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 Shabbat Parashat Bereshit | 5764P’ninat MishpatReturning Lost Articles (Hashavat Aveida) – Part I - Religious or Civil Law?
We have a tendency to want to neatly categorize laws of the Torah according to their realm and character. There are religious ceremonies, family law, civil law, etc. The Tur, and after him, the Shulchan Aruch, arranged the Torah’s halachot into four groups. While some sets of laws are easily categorized, others are somewhat difficult to label. One such set of laws is that of returning lost objects (hashavat aveida).
On one hand, hashavat aveida affects the relationship between people. On the other hand, it seems to be about going out of one’s way to be charitable towards another beyond his natural civil rights. One should note that the laws of charity and respect for one’s parents are found in Yoreh Deah, the section of Shulchan Aruch dealing with ritual law. Well, according to test of where the Tur placed it, hashavat aveida is considered civil law, as it is included in Choshen Mishpat. (It is also, thus, candidate for inclusion in our P’ninat Mishpat section in Hemdat Yamim, which is precisely why we are now introducing it.)
The Rambam goes a step further by combining it into one set of laws together with the laws of open theft (gezeila). (Surreptitious theft (geneiva)hasits own section.) The Rambam is apparently influenced by a pasuk in Vayikra (5: 23): “… and he shall return the stolen item that he robbed … and the lost item that he found.” In general, then, there seems to be an element to hashavat aveida of avoiding or correcting the perpetuation of an improper situation. That situation is holding on to an object which is not his own but belongs to someone else, whether it was stolen or found.
The main question in the laws of hashavat aveida thus becomes whether at the time that one finds an object, it has an owner or not (Bava Metzia 21b). If it has an owner, then one cannot take the object as his own. Additionally, the finder has an obligation to go out of his way, if necessary, to return the object to its rightful owner. This is similar to the obligation of one who steals to return the stolen object and not just remove it from his own possession. Yet, a fascinating and surprising gemara (Bava Metzia 26b) says that the pasuk of “you shall certainly return them [the lost items] to your brother” (Devarim 22:1) does not require one to pick up and return an item that he chances upon. Rather, only the negative commandment of “you shall not ignore [the situation of the lost item]” (ibid. :3) applies. Once one heeds that pasuk and picks up the item, then one is bound by the aforementioned, positive commandment. If one decides to pick up the lost item and keep it for himself, then he has violated the commandment not to steal.
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