יאוש והשבת אבידה

Bava Kamma 68b and Bava Metzia 21b.

Five minutes after you walk away from the pay phone on busy Main Street, you realize that not only did your call not go through, but you also forgot to retrieve your quarter. The next person who picked up the phone after you walked away found your quarter. May he keep it?

You walk into your local bank, and on the counter facing you lie three $20 bills under a paperweight. Clearly, they must belong to a previous customer who placed them there and has now left the bank. May you keep them?

The Torah requires us to return lost property to its owner. It follows that if the lost property has no owner, there is no duty to return it and the finder may keep it.

There are circumstances in which lost property changes from the status of being owned to being ownerless, הפקר, hefker.  This change in the status of a lost object is triggered by the state of mind of the owner upon discovering the loss. If the owner despairs of ever finding it, then the status of the lost object automatically changes to hefker. This state of despair is referred to in Halacha as יאוש, yi’ush and the owner of the object who despairs of finding it is referred to as being מיאש, meya’esh.

The state of mind of the owner, unless explicitly articulated by him, has to be inferred from the circumstances of the case. Because the inner workings of a mind are difficult to decipher, the Halacha gives us objective guidelines from which we may infer whether or not the owner is meya’esh.

The most important guideline is whether or not the lost object has a סימן מובהק, siman muvhak, an identifying mark. If it has, then the finder must assume that the person who lost it has not given up finding it because he will be able to identify it and claim it.

A siman muvhak may be something distinctive about the object itself such as a mark or an indentation that sets it apart from similar objects of its kind. Or it may be the exact size, weight, quantity or location of the lost object.

Another guideline is the position of the object when found. Does it look lost, or does it look deliberately set aside. Money lying on the floor of the bank looks lost in the eyes of the Halacha. But money deliberately stacked under a paperweight looks deliberately set aside. The only siman muvhak the money has is its location. If you remove the money, you obliterate the siman muvhak and thereby render it impossible for the owner to find it.

A further guideline is the location in which the object was found. The chances of finding an object lost in certain locations, such as at sea or down a drain, are so remote that it may be assumed that the owner was meya’esh even if the object has a siman muvhak.

The status of an object cannot automatically change to a status of hefker unless and until the owner realizes that he has lost the object יאוש שלא מדעת אינו יאוש, yiush shelo mida’at, eino yiush. Accordingly, the finder of an object, even one without a siman muvhak, may not keep it, if at the time he found it, the owner can prove that he did not yet know he lost it. The reason for this, as explained by the Ramban, is that a person does not despair of finding an object he does not know he has lost.

The finder then, upon picking up the object, assumes the role of a bailee and holds it on the owner’s behalf. Legally, the object is still in the possession of the owner and a person is not deemed to despair of finding an object, which is still legally, if not physically, in his possession. Even if the owner subsequently realizes that he lost the object, the finder may not keep it because at the time he found it, it was not hefker.

So the person who found the quarter in the payphone is permitted to take it and keep it. This is because, the owner, were he to challenge the finder, would have to prove that he, the owner, did not know that he lost the item before the finder picked it up. This would be a difficult thing to prove for there is a presumption that אדם עשוי למשמש בכיסו בכל שעה ושעה, Adam asui lemashmesh bekiso bekol sha’ah vesha’ah, a person is always checking to see that his money is in his pocket. But the person who found the money on the bank counter may not keep the money.

But there are two qualifications to this. First, there is the concept of לפנים משורת הדין, lifnim meshurat hadin, going beyond the letter of the law. Second, there is the concept of דינא דמלכותא דינא, dina de malchuta dina, which means a Jew must comply with the monetary laws of the land as if they were the laws of the Torah.

Therefore, even if the strict letter of the Halacha permits finders to be keepers in some of the situations described above, the soul of the Halacha would require one to return the lost object to their rightful owner.

Similarly, if the law of the land requires the lost object to be returned, the finder may not keep it even if the black letter law of the Halacha would permit it.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].