Siman 269

We hold that one who lifts a lost object for his fellow, his fellow has acquired it. And even though we hold that one who seizes for a creditor in a place where it causes a loss to others does not acquire, as I wrote in siman 105, and here it indeed causes a loss to others who cannot merit the lost object—here it is different, for since if he wanted he could merit it for himself, he can also merit it for others [Tosafot Bava Metzia 10a]. Furthermore, a lost object is not called a loss to others, for it is nothing more than the prevention of a gain [ibid. in Shita Mekubetzet]. Therefore, if Reuven lifted a lost object and said at the time he lifted it, "Behold, I am lifting this lost object in order to merit it for Shimon," Shimon has acquired it, and Reuven cannot retract. And even though Shimon did not tell him to merit it for him, nevertheless he has merited it, and even if Shimon is not here, for one may merit for a person in his absence. And some say that even if Reuven said nothing at the time he lifted it, but he admits that his intention was to merit it for Shimon, nevertheless Shimon has acquired it [Shach]. And it is not relevant to say regarding this that "matters of the heart are not matters," for we only say this in a place where his heart contradicts his actions and his words, such as one who sold an object and said that it was in his heart specifically on such and such a condition and the like; but without this, they are indeed matters [Netivot HaMishpat], just as regarding terumah, where intention is effective. Therefore, if he said he is lifting it for his own sake and admits that in his heart it was for the sake of his fellow, his fellow does not acquire, for it is "matters of the heart," and so too the reverse [see Rashba Kiddushin 50a and the Ran at the beginning of Pesachim, and it requires further study].

Two who lifted a lost object, both have acquired it, whether they lifted it as one or whether one lifted one end of the object first and the second came and lifted the second end from the ground; for at the time of the lifting of the first, he only acquired what was held in his hand, and therefore when the second lifted and the object was lifted in its entirety, we say that presumably it is pleasing to each one to also be the messenger of his fellow to acquire it for his own need and for the need of his fellow, and they divide it between them. Therefore, if the second lifter was a deaf-mute, an insane person, or a minor, the person of sound senses only acquired what is in his hand, because they do not have the legal capacity to transfer acquisition to another. And if the second was a gentile, it appears to me that both have acquired it; and even though there is no agency for a gentile, that is regarding actual agency, but regarding acquisition it exists.

In the following siman it will be explained that the find of a cheresh, shoteh, or katan does not involve the prohibition of gezel according to the law, but only because of darkei shalom the sages of blessed memory ordained that they acquire their find. And similarly, two chereshim who lifted an object both acquire it like two people of sound senses, for this too is included in the enactment. However, a cheresh and a person of sound senses who lifted an object as one, and the person of sound senses does not acquire through the lifting of the cheresh as has been written, therefore, since the person of sound senses did not acquire, the cheresh also does not acquire. They only acquire what they are holding in their hand, and regarding the rest, whoever seizes it from them has merited it. The reason is because in this case darkei shalom is not applicable, for regarding a person of sound senses they did not ordain that he acquire through a cheresh, and since the cheresh sees that the person of sound senses does not acquire, he too will not be resentful if he does not acquire, for he will think in his heart that he is no better than a person of sound senses.

In siman 198 it was explained that the measure of lifting is three tefachim, and similarly, his force is considered like his body; when it was lifted by his force, it is as if he lifted it with his hand. This is specifically when it was lifted upward by his force, but if it descended downward by his force, this is nothing. We find in the Gemara [end of Chullin] that one wished to purchase pigeons of a dovecote, and they instructed him to strike the nest so that the pigeons would fly upward, and it is as if he lifted them. However, descending downward is not by his force, for every physical object naturally descends downward. Therefore, if an object is resting on a board and he struck the board and the object rose three tefachim by the force of the striking, he has acquired it. But if it did not rise upward but rather fell to the ground, even when the board is three tefachim high from the ground and it has thus been moved three tefachim from its place, nevertheless he has not acquired it because it is by way of descent. There is one who says that this requirement that it be lifted three tefachim from the board applies when it fell back onto the board; but if it fell to the ground, even if it was only lifted slightly from the board by his force, since there are three tefachim until the ground, it has been lifted by his force and moved thereby three tefachim from the place of its ascent. But if it was not lifted from the board at all by his force, but rather fell from the board to the ground, he has not acquired it [Sma]. And there is one who says that when the board is three tefachim high from the ground, even if it was only lifted slightly and also fell back onto the board, he has also acquired it, since it is three tefachim high from the ground [Taz].

And this, that in its descent he has not acquired, is specifically when he was not grasping its second end in his hand; but when he grasped its second end, he has acquired even in such a case, since the manner of his grasping is higher than three tefachim from the ground. How so? A tallit that is placed half on a pillar that is three tefachim high and half on the ground, and one came and lifted the one end that was on the ground, and through his lifting the second end was detached from upon the pillar and fell to the ground, he has acquired it, since the one end is still in his hand and its second end is elevated by his power three tefachim from the earth. But if its second end was not yet in his hand while the tallit was in the air, he has not acquired it, even though the object is elevated from the earth by his power three tefachim, since this is the manner of its descent and he was not holding it at all while the object was entirely in the air. And therefore, even if its one end is in his hand and the second end has not detached from upon the pillar, he has not acquired, even though if it were detached it would be elevated by his power, for as long as it has not detached in practice, it is not considered an elevation, and he acquires only what he grasps in his hand.

It has already been explained that one who lifts a lost object for his fellow, his fellow has acquired it and he cannot retract. However, if he lifted it without specification and afterwards said that at the time of lifting he lifted it for his fellow, and afterwards while the object was still in his hand he said, "I was joking with you and in truth my intention was for myself," he is believed; since at the time of lifting he said nothing, and also that other person did not request that he acquire it on his behalf [Tur]. But if the other person requested that he lift and acquire it on his behalf—for example, one who was riding upon an animal and saw the lost object and said to his fellow, "Acquire this lost object for me," and he lifted it without specification—the rider has acquired it, even though it has not reached his hand. The one who lifted it is not believed to say, "I lifted it for myself," even while it is still in his hand; for since he lifted it via his request, if it were not his will to acquire it [for the rider], he should have said at the time of lifting, "I am lifting it for myself." And this is specifically when he said, "Acquire it for me," but if the rider said to him, "Give it to me," where the acquisition is not from the time of this person's lifting but rather from the time he delivers the object to him, and this person took it and lifted it without specification and afterwards said, "I have acquired it, for my intention was for myself," the one who took it has acquired it. For even if we were to say that the intention of the one lifting was for his fellow, nevertheless, he himself did not request that he acquire it on his behalf. But if he delivered it to the rider and afterwards said, "I acquired it first and lifted it for myself, and this fact that I delivered it to him, my intention was not to transfer ownership to him but only to show it to him," there is nothing in his words. For even if we were to say that it is so, that he lifted it for himself, nevertheless, we are witnesses that when he delivered it into his hand, he gave it to him as a complete gift, since previously the rider requested that he give it to him and he did so.

Our teacher, the Rema, wrote: Reuven said to Shimon, "Buy such-and-such merchandise for us together," and Shimon went and bought it, and afterward said that he bought it for himself—there are those who say that he must divide it with Reuven, for it is like one who lifts a lost object for his fellow. And there are those who say that if Reuven did not have money, Shimon acquired what he bought, and if he consented to buy for both of them, it is as if he acquired it for both of them. Thus far his words. And the first opinion is the first opinion in siman 183, section 5, that when he did not say before the acquisition that he was buying for himself, he presumably bought for both of them, for if not so, he is a deceiver, and presumably he did not commit a wrong. And here it is explained that the acquisition is like one who lifts a lost object for his fellow. And the "there are those who say" hold that if Reuven did not have money, he is believed even afterward to say that he bought for himself, for it is not similar to a lost object, as a lost object was also within the ability of the other to lift, which is not the case with the purchase of merchandise, and this is not deceit and he is permitted to do so. And it is the second opinion cited there, unless he explicitly consented at the time of the acquisition and said that he was buying for both of them. And our teacher, the Rema, relied there on his words here.