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 Shabbat Parashat Lech Lecha| 5764P’ninat MishpatThe Laws of Returning Lost Articles - III – Yeiush
We have seen that in order for one who finds a metzia (lost item) to keep it, something must happen to remove the ownership of the original owner. Usually, that thing is the owner’s yeiush, giving up hope that he will receive the object back.
We have seen that if the finder picks up a lost object before yeiush, he is required to return it even if there is yeiush later on. The major question that the gemara discusses is whether it is necessary that the owner have yeiush in practice or if it is sufficient that the situation which brings on yeiush exists at the critical moment. This question, known as yeiush shelo mida’at, applies when we can assume or need to fear that the owner did not find out that the object was lost until after it was found by someone else. This case is one of the six machlokot between Abayei and Rava in which we accept Abayei’s opinion, which is that such absentee yeiush is not halachically valid. Therefore, it is important to determine if the item is the type that one finds out quickly that he lost (Bava Metzia 21b) and if we can tell if the object was lost for a long time prior to being found (ibid. 26a).
There are a few factors which determine when there is yeiush. The first is the presence or absence of simanim, identifying signs on or related to the object, which the owner can use in proving that he is the one who lost it. If the object has no simanim, the finder can assume that the owner will have yeiush.
Another factor is where the object is found. If one finds an object in a place which is inhabited primarily by non-Jews who do not follow our strict laws of returning objects whenever possible, then we can assume that the owner will have yeiush when he realizes he lost it in such a place (Shulchan Aruch, Choshen Mishpat 259:3).
Another case where the location causes that the object is free for the finder to keep is what the gemara calls, avuda mimenu v’eina m’tzuya etzel kul adam (it becomes inaccessible to all people) (Bava Metzia 22b). Examples include objects that were lost at sea and small animals that were in the clutches of a lion. The Rambam (G’zeila Va’aveida 11:10) understands that this is a case where we have a right to assume that there is yeiush even if there are simanim, as he doesn’t expect any person to be able to get to the object anyway, so how will the simanim help. Tosafot (ad loc.) understands that there is a special gezeirat hakatuv (Divine decree found in the Torah) which obviates the normal laws found in similar cases. Some explain that the situation itself of an object being totally out of the accessibility of mankind has the power to uproot ownership.
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