Laws of Returning Lost Property - Rabbi Yehoshua Lipsh shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast of Machon Halacha Chabad.

00:09 Speaker 2 Let’s talk a little about the laws of returning lost property, and how they apply in practice today. First, it’s important to understand that returning lost property means saving someone else’s possessions. That’s what the mitzvah is about. If a person sees that someone else’s property is in danger of being damaged—for example, as the Gemara puts it, water is about to wash away someone’s land—or, today, if someone sees heavy rain pouring into another person’s store, they have a duty to save that person’s property. When we say “returning lost property,” we usually think right away of a ball we found in the street. That’s true, but saving someone else’s property is also part of the mitzvah. That is its essence. So first we’ll discuss what the obligation actually is: when must you return something, how do you return it, and what happens if you can’t find the person who lost it? If someone sees a lost item belonging to a Jew, they must take care of it, make sure it is kept safe, and return it to its owner. If they pass by and fail to pick it up, they have violated both “You shall surely return them” and “You may not ignore it.” In other words, there is both a positive mitzvah obligating us to return lost property and a prohibition against ignoring it. Incidentally, a woman is also obligated in the mitzvah of returning lost property. Women are obligated in all prohibitions, and this positive mitzvah is not time-bound. In any case,

02:09 Speaker 2 a woman, too, is obligated to return lost property. Although a person is obligated to return a lost item, if, G-d forbid, they fail to do so, the later halachic authorities agree that they are not liable to compensate the owner. Nevertheless, they have violated “You may not ignore it” and failed to fulfill “You shall surely return them.” As we said, the obligation is not limited to something I found; it includes saving another person’s property from harm. That is why the Gemara says that if someone sees water about to flood another person’s field, they must put up a barrier to save it. A finder is obligated to return a lost item only if it is known—we’ll soon discuss how we know this—or at least clear that the owner has not given up hope of recovering it. But if we know the owner has given up hope, or it is reasonable to assume that they have, there is no obligation to return it. So if someone finds an item with no identifying mark at all, they are not obligated to return it or even pick it up. Why? Because we assume its owner has given up hope. With Hashem’s help, we’ll soon discuss how, even though there is no obligation in such a case, if the finder knows whose item it is, they should certainly return it beyond the letter of the law. Another case is finding an item in a place where most passersby are non-Jews. Or, alternatively, today, even in a place where they are Jews but, unfortunately, do not return lost property: if someone finds an item where most passersby are people who do not return lost property, who do not observe mitzvos, and so on, then in that case,

04:09 Speaker 2 there is also no obligation to return it. Why not? Because we assume the owner has given up hope. They think: if I lost it on a particular street where most passersby are non-Jews, or people who do not return lost property, it probably won’t come back to me. If it is clear, or reasonable to assume, that the owner has given up hope, there is no halachic obligation to return the item. Along similar lines, the halacha, already stated in the Mishnah, says that the obligation to return a lost item applies only when it does not conflict with another prohibition. The Alter Rebbe gives the example of someone who finds an item that is muktzeh on Shabbos and cannot pick it up. If they find money on Shabbos, there is no obligation to return it, even if it has identifying marks and so on. Why? Because we do not violate even a rabbinic prohibition for the sake of the positive mitzvah of returning lost property. Similarly, the Mishnah discusses a kohen whose lost item is in a cemetery, and so on. He is not required—or permitted—to violate the prohibition in order to return it. The same applies to a rabbinic prohibition. We won’t go into the laws of muktzeh now, but we’ll note that on Shabbos it is permitted to move something in an unusual manner. So if there is a way to move it like that, it would seem that he is obligated to do so. A lost item worth less than a perutah does not have to be returned. The obligation applies only to an item worth a perutah or more. But today this has changed somewhat. Why? First, let’s just mention that there are opinions—though this is not the accepted halacha—

06:02 Speaker 2 that the value of a perutah is determined by what it is worth at the time. In other words, “worth a perutah” means enough to buy something. In the time of our Sages, you could buy something with a perutah, a coin containing a very small weight of silver. Today you can’t buy anything with that. Its value fluctuates between ten and twenty agorot; it has no real purchasing power. So there are opinions that even today, when we speak of the value of a perutah, we mean the value of something significant. The Sma cites such an opinion somewhere, though in connection with a different matter. In any case, when it comes to returning lost property today, consider an object such as an ordinary key. If the key has no real monetary value to its owner—though perhaps a key isn’t the best example, since it can be very valuable to someone who needs it to open something—let’s take some other inexpensive object. The person who lost it has given up hope from the outset. It isn’t important to them. If it were truly valuable, it would matter to the person who lost it. But if it does not matter to them, it would seem that the finder has no obligation to return it. Someone finds a sock in the street. It may be worth more than ten agorot, but it is almost certain—or certain—that the person who lost it is not waiting for someone to return it. They have given up on it. They aren’t expecting ever to get it back. They won’t go looking for it, and they aren’t concerned about it. So today, if someone finds something, even if it is worth a little more than a perutah—say they find an orange, for example; no—

07:37 Speaker 2 never mind, an orange has no identifying mark, but suppose it were an orange with an identifying mark. That makes no difference. The person does not have to return it, because its owner certainly gave up hope as soon as it fell. They don’t want to go looking for it, and they aren’t concerned about getting it back. Now, a lost item belonging to a non-Jew: if someone finds an item they know belongs to a non-Jew, they are not obligated to return it. Suppose someone finds a wallet and can see that it belongs to a non-Jew. The Torah says “your brother’s lost item.” This is not your brother’s lost item, so Torah law does not obligate you to return it. But the halachic authorities, and already the Gemara, say that if the finder knows returning it will sanctify Hashem’s name—that it will be a kiddush Hashem, showing that someone who observes mitzvos values returning lost property—then doing so is praiseworthy. If you find a wallet or any other item, even one belonging to a non-Jew, it is clear that returning it will sanctify Hashem’s name. People will see that someone who observes Torah and mitzvos returns lost property even though they could have kept it and profited greatly. This is how the great sages of Israel and the Tannaim acted, as the Gemara relates in well-known stories. What’s more, where failing to return it would cause a chillul Hashem, one is obligated to return it. Suppose a non-Jewish construction worker came to a yeshivah and lost his wallet there. He remembers leaving it in the yeshivah, or losing it in a shul. If it isn’t returned, that is a chillul Hashem. What will he say? He’ll say, “Look, there are people who observe mitzvos, and they must have found it, so...”

09:19 Speaker 2 He knows for certain, and they did not return it.” That is a case of chillul Hashem. Where there is a chillul Hashem, one is obligated to return even a lost item belonging to a non-Jew. But as an introduction, let’s talk a little about the law of the owner giving up hope of recovering an item. The halachah is that once the owner has given up hope, the item belongs to the finder. But there is one important condition: the owner must have given up hope before the finder found the lost item. In other words, suppose someone lost a wallet. Clearly, after a year he has given up hope. But if I found it and picked it up just a moment after he lost it, the obligation to return it took effect. So whether a year or two years have passed makes no difference. The obligation to return it remains with me forever. But suppose someone finds a wallet after a year, and it is clear to him that it was lost a long time ago. Presumably, the owner has given up hope. Someone goes into a forest and finds a wallet already covered with dust, with a layer of dirt on it. It is clear to him that it was lost a long time ago. In that case, the owner has certainly given up hope. Even if the wallet has an identifying feature, the finder may keep it. But if it is not clear to him when the owner gave up hope, he must return the lost item. Halachah describes several cases where it is clear that the owner has given up hope. Generally, when an item with no identifying feature is lost, we assume the owner has given up hope. If it is something valuable, the person presumably notices immediately that it is missing. Suppose someone drops a hundred-dollar bill. The bill has no identifying feature; he has no way to prove it belonged to him. So we assume he has given up hope. Therefore, if someone finds a hundred-dollar bill,

11:03 Speaker 2 it belongs to him, because the person who lost it has presumably given up hope, and the finder is not obligated to return it. More than that: halachah says that if someone sees another person drop something with no identifying feature into the sand, and sees him searching for it on the beach—even bringing a sieve to search for the lost item—that does not mean the person has not given up hope. He has given up hope. In the language of halachah, he is searching the way many people do. Many people come to the beach and try to find something, perhaps with a sieve, but in fact this person has given up hope. So if someone finds the item, even while its owner is still searching for it, it belongs to the finder, because this is the kind of item whose owner has clearly given up hope. Similarly, if someone explicitly hears the person who lost an item say, “I lost something. What a shame I lost it. Oy, what a financial loss”—that is the wording used by the halachic authorities—the item belongs to the finder. Why? Because he knows with certainty that the person who lost it has given up hope. In any event, one must know that, as the Alter Rebbe says, all this is the basic law. But where rabbinical ordinances, communal agreement, or the law of the land require a lost item to be returned after the owner has given up hope, one must return it. The Alter Rebbe cites the Shach, who says that the law of the land requires every lost item to be returned to its owner, even if the owner has given up hope. We will not go into whether the law of the land applies in this regard in Israel today, or in what circumstances and to what matters it applies. But apparently, in other countries with established legal systems, many halachic authorities may consider the principle that the law of the land is binding to apply. And if so, if

12:55 Speaker 2 the law indeed requires someone to return a lost item, then whether or not its owner has given up hope makes no difference: he must return it. The Alter Rebbe says something more. Everything we have said about a person not always being obligated to return a lost item applies only to the strict letter of the law. But beyond the letter of the law, in the Alter Rebbe’s words, even if most passersby are non-Jews, he should return the lost item to someone who provides an identifying feature. He does not have to search for the owner, since the person has given up hope. But if the owners come and claim the item, he should give it to them. And if he himself knows who it belongs to—take the example we gave earlier, of someone who finds a wallet in a forest covered with a layer of dirt and mud—the owners may already have given up hope, and by the strict letter of the law he is not obligated to return it. But beyond the letter of the law, he is obligated to return the item because he knows who owns it. And the Alter Rebbe writes: “Likewise, with an item that has no identifying feature, if he knows for certain whose it is, he should return it to him even though the owner has already given up hope.” Why? Because giving up hope is not the same as completely relinquishing ownership. The person did not declare the item ownerless. He gave up hope because he thought he would not find it. So ideally, it should be returned, and some halachic authorities write that he can be compelled to go beyond the letter of the law. Therefore, whenever someone finds an item and knows who owns it, even if the owner has given up hope, he should go and return it to the owner. In practice, then, we have already said that someone who finds an item must pick it up and then announce that he has found it. So how does he actually make the announcement? If he does not know who owns the lost item, he must announce it until the owner comes forward and provides identifying features. What does making an announcement entail? It says that in the time of the Beis Hamikdash, announcements were made between the three pilgrimage festivals. In practice, the halachah today is that he announces it in shuls and study halls. The Gemara says that during a time of persecution, when the authorities decreed that anyone who found money had to give it to the king, it was enough to inform one’s neighbors and acquaintances. In other words, the main thing is to publicize, in the area where he found the lost item, that an item has indeed been found. So in an ordinary case, someone who finds a lost item should put up notices there, in the local public places—in a shul, a study hall, a store, and the like—so that the owner actually hears about it. Now, if he has announced it and a long time passes without the owner coming forward, the halachic ruling is: “It shall be kept until Eliyahu comes.” Some people mistakenly think that if someone announces a lost item for a certain length of time and its owner does not come forward, it becomes his. No. Halachah says that if someone picked up a lost item and became obligated to return it, in that case it shall be kept until Eliyahu comes. In other words, keep the item until Eliyahu comes—until Eliyahu Hanavi is revealed with the coming of Moshiach and says whom the item belongs to. That is the plain meaning of “until Eliyahu comes.” The halachah is that one may announce a lost item even on Shabbos. Even if the item may not be moved on Shabbos, one may still announce it so that the person who lost it can provide identifying features and come take it after Shabbos. The halachic authorities say that if a very long time has passed—someone found a lost item and fifty years later its owner still has not been found—and it is possible or likely that the owner has died by then,

14:33 Speaker 2 The owner of the lost item can come and give identifying signs. What counts as announcing a lost item? It says that in the time of the Beis Hamikdash, announcements were made between the three pilgrimage festivals. In practice, the halachah today rules that one makes the announcement in shuls and study halls. The Gemara says that during a time of persecution, when a decree required anyone who found money to hand it over to the king, it was enough to inform one’s neighbors and acquaintances. In other words, the main thing is to publicize, in the area where the item was found, that a lost item has been found. So ordinarily, someone who finds a lost item should put up notices there, in the local public places—in a shul, a study hall, a store, and the like—so that the owner will hear about it. In practice, if he has announced it and a long time has passed without the owner coming forward, the halachah rules: “It should remain in safekeeping until Eliyahu comes.” Some people mistakenly think that if someone announces a lost item and its owner does not come forward after a certain amount of time, the item becomes his. No. The halachah says that once someone picks up a lost item and becomes obligated to return it, it must remain in safekeeping until Eliyahu comes. That is, you keep the item until Eliyahu Hanavi is revealed with the coming of Moshiach Tzidkeinu and says whom it belongs to. That is the plain meaning of “until Eliyahu comes.” The halachah permits announcing a lost item even on Shabbos. Even if the item may not be moved on Shabbos, one may still announce it so that the person who lost it can give its identifying signs and come take it after Shabbos. The halachic authorities discuss a case where a very long time has passed: someone found a lost item, and even after fifty years its owner has not been found. In such a case, if it is possible or likely that the owner has already passed away

16:34 Speaker 2 in that case it certainly belongs to the finder. The halachic reasoning is that some authorities have written that if this is money for which there are no claimants—that is, even the heirs do not know about it—then it does not pass to the person’s children as an inheritance. That is one opinion. But in a moment we will discuss a few other reasons concerning what can be done with a lost item today when its owner cannot be found. Now, here is the real question, the practical question: What happens when someone finds a lost item? He finds, I don’t know, a ball. He finds a Parker pen in a yeshivah or a shul, or the like. He asks the people around him, puts up a notice, and nobody comes to take it. Half a year passes, then a year. We said that by the strict letter of the law, if we follow the ruling in the Gemara, his obligation to return it lasts until Eliyahu comes. Once the item came into his possession, the obligation to return it does not lapse. We said that if he knows for certain that the owner has died, he is no longer obligated to return it. Fine, but how can he know for certain that the owner has died? It is a Parker pen. The person who found it may go to the World of Truth before the person who lost it. In fact, the Rambam says that once there is no possibility of finding the person who lost it, the obligation to return it no longer applies. The halachic authorities disagree about whether to accept that view. The Alter Rebbe himself did not accept the Rambam’s view either. He writes that in matters of Torah law one should be stringent and not follow the Rambam’s position. Therefore, the obligation to return the item remains even if the finder cannot discover who lost it. That is how the Alter Rebbe rules. So apparently, according to this, even if five years have passed since you found the pen and there is no chance at all that you will find the person who lost it, even

18:16 Speaker 2 In such a case, you have an obligation to return it. But there is another halacha in the laws of returning lost property that gives us a solution here. It says that if a person finds tefillin, the halacha is that he assesses their value—he estimates how much the tefillin are worth. There is a disagreement about how to make that assessment, but generally speaking, he assesses their value and can then take the tefillin for himself. When the person who lost them comes, he gives him the value of the tefillin. There are several reasons for this. One reason brought in halacha—the Rosh gives this reason—is that tefillin are readily available. The person is not particular about receiving those very tefillin: if you give him the money, he can go and buy new ones. Something comparable is available on the market. To be honest, we have to say that things have changed today. Nowadays, tefillin are not like that; everyone has his own tefillin, made by his own sofer, with his own standards of hiddur. It is not so simple. But take another object, say a Parker pen. The person would not mind if you gave him the cost of the pen and he went to the store to buy one. The same goes for a ball, and even for more expensive items. Say someone found a video camera. If you assess the camera’s value—ask someone exactly how much that camera costs, have some sort of assessment made of its precise value—and make a note that you owe the cost of a camera with such-and-such identifying marks, then if you see that you can no longer return it and have no one to return it to, you can use this solution. Again, if a person finds an object whose owners would not mind receiving payment for it, he really can assess its monetary value,

20:03 Speaker 2 and record it for himself. He can record it somewhere the information will always be kept—in an email, say, or somewhere else—so that the value of the lost item is preserved. That means recording exactly what he found, what it looked like, and how much it is worth. He can then use it. But there are objects a person would not part with for any amount of money in the world. A woman once called and asked about a necklace with a coin from the Rebbe that she had found. She had found it two years earlier, forgotten about it, and had not tried to return it. Time had passed. Presumably, the owners had already given up hope of finding it. But in a case like this, the person certainly would not say, “Fine, give me what it costs and I’ll go buy a new one.” There is nothing comparable on the market. You cannot take its monetary value and immediately buy another like it. It is a coin she received from the Rebbe, or that her husband received from the Rebbe—something that matters deeply to a person. In such a case, the obligation to return it certainly remains, and one must make every effort to return the lost item. But most of the cases people bring to us today involve things that can be found on the market. They are not things for which no comparable item can be found. Therefore, if the person who lost it cannot be found, and time passes without finding him, one can rely on the view that it is permissible to assess the object’s value. This is together with the opinion that, once the person who lost it cannot be found, there is no obligation to return it at all. Continuing with the laws of returning lost property, let’s discuss several halachos the Alter Rebbe brings in the laws of finding and returning lost property concerning the use of another person’s belongings. In general, as we have said, returning lost property means that a person must look after another person’s property. So if he sees that damage is being done

21:55 Speaker 2 to another person’s property, he must see to it that the property is protected. Obviously, he may not use another person’s property in a way that would damage it. The Alter Rebbe goes further. If a person finds something belonging to someone else—I’ll read the Alter Rebbe’s wording in the laws of found property and entrusted items. The Alter Rebbe writes: “Even if he is certain that when the owners learn that he took it, they will be happy and delighted because of their affection for him.” He is certain. He found, say, some object, and he says: “Of course the owners won’t mind. I know them; they’ll be glad for me to use it.” Nevertheless, he may not benefit from it without the owners’ knowledge. So the Alter Rebbe gives an example that was relevant in his time and is relevant today too: if a person enters someone else’s orchard, he may not pick oranges or apples, saying, “Of course my friend would agree.” That is not how it works. Even if it really is clear that your friend would agree, you still may not use his property. Why? Because right now your friend does not know that you are taking the orange. Say you went in and picked an orange from the tree. The owner does not know. Of course, if you asked him, he would agree. True—but right now he does not know, so you are benefiting from something taken without permission. In other words, you are taking someone else’s property without authorization. Yes, he would agree if you asked, but in practice, since you did not ask, you have used it—it is not merely considered as though you used it; you actually used it—without your friend’s permission. You have used another person’s property improperly. This comes up very often in places like a boys’ dormitory, where someone wants to use a roommate’s belongings. Of course his friend would agree; they share a room.

23:43 Speaker 2 What, if he took two wafers from the cupboard, would his friend refuse? Still, he may not take them. If he does not have permission, he may not take them, because that is an improper use of another person’s property. The exception is a situation where the owners know that everyone will use the item. For example, when someone leaves a book, a tallis, or tefillin in shul, he knows others may use them. There is a halacha that a person is pleased for others to perform a mitzvah with his property. So if someone enters shul and sees a tallis and tefillin, he may use the tallis, provided he folds it and returns it to its place. He may use the tefillin, provided they remain in the same place: he must not take them somewhere else, to another shul. He may use another person’s tallis and tefillin. Even a book belonging to someone else may be used. Now, in halacha the Alter Rebbe ruled that one may not use someone else’s book, but in practice times have changed somewhat. We have to remember that in the Alter Rebbe’s time, a book—any book—was valuable and rare. We know that not everyone had a Gemara at home, or a set; there might be one in the shul. Books were far, far more valuable than they are today. We see this in the Gemara as well. There were books made of parchment then, and they were certainly far more expensive than books today. Nowadays books are quite inexpensive, and people generally do not mind others using their books. On the contrary, a person is pleased for others to perform a mitzvah with his property. So if someone enters a shul or a beis midrash and sees a book belonging to someone else, he may use it. Why? Its owner anticipated that others would use it, so this is not

25:29 Speaker 2 considered using someone else’s property without permission. The Alter Rebbe similarly says that if a person enters an orchard and sees fallen fruit that people ordinarily take, the owners know that people take and eat it, so there is no problem. The Alter Rebbe makes an interesting point about something that can be used up: if many people use it, it will eventually be gone. In such a case, the Alter Rebbe says, it is a measure of piety not to use it. There is a passage in the Talmud Yerushalmi that says that if there is a wooden fence, its owner does not mind if someone breaks off a little splinter to clean his teeth. The owner even expects people to do that. But if everyone did it—if everyone in the neighborhood passed by and broke off splinters to pick their teeth—the fence would be gone. He would have no fence left. So yes, he does not mind if one person does it, but there is still a reason for him to object. The Alter Rebbe writes that with anything that can be used up—anything that would be depleted if many people used it—it is a measure of piety not to use it without the express permission of the owner. In practice, it is proper and right for everyone not to use any of another person’s belongings without express permission. Then there is no question of whether that person minds or does not mind, or whether he anticipated that others would use it. When you ask for express permission, you have truly done what is required and certainly avoid, G-d forbid, using another person’s property improperly.