Siman 267

How is the mitzvah of returning a lost object performed? If he recognizes the owner of the lost object, he cares for it until he delivers it to his hand. Even if he did not deliver it literally to his hand, but rather returned it to his garden or to his ruin that is guarded against thieves and so that it will not flee from there, he has fulfilled the obligation of returning a lost object, even though the owners did not know of the return. And even though regarding a watchman, a thief, or a robber, one is obligated to deliver specifically to the hand of the owners, as will be explained in their respective laws, nevertheless regarding a lost object, the Torah increased the ways of returning, as it is said, "you shall surely return them," even a return without the owner's knowledge, provided it is a guarded place. But if he returned it to a place that is not guarded, such as a garden or a ruin that is not guarded, and it was lost from there, he is liable for its replacement. And if he returned it to a place that is not guarded but the owners are accustomed to enter and exit there, he is not obligated to care for it further, for the owners will see it. And this is specifically at a time when it is the way of the owners to go out and see, such as in the morning; but in the afternoon, it is not the way to go out and see, for everyone is then busy with his work. And even in the morning, this applies only to a lost object that is not a living creature; but regarding living creatures, he is always obligated to care for it until he returns it to the guarded domain of the owners, and the owner's knowledge is not required. But to a place that is not guarded, even though it is the way of the owners to go out there, it is not a return, for by the time the owners go out, it will flee, since it is accustomed to go out.

If he returned it and it fled, returned it and it fled, even a hundred times, he is obligated to return it, as it is said, "You shall surely return them" [hashev teshivem]. "Hashev" is not an action, which would imply that he performs the action and that is sufficient, but rather it is an infinitive, meaning returning even a hundred times. The Rambam and the Shulchan Aruch wrote: If he saw an animal that fled from the pen and he returned it to its place, he has fulfilled the mitzvah and does not require the knowledge of the owners. Thus far their words. The explanation of these matters is that even though regarding animals we require a guarded place, as was written in section 1, this is when its flight was not from the pen. But when it fled from the pen, there is no reason that the Torah should obligate him to bring it to his house. And even if it is accustomed to flee, nevertheless, it is sufficient to return it to the pen, which is a fixed place for animals. Nevertheless, if he returned it and it fled, he is obligated to return it as was written. [And it appears to me that from this itself he inferred it, for if he returned it to a guarded place, how did it flee?]

One who finds a lost object and does not recognize the owner announces it in synagogues and study halls. In a time when there are people who say that a found object must be handed over to oppressors, he informs his neighbors and acquaintances and that is sufficient for him. Regarding all matters of announcements, it is customary to announce in the synagogue and study hall after the prayer or between Mincha and Maariv, but not between Ashrei and Uva LeTziyon; however, they are permitted to announce before Ashrei [Sma]. If they announced a certain matter and people came and said that they know of this but are unable to tell because the owners entrusted the matter to them in confidence that they would not reveal it, it does not avail them and they are obligated to tell, and this is from the enactment of our teacher Gershom Meor HaGolah [ibid.].

How does one proclaim? He should not proclaim vaguely, "I found a lost object," for the owner of the lost object will not know what to check if it was lost from him. Rather, he should proclaim from the lost object; for example, if he found coins in a manner that he is obligated to proclaim, as written in siman 262, section 18, he should proclaim, "I found coins." And so too, if he found a garment, or an animal, or documents, he should proclaim, "I found a garment," or "an animal," or "documents." Then the owner of the lost object will come and provide a siman regarding its body, or its location, or its number, or its weight, or its measurement—each object according to what it is—and he shall take it. And we are not concerned that since he announced from the lost object, some swindler will come and take it, for behold, he does not return it until he provides simanim properly. And if we were to be concerned that perhaps he knows its simanim, there is no end to the matter, for even if he proclaims vaguely, "I found a lost object," perhaps the swindler will think of it upon hearing that so-and-so lost this object. Rather, since he provides simanim, we are not further concerned. And we also do not concern ourselves that perhaps he sold it to another, as written there in section 16. And in truth, regarding a person who is established as a swindler, we are more stringent with him, as will be explained.

There are three types of signs: poor, intermediate, and distinct. What are poor signs? If one comes and says, "This garment is white," or "red," or "green," or "long," or "short," and the like, of which there are many such as these, this is not a sign at all; and even many poor signs are nothing [see Beit Shmuel, Even HaEzer siman 17, subsection 73]. And what are distinct signs? If one comes and says, "There is a hole in this garment on its right side at its bottom, three fingers distant from its edge," or "There is a mark in this place," and anything similar to this that narrows down the exact location, for with such a sign they permit even an agunah. And they are called intermediate when one specifies its measurement, or its weight, or its number, and the like, or a sign of the place, or the order of its placement, as written in siman 262. Regarding a lost object, these are called distinct signs, but regarding an agunah, due to the gravity of the prohibition of a married woman, they are not called distinct signs because our Sages, of blessed memory, were in doubt whether such signs by which a lost object is returned are of Torah authority and effective even for the prohibition of a married woman, or if they are of Rabbinic authority and for a married woman they do not permit with this. And know that the Rambam, of blessed memory, calls intermediate signs "distinct" regarding a lost object, since regarding monetary matters this is a distinct sign. According to this, you shall walk your way securely so that there will be no contradiction from the laws of monetary matters to the prohibition of a married woman [see chapter 13 of Hilkhot Aveidah and the Maggid Mishneh and Kesef Mishneh there, and examine closely].

Therefore, if the owner of the lost object comes and provides poor signs, we do not return it to him. One who is established as a deceiver, we do not return it to him with a medium sign until he brings witnesses that it is his, but with a clear sign we return it even to a deceiver. Originally, anyone who lost a lost object and came and provided medium signs, we would return it to him unless he was established as a deceiver. Once deceivers increased, the beit din enacted that they say to him: "Bring witnesses that you are not a deceiver," if he is a man whom the beit din does not know. If he does not bring witnesses, he must provide a clear sign, for this is effective even for a deceiver. There is one who says that for a certain deceiver, even a clear sign is not effective, but only witnesses [Taz]. For the halacha, it appears like the first opinion, for behold, even regarding a married woman we permit based on this. So too wrote the Ra'avad [ibid.] that a clear sign is like witnesses. The Rambam also holds so, but he calls a medium sign "clear" regarding a lost object as I have written [and the Rema who wrote in the language of "there are those who say" refers to a medium sign according to the Sma, and according to the Shach it is also well-settled, and such is his way; and examine this].

If two people came and gave identical simanim, he shall not give it to this one nor to that one, but rather it shall be left until one admits to his fellow, or they make a pesharah between them, or one of them brings witnesses. And one is able to say to the second: "Either you swear that it is yours, or I will swear." And if each one says, "I will swear and take," or "You swear and take," it shall be left. And they are able to divide it between them [Shach]. And so too, if both of them brought witnesses, it shall also be left until one of them admits; and two witnesses are equal to a hundred.

If one provided simanim and the other brought witnesses, it shall be given to the possessor of the witnesses, even if they do not testify that it fell from this person, but rather that they recognize it is his; and even if the first provided truly distinct simanim, for in a place of witnesses, simanim are nothing [Shach]. And not only this, but even with witnesses against witnesses, simanim do not decide the matter; for example, if one brought witnesses and also provided simanim, and the second brought only witnesses, it shall be left aside, for simanim in a place of witnesses are nothing, though there are those who hesitate regarding this [ibid.]. And if this one provided medium simanim and the second provided distinct ones, it appears to me that we give it to him; and even if simanim are of Torah authority, nevertheless, it is certainly more likely that it belongs to the possessor of the distinct simanim, for it is no worse than length and breadth which will be explained. And if each provided equal simanim and one of them also brought one witness, this is nothing and he shall leave it aside. And there are those who say that the one who is against the witness must swear that it is his, and if he does not wish to swear, we give it to the possessor of the witness. And the first opinion holds that since even after the oath they will not give it to the one who swore, there is no relevance for an oath for this [Taz]; and so is the primary ruling [Shach].

If one found a garment or the like, and this one brought witnesses of weaving that they wove it for him, and that one brought witnesses of its falling, it is given to the one who brought witnesses of the falling, for the falling is a clear sign, and the witnesses of weaving are also not lying, as it is true that this one wove it and sold it to the second. And if this one gave the measurement of its length and that one gave the measurement of its width, it is given to the one who gave the measurement of its length, because the width is possible to estimate while the owners wore it, and width is what is called according to the height of the man, and with the length it is wrapped around the body. And why is the height called width? Because their garments were short and long and they would join two for one tallit like our tallitot of mitzvah. Therefore, in our garments it is the opposite, for the width is more of a sign than the length, as the length is possible to estimate when he was dressed; and this matter depends on the understanding of the beit din [Shach]. And if this one gave the measurement of its length and width and that one gave the sign of its weight, it is given to the owner of the weight, because since it is not the way to weigh the tallit, it is a most distinct sign [Tur]. And even if the second says the measurement of the length and width, we give it to the owner of the weight. And specifically a tallit, which it is not the way to weigh, is a distinct sign, but a vessel that it is the way to weigh, this is only like an intermediate sign [the Gra]. And if this one says: such is the measurement of its length and such is the measurement of its width, and that one says: such and such is the measurement of the length and width together, but I do not know how much is the length and how much is the width, we give it to the one who says the length on its own and the width on its own. And the general rule of the matter is that these things depend on the sight of the eyes of the judges, to the one who gives the sign that is greater than the second [Shach].

If he announced and the owner did not come, it shall remain with him until Eliyahu comes, as it is said: "And if your brother is not near to you, or you do not know him, then you shall gather it into your house," and he does not acquire it. For since it has a siman, there is a concern at every moment that perhaps its owner will come. And as long as the lost object is with him, he is obligated to care for it so that it does not deteriorate, and he is obligated to improve it, such as shearing the sheep. And even the shearing of an ox, which is a small matter, he is obligated to care for this if it is the way of the owner to shear it [it appears to me]. For it is written: "And you shall return it to him," and our sages, of blessed memory, expounded: See how you shall return it to him, so that it does not deteriorate. Therefore, regarding the shearing of an ox, even though it is a small matter, nevertheless when he shears it there will be some value in this, he is obligated to do so. And this too our sages, of blessed memory, learned from the verse regarding an ox [see Shach].

And one must inspect it and examine it so that it does not spoil. How so? If one found a garment of wool, he shakes it once every thirty days and no more, because it becomes damaged [Tur]. And two people should not shake it because they will tear it; rather, one person shakes it. And he should not shake it with a stick. And one of linen he should not shake at all, for shaking is harmful to it. Rashi, of blessed memory, explained the opposite: that one shakes linen and does not shake wool. And this depends on the garments in each and every place according to their manufacture [it appears to me]. And he spreads it upon the bed only if the garment requires this and not for his own need; and even if his intention is for his own need and for its need as well, one should not spread it, so that he does not leave it on the bed longer than its need requires. And when guests happen upon him, he should not spread it before them even for its own need, lest it be stolen, unless he knows them to be upright people.

If he found wooden vessels, he may use them for their own needs slightly so that they do not rot. If he found copper vessels, he may use them with hot water and certainly with cold water, but he shall not place them upon the fire because it wears them down. If he found silver vessels, he may use them with cold water but not with hot water because it blackens them; and with cold water it is permitted even for his own needs, for there is no concern in this [Tosafot]. If he found gold vessels or glass vessels, he shall not touch them, for they do not require cleaning. If he found shovels or axes, he may use them with soft material but not with hard material so that they do not become notched.

If one finds books similar to our sifrei Torah, he reads from them once every thirty days, and if he does not know how to read, he rolls them so that they do not become moldy. He should never study from them a matter he has never studied before, because during the first study the book is damaged. He should not read a parashah and repeat it a second time, and he should not read a parashah and translate it because he lingers a long time over its translation. He should not open it more than three pages, and two people should not read from it in two different subjects, but they may read in one subject; however, three are forbidden even in one subject. And some say the opposite: that two may read in two different subjects but not in one subject, because this one pulls toward himself and that one pulls toward himself and they will tear, whereas in two subjects there is ample space for them; and three are forbidden in any case. In all this, the law is also the same for our books. If he does not know how to read, he opens them to the air so that they do not become moldy. And some say that with our books one may study one time even a matter he has never studied before, because they do not require as much handling as their books which were made as scrolls [Ramban]. One of the great authorities wrote that all this applies to books of Tanakh, but Gemaras and poskim which require great depth of study are forbidden to be studied from in any case; however, this is not implied by the Rishonim. And the law is the same when one deposits books with another, that he must conduct himself with them as with a lost object [Tur].

Our sages, of blessed memory, said that when one finds tefillin, he assesses their value and may use them immediately if he wishes, because they are a common item to purchase at any time, and he may also sell them; for why should he guard them since they are common to purchase? [ibid.] From this it is clarified that regarding any item common to purchase, one need not trouble himself with its guarding and may sell it [and so it appears from the Nimukei Yosef]. However, some say that this applies only to tefillin, but regarding other lost objects, a person prefers his own [the Rosh]. And so it appears from the wording of the Rambam. However, when there is excessive trouble or it is possible that it will certainly become ruined, he may certainly sell them. And regarding a domestic animal or a horse, it is certainly more comfortable for a person with his own animal, which he knows and has trained to his will [Rashi 28b].

If one found a living thing and he must feed it, if it was something that performs labor and eats, such as a cow, a horse, or a donkey, he attends to them for twelve months from the day of the find, and he rents them out and takes their wages and feeds them. If their wages were more than their food, the remainder belongs to the owners. Similarly, with a hen, he sells its eggs and feeds it for the entire twelve months. From this point forward, the sages, of blessed memory, said ibid.: their value, and he sets it aside. Rashi explained that he should perform an appraisal in beit din and sell them, and set the money aside with him and guard it until the owners come. The Rambam explains that he should perform an appraisal on the value, how much it is worth, and it belongs to him and the owners in partnership according to the law of anyone who appraises from his fellow, and when the owners come they shall divide the profit, and if there is a loss it shall also belong to both of them. And some say that he may appraise them even without a beit din and take them for that value for himself, for we do not suspect one who returns a lost object of committing an injustice in the appraisal, and it is not similar to a deposit [Rosh]. And it appears to me that regarding renting the animal for labor, according to everyone he may rent it to himself, and similarly take the eggs for himself, and we do not trouble him to rent it out and sell the eggs every day.

If one found calves or foals, which are young donkeys that require extensive care, they did not burden him to care for them for twelve months. Thus our sages, of blessed memory, said: if they are of the pasture, which graze by themselves in the field, he shall care for them for three months; and if they require fattening, he shall care for them for only thirty days. Similarly, if he found geese or large male roosters, he shall not care for them for more than thirty days. If they are very small, such that their care is extensive, and similarly anything whose care is more extensive than its profit, he shall care for them for only three days. From this point forward, he assesses their value and sets it aside according to the explanations we have clarified. And to assess for half-profit, even according to the Rambam, is not applicable here, for there is no profit in them that would be sufficient to care for this [Sma]. Something that can spoil, he sells immediately. And it appears to me that in any matter where the finder must toil in the care of the lost object and suffers a loss thereby in his business, he may receive payment for his toil, as was written in siman 264, that his own takes precedence.

As long as the lost object is with him, if it was stolen or lost, he is liable for its responsibility according to the law of a shomer sachar. And even though he does not take payment for this, and even in a place where he takes payment, he only takes according to the loss that he incurs as has been written there, nevertheless, since at the time he is engaged in its guarding he is engaged in a mitzvah, and if at the time of the action another mitzvah comes before him that requires him to spend money upon it, he would be exempt from it, for one who is engaged in a mitzvah is exempt from a mitzvah—this is considered like payment. And some say that a shomer of a lost object only has the law of a shomer chinam, because that which we wrote is an uncommon matter. And this law is a legal doubt, as has been written at the beginning of siman 72 regarding a lender on a mashkon, and the same applies here [Shach].

But when he is permitted to sell it, it is not only that he is a shomer sachar, but he is even liable for accidents like a sho'el. The reason is because our sages, of blessed memory, said: "What shall he do with the money? It shall remain with the finder and he is permitted to use it." This permission to use it renders him like a sho'el, and if they were lost to him by accident, he is liable to pay, even though he has not yet used them; for since he has permission to use them, the money is with him like something borrowed. In what case does this apply? That they permitted him to use the money of a lost object that he sold because he exerted himself to attend to it. But if he found money, when he is required to return it, he may not use it; therefore, if they were lost by accident, he is exempt, for he is over them only a shomer sachar or a shomer chinam, as has been written. And there are those who say that this which we said—that even though he has not used them his law is like a sho'el—this is only according to the first opinion, that regarding an ordinary lost object his law is like a shomer sachar, therefore due to the permission of use he becomes liable like a sho'el. But according to the "there are those who say" that regarding an ordinary lost object he is only a shomer chinam, it is sufficient that the permission of use should make him like a shomer sachar. However, when he has actually used them, it is simple that according to everyone his law is like a sho'el [Tur].

And there is a great question to ask regarding this: why did we say according to the first opinion that the permission for use makes him like a borrower? For in siman 292 it will be explained regarding one who deposits money in a place where the bailee is permitted to use them, nevertheless, before he has used them his status is only that of a shomer sachar. However, the answer is because money of a deposit depends on the depositor to take them at any moment from the bailee; therefore, we estimate the mind of the bailee that it is not his desire to obligate himself as a borrower as long as he has not used them, for perhaps he has no desire to use them at all because he fears that perhaps the depositor will come immediately and receive them. But regarding a lost object, where he does not know its owner and it is possible that a long time will pass, we estimate the mind of the finder that his desire is to borrow them and to be obligated for accidents [Nimukei Yosef, chapter 2 of Bava Metzia]. And there are those who answered that regarding a lost object, where in any case he is a shomer sachar, consequently the permission for use makes him like a borrower; this is not the case for a deposit, where in any case he is only a shomer chinam, it is enough that the permission makes him a shomer sachar [Meor, ibid.]. And this is according to the reasoning we wrote in the previous section.

One with whom money of orphans was deposited shall not use them; therefore, his law is only like a shomer chinam [Tur]. And it appears to me the reason is because they feared that if he uses them, he will delay them for a long time because there are no claimants for this. The Rambam and the Shulchan Aruch omitted this law, yet it is an explicit Gemara [Bava Metzia 29b; and see the Rosh there at the end of siman 17, and from the Tur it appears to me as I wrote]. And some say that one who finds money of orphans shall not return it to them until they grow up, for it is not a proper return to minors, as it is considered like a place that is not guarded [Nimukei Yosef ibid.]. And it appears that he interprets the Gemara regarding a lost object and not regarding a deposit, and so it is possible the Rambam and the Shulchan Aruch interpret [or they interpret that he was a homeowner and not a shopkeeper, and they do not hold like the Rosh]. And if they have an apotropus, he shall return them to him [Ateret Zvi].

One who finds a lost object, and the owner of the lost object comes and says that there was more and wants to obligate him in an oath that he did not find more, he does not need to swear. And so our Sages, of blessed memory, said: One who finds a lost object does not swear, for the sake of the order of the world; for if you obligate him in an oath, he will leave the lost object and go his way, as he will be afraid that the owner of the lost object will say there was more and obligate him in an oath. Therefore, even if he found a purse of money and the owner of the lost object claimed that there were two purses tied together and it is impossible that he would find one and not also the second, nevertheless he shall not swear for the reason we have stated. However, if he claimed, "I saw that you picked up two of my purses," and similarly with other lost objects when he claims, "I saw that you picked up more," it is like any other claimant and respondent and he is obligated to swear [Sma].

And all those days that he cares for the lost object before he sells it, if he fed them from his own when it is a living creature, he takes from the owners as much as he expended without an oath for the sake of the repair of the world. And all the more so if he hired them out or rented them out and expended their expenses from this, the owner of the lost object cannot make him swear how much he expended and how much he received. And even though there are those who hesitate regarding this, nevertheless, such is the primary ruling in the law.