Lesson # 219 (Intro, part two) • Lost & Found

In the last lesson there was set forth seven criteria regarding found objects. It was stated there that if all of the seven criteria are present, the finder must pick up the object so as to restore it to the owner. If any of these seven criteria are not present, the obligations under the Torah commandments to stop to pick up the object and to restore it to its owner are not applicable.
We shall now examine the first two of these criteria more fully. (The remaining five shall be discussed IYH in the next lesson.)

(1) The owner has not abandoned hope
The obligation to pick up the object and to restore it to the owner is present if the owner has not (or is presumed not to have) abandoned hope of recovering the object from a person who will find it.

The owner abandons hope if he states, "Woe is me that I've suffered a loss" or other words to that effect from which Beth Din can ascertain that the owner abandoned hope. This holds true even if the object has an identification mark. If the finder picks it up after the abandonment, the object belongs to the finder. Caveat: The abandonment of hope must precede the finder picking up the object. If the finder picks up the object and then the owner realizes that he lost the object and immediately abandons hope, the item does not belong to the finder. If there is some doubt as to which came first, the finding or the abandoning of hope, the object must be restored to the owner.

There are times when the owner does not immediately realize that he lost the object. He cannot abandon hope until after he realizes that he lost the object. Under some circumstances there is usually no gap in time between the loss and the realization of the loss. For example, the object is valuable and the owner feels his pocket constantly to see if the object is still in his pocket. In such a situation the owner will almost immediately realize that he lost the object. Or it is heavy and the owner will almost immediately feel the loss because he realizes that the weight he was carrying is no longer there.
Absent a definite declaration from the owner, there is a presumption that if the object is identifiable, the owner did not abandon hope.

Conversely if the owner loses an object that is not identifiable, it is presumed that the owner abandons hope as soon as he realizes that he lost the object.

An example of the owner not abandoning hope is where the finder sees two men walking together and an object falls from one of them and the finder does not know from whom it fell. The object was picked up by the finder.

Even if the object does not contain an identification mark, the owner has not abandoned hope. The owner has not abandoned hope since he thinks that the other person whom he was with took the object and will sooner or later admit that he took the object. If the finder picked up the item and the owner later did abandon hope, the item still does not belong to the finder.

Related to the topic of abandoned objects are objects that are carried away by a raging river and other such acts of nature. If the finder, Shimon, rescues an object from a raging river or wild animals, the object belongs to Shimon. The reason is that if the actual intent of the owner is different from the standard of whata reasonable person does under the circumstances, that is, he abandons hope of ever recovering the object; the law presumes that this standard applies. However if downstream there is an obstacle that will prevent the object from being washed out to sea, then there may be hope that the owner can reach such place and recover his lost object, and it will not be presumed that the owner abandoned hope of recovery of the object.

Thus either the owner will proceed downstream and recover his object, or else the people down- stream, if they are Jewish, can be depended upon to salvage his object from the river and return it to the owner. It belongs to the owner even if he makes no effort to retrieve the object from the river as it is washing away his object. If the object does not have an identifying mark, it will belong to the owner if (1) he immediately runs after the object to attempt to salvage the object before it is washed away; or (2) if the owner is not there when the river washes away his object, and, had he been there, he could have prevented the object from being washed away by the river. If either (1) or (2) is present then the object is presumed not to be abandoned and the finder must restore the object to the owner.

If the river is not a raging river but nevertheless carries objects away from the landowners along its banks, then the objects carried away by the river belong to the owner if (a) the owner immediately runs after the object and is not successful in rescuing his object; or (b) if the owner was not present when the river washed away his object, but when he became aware of it, he immediately made whatever effort could have been made. If by the time the owner heard of the river carrying off his object it was too late for him to do anything, then the object belongs to him, since the river is not a ravaging river and the people down- stream will return the object to the owner if it has an identifying mark.

Assume that a river has a dam used by fishermen to catch fish. An object is found behind the dam. The dam is set up by Jewish fishermen and is usually repaired by them. If an object is found there it has to be treated as an object that has not been abandoned. The result is otherwise when the dam is maintained by gentiles. The Jewish owner of the lost object is presumed to assume that the object will be found by a gentile and not be restored to him and thus he abandons hope of having the object restored. Therefore the object belongs to the finder.

(2) The object must be identifiable
The finder is required to pick up an object that he spies on the ground only if it is identifiable. The identification may be a mark on the object, or the place where the object is found. In the latter case it is identifiable if it appears that the object was deliberately left there with the intention of the owner to return there to retrieve his object. Also, if the object is found in a place where the general public usually does not pass through, the object must be picked up to be restored to the owner, even if the object does not have its own identification mark.

However, if the public place is used by many people, such as a loading platform on a pier, the place in and of itself is not an identification mark.
The identification mark need not be on the object itself, but may be the way the object is packaged, or how it is tied together, or the amount of the object, or its weight, or a certain unique mark or thing about the object, or anything that makes the object identifiable by the owner when he comes to claim the object from the finder. (The remaining five criteria will be discussed IYH in the next lesson.)

The subject matter of this lesson is more fully discussed in Volume VIII Chapter 259 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores.
Questions to quint@inter.net.il

[The Parshat Va-eira Homepage]
[The TORAH tidbits Homepage] [How to use TORAH tidbits]
[About The OU/NCSY Israel Center] [About TORAH tidbits]
[www.ou.org]