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Shabbat Parashat Behaalotcha 5774

Ask the Rabbi: Returning a Lost Item That the Owner Knows About

Rav Daniel Mann

Question: Neighbors on an upper floor have several little kids who regularly throw toys and even heavy objects onto our ground floor garden. For years we have picked up and returned the items and dealt with a mess, as they have refused to put up screens or come promptly to pick them up. We believe that if we leave the toys, they will change their behavior. Is that permitted?


Answer: We will explore a few possible ways to exempt you from returning the items.

Let us assume that your neighbors are improperly taking advantage of you. Does that justify your stopping to retrieve their toys to get them to change their behavior? At first glance, this seems like nekama (revenge) – refusing to do for your counterpart a favor that you would normally do because of grievances against them (see Rambam, Deiot 7:7). On the other hand, several sources indicate that nekama applies when one is punishing another for past behavior, whereas it is permitted to take unpleasant steps to try to dissuade him from his improper behavior or for another positive, not spiteful, reason (see Rama, Choshen Mishpat 388:7; Mitzvot HaLevavot p. 32; Torat Ha’adam La’adam, from p. 172). Precedents for this rule include telling lashon hara to protect one’s legitimate rights (see Chafetz Chaim, Lashon Hara 10 where he also discusses the conditions) and steps that David Hamelech took against those who tried to harm him. In this realm, there is likely a distinction depending on the level of need and the steps contemplated and between refusing to do a favor and acting in a way which would normally violate a Torah law, e.g., hashavot aveida (see Torat Ha’adam La’adam ibid.). Therefore, it is important to determine if the mitzva of hashavat aveida is obligatory in this case.

There is a question as to what hashavat aveida requires of a person: return the object to the owner, or enable him to retrieve it (see discussion in Mishpat Ha’aveida, p. 21). The stronger position in our view, which is reportedly endorsed by Rav Moshe Feinstein and the Chazon Ish, is that the finder does not have to deliver the object (Pitchei Choshen, Aveida 7:(1); Torat Ha’aveida, p. 58). You imply that making them come pick up the toys would suffice, so there is a second reason to allow you to take that step.

Even if one wants to be stringent on the above issues, we should consider whether the pattern of behavior falls under the category of aveida mida’at (“intentional loss”). There are different levels of aveida mida’at. One is when the owner demonstrates he does not care if the object gets lost. In that case, there is even an opinion (Rama, CM 261:1; the Shulchan Aruch ad loc. disagrees) that one is allowed to take the object for himself. Your case does not fall into this category, as your neighbor wants the toys back and is not overly concerned about their being thrown from her home because she relies on you. However, the Shulchan Aruch (ibid.) assumes the owner is not mafkir the object and yet understands that by not taking precautions to protect its disappearance, he loses his right to require the finder to bother to return it. This seems to apply in your case, although she could argue that she tries to limit the children’s throwing of toys and that you cannot blame for lack of success and are required to help your counterpart, as hashavat aveida requires (even a hundred times – Bava Metzia 31a). Even so, it appears that in this case, there is no aveida because your neighbor always knows where to find her objects, and she has the responsibility to come get it. (This is better than the case where one informed the owner where his lost object is because there the mitzva took effect previously.) Thus, there is another reason to exempt you.

In summation, there are ample reasons to allow you to tell your neighbor that she will have to come collect the toys. That being said, we urge you (who know the dynamics) to consider whether the situation is acute enough to justify the steps and whether your idea is the wisest way to deal with the issue.

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