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 Shabbat Parashat Behaalotcha| 5767Ask The RabbiQuestion: I had an Israeli supermarket send me a delivery. After they left, I realized that they gave me two cases of expensive beer I had not bought. I have asked them several times to pick them up, but they haven’t yet. The cases are in the way and two bottles have been broken. When I last nudged them, the woman said that it hard for them to arrange, and if I don’t want to bring them back, I should keep them. As it is hard to shlep the cases by bus (with children), what should I do? I wouldn’t mind drinking the beer, but their value to me is far less than their price.
Answer: Your simple case raises many, difficult Choshen Mishpat questions that we cannot do justice to in this forum. We will touch on a few major points and give our suggestion of how to proceed.
When you discovered the beer, you became obligated in hashavat aveida (returning lost objects). (We assume it ideally would have been returned to another customer, although, depending on a few halachic doubts and questions of the sequence of events, it is possible that the store still owned the products.) As such, you became responsible to protect them from harm (Shulchan Aruch, CM 267:16) and return them. If the adults in your home broke the bottles or they were otherwise broken because of your lack of care (there is a machloket between the Shulchan Aruch and Rama, ibid. regarding the required level of care), you became obligated to pay for them.
The main question is whether a finder is obligated to actually return a lost object or whether it is sufficient to enable the owner to retrieve it. The gemara (Bava Metzia 30a), in illustrating the differences between the mitzva of hashavat aveida and those of helping one load or unload his animal, describes hashavat aveida as being done when the owner is absent. This seems to imply that if the owner is around to take the object, the finder is not responsible to take it home for him. Yet, the Derisha (CM 265) derives from Rishonim that the mitzva extends until it is returned to the owner’s possession. (See also Bava Metzia 31a and Shut Ben Yehuda I, 118, which strengthen the Derisha’s claim.) Thus, it seems that you did not complete hashavat aveida with the phone calls. The Derisha does point out that if the owner improperly wants to use the finder’s mitzva to have him do all the work, the finder can refuse, just as one can refuse to load another’s donkey alone as the owner watches. However, in this case, we can understand why a busy supermarket finds it difficult to send someone specially to pick up two cases of beer.
There are a couple of possibilities to exempt you from storing the cases until they are retrieved or returning them on your next visit to the store. We are assuming that the person who paid for the beer has or will be reimbursed. Thus, he drops out of the picture, and you deal with the store. It is unclear whether he can and did halachically return ownership to the store (see R. Akiva Eiger’s notes on CM 120:1 and Divrei Chayim II, YD 112). Therefore, one can make the claim that you are not formally obligated in hashavat aveida. The store’s interest in the beer may not be sufficient if they do not own it (see Pitchei Choshen, Aveida 1:(55)).
More directly, the woman on the phone said that you could keep the beer. There is a broad, important question to what extent a worker can relinquish his employer’s rights. In practice, it depends on the worker’s level of authority and the logic of making the concession. Your case involves a relatively modest amount of money, and they have reason to be considerate of a customer who was caused reasonable trouble because of their mistake. However, you may want to be wary of a half-hearted concession that might have been caused by what sounded like reluctance to perform hashavat aveida to its fullest.
We suggest getting the store’s agreement to a compromise. For example, find someone to buy it at a good price and give the store the money or drink it for around half the price.
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