of "hand" or because of "agency," and a thing that is in a person's hand must necessarily be known from this, and likewise with an agent who acts; therefore, there is in this courtyard neither the law of "hand" nor the law of "agency." And some have said the reason is because a courtyard does not acquire without his knowledge except for something that is common and frequent to find in a courtyard, but things that are not common to find in a courtyard, like coins and other movable objects, the courtyard does not acquire; and only animals that are accustomed to walk does the courtyard acquire if they are hefker [Mordechai ibid.]. And in siman 268 it will be further explained regarding a matter of absolute hefker, but not regarding a lost object even if the owners despaired, since had he known, he would not have made it hefker. However, from most of the Rishonim it appears explicitly that they do not hold so [Netivot HaMishpat], and also the essence of the reasoning is perplexing; and perhaps they hold that the acquisition of a courtyard without his knowledge is by reason of agency, and the courtyard is "seizing for his sender" in a place that is a disadvantage to others. And also one cannot say that at the time the first one acquired the courtyard from the seller who hid the treasure, did he not acquire the courtyard with everything found there, and likewise when this one sold it to another? For since the buyer did not know of this and did not intend to acquire it, and also the seller did not intend to transfer it to him, he does not acquire [Mordechai ibid.].

And if it is evident that the treasure was placed there not long ago, or if it is a new heap, it is forbidden to take it, for it was certainly placed there intentionally and the one who placed it will take it after some time. And similarly, a new wall—meaning, it is known that the ancestors of the one dwelling there built it and it never left their possession—a find found within it from the midpoint of the wall toward the outside belongs to its finder even if it has a siman, provided that it has accumulated much rust, for certainly its owners despaired of it since it has remained there for many days. And if it has not accumulated much rust, he shall not touch it, so that the owners may come and take it. And if it is found from the midpoint and inward, it belongs to the homeowner even if it has accumulated much rust, because a homeowner does not forget his object for many days, and the finder shall not touch it. And regarding that found toward the outside, even if it was found deep down in the manner of a hidden treasure, we do not fear that someone made a hidden treasure here and did not despair, for it is not the way to make a hidden treasure in a wall that is in use, and he certainly despaired [Netivot HaMishpat].

And if objects were found in it that fill the entire wall and have accumulated much rust, they divide it, and the finder takes half and the homeowner half. And even if a single long piece was found from end to end, since it is not discernible whether it was placed from the inner side or from the outer side, they divide it, for the owners do not have a chazakah in this; therefore, in a monetary doubt such as this, they certainly divide [Sma]. And even if the entire wall is sloped to one side, we do not say that it is from the high place and rolled to the low place, because this is not a clear proof. Nevertheless, if according to the visual appearance it is discernible from which place it came, we follow the discernment.

In what case is it said that they divide it, regarding stuffing or a bar of metal where there is no proof from which place it came there? However, a knife or a pouch and its like, it proves for itself from which place it came. For if the handle of the knife and the strap of the pouch are toward the outside, it certainly came from the outside and belongs to its finder, even if it is from the midpoint and inward. And if they are toward the inside, they belong to the homeowner, even if it is from the midpoint and outward. And in what case is it said that from the midpoint and inward it belongs to the homeowner? When he claims that it is his, or if he was an heir, for we claim on his behalf that perhaps it belonged to his father. But if he admitted that it is a found object, it belongs to its finder, for his courtyard does not acquire it for him, as I wrote in section 2. And all this is when the hole is perforated through the inside and the outside, but if from one side it is perforated and from the second it is closed, the matter is simple that we follow the perforated side [Shach].

It is a simple matter that anything found hidden in a person's domain—in his house, his courtyard, his field, his cellar, his stable, or his roof—if the object does not appear like a treasure placed there many generations ago, it belongs to the homeowner. The finder may not touch it, even if it is an object that has a siman and there is a remedy through proclamation and the homeowner provides a siman for it; nevertheless, since it is a guarded place and the owners placed it there intentionally, he shall not touch it. If it is not a guarded place, it will be explained nearby. And if the homeowner dwells in his courtyard with neighbors and it was found in a place where the neighbors have permission to use together with the homeowner: if it has developed rust such that it is evident it was placed there before the neighbors arrived, it belongs to the homeowner. And if not, each one can say "it is mine," and when there is a denial between them they shall divide it, for one does not have a greater chazakah than the other. And if they do not hold possession of it, "whoever is stronger prevails," and each one can impose an oath upon the other. However, the finder shall not touch it since it was not found in the manner of a lost object. And if it was found in the manner of a lost object: if it has a siman, he takes it and proclaims, and if it has no siman, it is his; and it will be explained in siman 262.

And if the courtyard is rented to others and the landlord does not dwell with them, it certainly does not belong to the landlord and belongs to the renters. This is when they still dwell there; but if they have all now departed from the courtyard, if they all departed as one, it is as if they all dwell in it. And if they departed one after another, it belongs to the last one. And similarly, if they dwelt there one after another, it belongs to the last renter, for the previous ones who departed from there certainly searched and checked and removed from the house everything that belonged to them. And even though perforce one of them forgot this object, nevertheless, it is more comfortable to attribute it to the last one, who did not concern himself with checking as much as those prior to him, who concerned themselves with checking well so that the one coming after him would not take it. However, some say that this is only regarding an item that has no siman, since there is no remedy through proclamation, it is more comfortable to attribute it to the last one; but regarding an item that has a siman and can be clarified through proclamation, it is better to proclaim. And all this is regarding an item that has not developed rust [Hagahot Ashri], for if it developed rust, it does not belong to the renters but rather to the landlord. And since we have written that it belongs to the last renter, therefore, if the last one is a violent person, it belongs to the finder [Tur]. And similarly, when small items like coins are found in cracks in a manner that it is possible they were not found through checking, one should not attribute it to the last one more than all of them, and it is likely that they searched and did not find and despaired, and it belongs to the finder [Shach]. And in this, there is no difference whether the landlord dwelt with them or not; and even if the landlord remained alone after the neighbors departed, nevertheless, his house and his domain did not acquire it for him if it was possible that the item would never be found, as I wrote in section 2.

If one made a lodging for gentiles, or if he rented it to three gentiles at once, for this is also like an inn, everything found inside the house belongs to its finder, even if the homeowner dwells with them [Netivot HaMishpat]. And even if someone hid it there, he has already despaired, thinking that the gentiles found it [Sma]. Therefore, even if there are also Israelites with them, it belongs to the finder. And if the guests or the renters departed from it and objects were found there, his courtyard has acquired them for the homeowner [Netivot HaMishpat]. And this is regarding something that is expected to be found, for if not so, his courtyard does not acquire it for him, as I wrote in section 2. And so too, if it is placed in a location that is not guarded, it belongs to the finder [ibid.]. And if he made an inn only for Israelites, he takes it and proclaims it regarding an object that has a siman, for he does not despair, as I wrote in siman 262 [Shach]. And so too, if he rented it to two gentiles, and certainly to one, this is not a place where many people are commonly found, and if it is his, he has not despaired of it, as I wrote there [see Shach and Netivot HaMishpat]. However, regarding an object about which the finder can say that it belongs to the renters, it belongs to the finder.

Reuven who dwells with Shimon in his house and pays him rent—if a broken deer or fledglings that cannot fly entered into the house, or any other metziah in a manner where the domain effects acquisition, both of them acquire it, for they are like partners in the courtyard, as a lease for a day is a sale. This is the opinion of Rashi [Bava Metzia 102a], the Rosh, and the Ra'avad in chapter 6 of Laws of Hiring [and the Responsa of Maharam of Rothenburg, siman 325]. However, some say that regarding the matter of acquiring a metziah, the lessee has nothing in this, and everything belongs to the lessor, for we do not say a lease for a day is a sale except regarding the matter of ona'ah. This is the opinion of the Rambam, of blessed memory, there, and our teacher, the Beit Yosef, wrote likewise in siman 313, and according to his words it is explicit in the Tosefta [Bava Metzia, end of chapter 8]. However, according to what will be explained there that from manure there is no proof, there is no proof from the Tosefta as well. It is also possible to distinguish between a house and a courtyard, for in a courtyard where the usage is not fixed, the domain of the lessee is only for his specific usage, but in a house where he uses it day and night, he is like a partner with the lessor; according to this, they do not disagree at all. There is one who wished to say that a courtyard of partners does not acquire a metziah for them, and the finder acquires it. The reason is that specifically two people who lifted a metziah, each one acquires for himself and for his fellow, but their courtyard, which is a single hand and the hand is shared by both of them, neither this one nor that one acquires, and it is as if it is lying on the ground [Ketzot HaChoshen]. But it is not so, for the courtyard is also like two hands, as for each one it serves as his hand and acquires for him and for his fellow. Furthermore, since a courtyard is based on the principle of agency, certainly when two people appointed one agent, he acquires for both of them. And if we say that a courtyard which is based on the principle of a "hand" does not acquire for both of them, there would be a distinction between the courtyard of a man and the courtyard of a woman according to what I wrote in siman 243, and it does not imply so from the Shas and the poskim [and in Bava Batra 84b it is regarding the matter of a partner acquiring from his fellow, and the Yerushalmi at the end of Bava Metzia is a different matter and will be explained before us].

It has already been explained in section 3 that in a new wall, everything found there toward the inside belongs to the owner of the wall, for it is in his possession. And in the Yerushalmi there, there is a dispute regarding a wall between two courtyards that fell, where the place and the stones belong to both of them, as I wrote in siman 157, whether the entire place of the wall belongs to both of them, and if one of the owners of the courtyards found something there, he can say that it is his since he has rights in the whole of it, or whether half belongs to this one and half to that one, and in whichever half it is found, it belongs to that owner [this appears to be its explanation; see the commentators, and the Ktzot HaChoshen, and the Netivot HaMishpat].

Even though a person's domain acquires a lost object for him, this is specifically regarding a lost object found there in his domain. However, the acquisition of a lost object, such as where two people lived in one house in partnership and a person came from the marketplace and one of them purchased a lost object from him, his fellow has no right to this. And even if one from the marketplace purchased it from him, the owners of the house have no portion in this, for it is not ownerless property such that the domain should acquire it. And even if it were ownerless, as long as it is in the hand of another person, the domain does not acquire it until it rests upon the ground [Sma]. However, if the one entering with the lost object intended to transfer ownership of it to the homeowner, but he did not recognize the homeowner and another man sat there and he imagined that he was the homeowner and sold the lost object to him, this purchaser must hand it over to the homeowner. For behold, the one entering intended to transfer ownership to him, and his domain acquires it for him even if it is a house that is not guarded, for since there is the intent of another to transfer it, we do not require a guarded courtyard [Shach]. And see at the end of siman 268.

One who finds money in a shop, and in shops there is something like a chest that separates the shopkeeper from the customers, where the shopkeeper sits inside of it with his merchandise and the customers stand outside of it: if he found it inside the chest, it belongs to the shopkeeper, for it certainly fell from him and he did not despair, even if it is an item that has no siman and even if a majority of Akum enter the shop, for not many people go inside the chest. If he found it from the chest and outward, it belongs to the finder, and his domain does not acquire it for him because many people enter and exit there and the place is not guarded even when he stands there, for standing beside the domain only helps when he is able to guard it, and a place where many people are found he is unable to guard [Rosh]. Therefore, there is one who says that also in a house where many people tread and one found a find, it belongs to the finder for this reason [Shach], and even with a majority of Israel. And so too, one who found money in the shop of a shulchani who exchanges coins, where the shulchani sits on a chair before the table and those exchanging stand outside the table: if he found it between the chair and the table, these belong to the shulchani; if he found it before the table, these are his. And even if he found it on the table, these belong to their finder, for it is to be hung that this is from those exchanging and not from the shulchani. And so too, some say that such is the law in a shop regarding one who found on the chest, that we hang that this is from those entering and exiting; and some say that it belongs to the shopkeeper, for it is not similar to a shulchani, as those exchanging also place their money on the table, whereas with a shop chest, it is not the way of those coming to buy to place their items on the chest. And in the Yerushalmi it is explained according to the first opinion. And there is no difference between finding money and items.

If one found an object that has a siman, such as an item or bundled coins, and there is a siman on the item in which the coins are bundled or in the number of the coins, if he found them before the chest or before the table or upon them: if those entering and exiting are a majority of gentiles, the loser despairs because he reasons a gentile found it, and it belongs to the finder. But if they were a majority of Israel, he is obligated to announce, for since there is a siman, the loser does not despair. And some say that even with a majority of Israel it belongs to the finder, because the loser reasons that it remained with the shopkeeper or the moneychanger and says, "Behold, I asked them and they did not answer; certainly their intention is to steal, and by law I cannot sue them as they will say that another found it." However, for the halacha, the primary view is like the first opinion, for who is to say that the loser does not reason that in truth another found it and will announce [Shach]. And know that moneychangers who stand with their table in the streets and in the markets, the law is also thus: that between the table and the moneychanger it belongs to the moneychanger. However, when the moneychanger has gone from there, it appears to me that it belongs to the finder according to a majority of gentiles, for he despairs as he reasons that a gentile found it. But with a majority of Israel he does not despair, even with an item that has no siman, for the finder knows that it belongs to the moneychanger.

One who finds fruit on the road alongside a field of trees, and the fruit fell on the road far from the tree, or the branches lean over the road and fruit is found beneath them: if it is the way of such trees to shed their fruit, and the owners know beforehand that they will fall, and if there are creeping things and swarming things or domestic and wild animals there that eat them, the finder is permitted to take them, for the owners despair of them. And similarly, if he knows that wayfarers who are not concerned with the prohibition of theft will take them, the finder is permitted to take them [Tosafot 21b]. And similarly, if the fruit becomes loathsome upon its fall, it is permitted to take them, for he despairs of them. But if it is not the way of this tree to shed the fruit, even though if the owners knew they would despair, nevertheless, since they did not know and it came into the hand of the finder before despair, they are forbidden, for it is despair without knowledge. And similarly, if the field belonged to orphans, it is forbidden to take them in any case, for orphans are not capable of despair and waiver; for other people, since they despair, they waive, but not orphans, who do not have the legal capacity to waive. And similarly, if it is known that the owner of the fruit is particular, it is forbidden to take them; for example, if he surrounded the place of the trees with a fence so that domestic and wild animals would not enter there, it is forbidden to take them even when they fell on the other side of the fence, for he did not know of this and it is despair without knowledge, unless the branches of the tree extend beyond the fence and the details that were explained apply, for then it is permitted to take them. And similarly, if he prepared a place where the fallen fruit would drop until he gathers them, behold these are forbidden, for behold he revealed his intent that he did not waive. And branches of a tree that lean into the courtyard of another Israelite, it is forbidden to take from the fallen fruit, for he knows that the owner of the courtyard will not take them. And that which was explained that a field of orphans is forbidden, this is specifically when it is known that the field belongs to orphans, but in a case of doubt we do not have to concern ourselves that perhaps it belongs to orphans [Bava Metzia 22b]. And similarly, regarding any lost object known to belong to orphans, their despair is of no effect, and one must return it to them.

This is the wording of the Rambam and the Shulchan Aruch: One who finds dried figs on the road, even next to a field of dried figs, they are his. Similarly, a fig tree that leans over the road and figs were found beneath it, they are permitted, for the owners despair of them because a fig and its like become loathsome upon their falling. But olives and carobs and their like are forbidden. Dates that the wind casts down are permitted, for the presumption is that the owners have waived them to all people because the domesticated and wild animals eat them due to their sweetness. And if it belonged to orphans, who are not capable of waiving, they are forbidden. Similarly, if the owner of the field was particular and enclosed the place of the trees, or prepared a place where the fallen fruit would fall until he gathers them, these are forbidden, for he has revealed his intent that he did not waive. Thus far his words.

If one found scattered fruit, if he found them in a manner of placement, where it is recognizable that the owners placed them there intentionally, behold, he shall not touch them. If he found them in a manner of falling, behold, they are his, and we are not concerned that perhaps the owners did not yet know of this and it would be despair not yet known, for according to the one who says that presumably with fruit the owners feel immediately when they are lost. However, according to the opinion of the Tur in siman 262, one must know with certainty that the owners became aware of this. And if he found scattered fruit in the place of the granaries where they threshed the grain, even though it is recognizable that this is not in the manner of a loss, nevertheless, if they are of the measure that will be explained, where the exertion is greater than the value of the fruit, the finder may take them, for we say that the owners left them as ownerless and were not concerned with gathering them. And our sages of blessed memory gave the measure [at the beginning of the second chapter] that if a kav of fruit was scattered over a duration of four cubits by four cubits or more, behold, these are his, because it is not worthwhile for the owners to trouble themselves with their collection. And if it was in less than this measure, he shall not touch them, for perhaps the owners left them to come and take them, as the exertion is not so great, and all the more so with more than a kav in this duration. And if half a kav was scattered in two cubits, it was a doubt to our sages of blessed memory, for perhaps since the exertion is not great he did not make them ownerless, or it is possible that relative to half a kav it is a great exertion and he made them ownerless. And likewise they doubted regarding two kavs in eight cubits, for perhaps since the value is much he does not despair, or since the exertion is very great he despairs. And likewise they doubted regarding a kav of dates or pomegranates in four cubits, for perhaps since they are easy to gather he does not make them ownerless. And likewise they doubted regarding a kav of sesame seeds in four cubits, for perhaps even though the exertion is very great, nevertheless since they are worth much he did not make them ownerless. And according to the opinion of the Rambam, of blessed memory, they also doubted when the kav in four cubits was of two species or more, he does not make them ownerless even with great exertion. And in all these it is a legal doubt, and it is forbidden to take them. And the Rambam wrote that if he took them, he is not obligated to proclaim, for such is his opinion in every legal doubt [the Gra]. And the Rosh disagrees with him [see Ran, Nedarim 7a].

If one found small pigeons that are not yet able to fly, which hop in their gait, if he found them near a shovak within fifty amot, they belong to the owner of the shovak. For thus the Sages, of blessed memory, said: any [pigeon] that hops does not hop more than fifty amot from the shovak, and there is no doubt [to attribute them] to another, and therefore we do not follow the majority of the world. Furthermore, there is no doubt that perhaps they fell from wayfarers, for it is not the way to transport pigeons on the road [Taz]. And if they were found outside of fifty amot, they belong to the finder, for certainly they fell from wayfarers, and the one from whom they fell despairs, for they have no siman. And there is no concern in this regarding "despair without knowledge," for presumably he became aware immediately [Sma]. And if they were found on a path surrounded by vineyards or gardens and orchards, even outside of fifty amot, they belong to the owner of the shovak, because by way of the vineyards they are accustomed to wander even outside of fifty amot because they gather the blossoms. And one should not say that if so, let us follow the majority of the world and say that they are from distant shovakim, for the Sages, of blessed memory, established that small pigeons that distance themselves from their shovakim, if they do not see the shovak when they turn their faces back, they will not distance themselves so much; and since the vineyards intervene between them and the shovakim of the world, we do not attribute [the pigeons] to them [Bava Batra 24a]. And if they were found between two shovakim, they belong to the closer shovak. And if they were found equidistant to the two shovakim, they shall divide. In what case is this said? When the pigeons of the two shovakim were equal in number; but if in one there are more pigeons than in the second, follow the majority even though it is further than the second, for [between] majority and proximity, we follow the majority even in a case of evident proximity [this is the system of Rashi and Tosafot and the Tur and Shulchan Aruch according to our version in Bava Batra 23b: since he measured we do not find etc.].

But some say that if they were found on a path, in any case they belong to the finder, for we follow the majority of the world and assume they fell from wayfarers. Only if they were found in a place where there is no path for the public, such as a path through vineyards and the like: if they were found within fifty cubits of a dovecote, they certainly belong to this dovecote; and beyond fifty cubits, they belong to the finder, for they have left their boundary and we follow the majority of the world. And if they were found between two dovecotes and both are within fifty cubits, we follow the closer one; and if one has more pigeons, we follow the majority [Nemukei Yosef ibid. and this is the approach of the Yerushalmi and likewise the intention of the Rambam, and the difficulty of the Beit Yosef and the Taz is resolved; and in the Gemara the version is: "Here we are dealing with a path through vineyards" and no more, and the explanation is that on a path through vineyards the public does not walk there, and it retracts from the previous resolutions; and examine this carefully].

And all this is regarding small pigeons that do not yet fly, but regarding those that fly, they belong to the finder in any case, for we hang the matter on the majority of the world, that they came from other places. And specifically when they appear in the manner of a lost object, but to snatch pigeons from the field is absolute gezel, for behold, it is the way of pigeons to fly and return to their dovecotes. And in siman 259 it was explained regarding geese and chickens that rebelled, and see what I wrote in siman 370, section 2.

One who finds an object in a guarded place, such as an ax or a garment by the side of a fence or by the side of a building where it is the way of craftsmen to place them there—whether it is known to the finder that the owners placed them there or whether it is a doubt to him—he shall not touch it, even if there is a siman on it, and all the more so if there is no siman. For this is not a lost object that one is obligated to return, as they were certainly placed there intentionally, even though he does not know if they were placed there intentionally or not [this is the intent of the Tur and the Rema, and the difficulty of the Shach in subsection 30 is well-settled]. If he took them to bring them to his house but has not yet brought them, he shall return them to their place; since this is not a lost object, he did not become obligated in its guarding by his lifting it. But if he brought it to his house, he shall not return them to their place, for perhaps while he went from here the owners came and did not find them, and it became like a lost object to them. Therefore, he shall announce, and the owners shall provide a siman and take them. If there is no siman, neither on the object nor on the place, it shall remain with him until it is clarified to whom they belong. If a person stayed there while he went and saw that the owners did not come, he may return them to their place [Taz].

If he found it in a place that is not guarded at all, even if it is known to him that it was placed there intentionally, if there is no siman in them, they belong to the finder. For example, small bundles of grain in a public domain that have no siman, because they are rolled about by the feet of people, and certainly the owners initially placed them for a short time to lighten the load and afterwards forgot them and despaired, since there is no siman neither in the object nor in the place. And if there is a siman in them, he takes them and proclaims. And in a place that is somewhat guarded, such as paths in the fields, whether it is known to the finder that the owners placed them there or whether it is a doubt to him, if there is a siman in the object or in the place, he takes them and proclaims. For since it is not guarded well there, it is more comfortable for the owners that the finder take them and proclaim than that he leave them there and a thief come and take them entirely. And if there is no siman in this, he shall not take them, for if he takes them, he will not know to whom to return them, and it is better to leave them there and the owners will come and take them if they are not stolen. And if he took them in his hand, even though he has not yet walked away from the place, it is forbidden for him to return them to the place from which he took them, since the place is not guarded well, and when he returns them it is like destroying them with his own hands. Therefore, it shall be left until it becomes clear whose it is and he shall deliver it to him. And so our sages, of blessed memory, said [Bava Metzia 25b]: Regarding any doubt of intentional placement, initially he shall not take it, and if he took it, he shall not return it, for he has become obligated in their return. And in section 22 it will be explained that there are those who disagree on this. And that which our sages, of blessed memory, said "he shall not return," this is when he brought them to his house.

Everything that we explained in the two sections is the opinion of most of our teachers, and so ruled our teacher, the Rema, that there are three distinctions in the matter as we explained. And the Rambam, of blessed memory, wrote in chapter 15 of Gezeilah: Anyone who finds a lost object, whether it has a siman or whether it does not have a siman, if he found it in a manner of placement, it is forbidden to touch it, lest its owners placed it there until they return for it. And if he comes to take it, should it be a thing that has no siman, he has destroyed the property of his fellow, for he has no siman in it with which to return it. And if it was a thing that has a siman, he has burdened them to pursue it and to provide its simanim; therefore, it is forbidden for him to touch it until he finds it in a manner of falling. Even if the matter was in doubt to him and he did not know if this thing was lost or placed, he shall not touch it. And if he transgressed and took it, it is forbidden for him to return it there. And if it was a thing that has no siman, he has acquired it and is not obligated to return it. And any thing that has a siman, whether a doubt of placement, whether in a manner of falling, whether in a private domain, whether in a public domain, he is obligated to proclaim. How so a manner of placement? He found a donkey or a cow grazing on the road during the day, etc., or he found a cloak or an ax by the side of a fence, he shall not touch them. But on a main road, he takes and proclaims, and so too anything similar to this. He found fledglings tied by their wings and hopping behind a fence or behind a hedge or in paths that are in the fields, he shall not touch them, lest their owners placed them there; and if he took them, they are his. And if they were tied with a knot that is a siman, he is obligated to proclaim. And so too if he found them fixed in their place, he is obligated to proclaim, for the place is a siman. Thus far his words. And our teacher, the Beit Yosef, transcribed it in the Shulchan Aruch. And the Rambam holds that regarding that which the sages, of blessed memory, said concerning a doubt of placement, that if he took it he shall not return it—that if it is a thing that has no siman, the finder has acquired it. And even though it is possible that the owners have not yet despaired, and it would be "despair without knowledge," this is only when it becomes clarified to whom the lost object belongs, for then he must return it afterwards; but as long as it has not been clarified, he may do with it as he wishes [Shach]. And he also holds that even regarding a thing that has a siman and in a doubt of placement, he shall not take it. And he also holds that in a doubt of placement, even regarding a thing that has a siman, he shall not take it initially. And the primary rule in law is like the first opinion, except that some say that even according to the first opinion, in a doubt of placement, when he took it in his hand and has not yet brought it to his house, he may return it to its place; for whichever way you look at it: if the owners placed them intentionally and it is a guarded place, why should he not return it to a guarded place? And if it is a lost object, since there is no siman in this, it is his by law, so why can he not return it? [Shach]. And there is one who says that even the Rambam does not disagree with all that has been explained, except regarding placement until it is clarified, and he holds that he should take it for himself [Ateret Zvi and Netivot HaMishpat].

If one found a covered vessel in a rubbish heap, he should not touch it, for we say that the owners hid them there intentionally. In what case does this apply? In a rubbish heap that is not intended to be cleared at all. However, if they initially made it to be cleared, one who hides something in it has committed a deliberate loss, and it belongs to its finder. And it appears to me that if there is reason to fear that it is stolen and the thief hid it there, he must proclaim it, for despair alone does not effect acquisition in a case of theft, as I wrote in siman 353. Similarly, if it is a rubbish heap that is not intended to be cleared and they subsequently decided to clear it, even though he found it covered, he takes it and proclaims it, for it is possible that the one who hid it does not know that they decided to clear it, and consequently the obligation falls upon the finder to return it to him. Likewise, if they were small vessels, such as a knife or a spit and the like, he takes them and proclaims them in any case, because it is possible that in the sweeping of the house they threw them there, and it is a loss like all other losses.