Shabbat Parashat Bamidbar | 5769

Hemdat Hadaf Hayomi: The Mitzvah of Returning a Lost Object

Baba Metziah 22-28

This week in the Daf Hayomi, the Gemara deals with the laws of the Mitzvah to return a lost object to its owner. The general rule is that, if the owner has not yet lost hope of finding the object or having it returned to him, then the one who finds the object must return it to him. However, if the owner has lost hope (=ye'ush), then the one who finds the object may keep it for himself. What if a person keeps an object that he found before ye'ush? The Gemara (26b) states that he violates three commandments:

"Rava said: If he saw a coin that fell, if he took it before ye'ush for the purpose of stealing it, he transgresses all of them: the prohibition of 'do not steal', the commandment of 'return it' and the prohibition of 'do not ignore'. And even if he returns it after ye'ush, it is [considered to be] a present that he gave, as the prohibition has already been transgressed."

The Gemara states that a person who took a lost object before ye'ush, in order to keep it for himself, transgresses the prohibition of stealing and violates the two commandments of returning a lost item to its owner. The Gemara adds that if ye'ush subsequently took place, and the finder later returns the item, it is considered as if he gave the owner a present and this does not mitigate the transgressions. This statement is puzzling, as a person who finds a lost object before ye'ush is still obligated to return it even after ye'ush (as can be derived from the continuation of the Gemara).

The Tosafot (ibid d"h Matana) claim that, indeed, even if one returns the object after ye'ush, he fulfills the commandments of returning a stolen object and a lost object. The Gemara only meant that one transgresses the prohibition of ignoring the lost object, since he did not initially intend on returning it.

The Ramban (Milchamot Hashem 14b in the pages of the Rif) claims that the reason a person who finds a lost object before ye'ush must return it even after ye'ush is that, once he takes the object and intends on returning it to the owner, he is safeguarding the object for the owner, and it is considered to be in the owner's possession. Therefore, even if ye'ush takes place, it does revoke the ownership of the original owner, since ye'ush does not revoke ownership of an object in the owner's possession. However, in the case discussed in the Gemara, since the finder did not have intention of returning the lost object, he is not safeguarding the object for the owner, and thus the object is not considered to be in the owner's possession. Thefore, when ye'ush occurs, the ownership is revoked and the finder gains possession of the object.  When the finder does return the object, it is considered to simply be a present and not a fulfillment of the Mitzvah to return a lost object.

The Shulchan Aruch (Choshen Mishpat 259, 1) rules in accordance with the Tosafot, whereas the Shach (ibid 1) proves that the Rif and Rambam agree with the Ramban, and claims that this is the simple reading of the Gemara. The Netivot (ibid 1) claims that the main ramification of the opinion of the Ramban is that, if a person thinks that he lost an object, but it is really in his home, even if ye'ush takes place, his ownership is not revoked. However, the Netivot proves that, if the object is on his property but in a way that it is not safeguarded, such as in his field by the side of the road, then, even according to the Ramban, if ye'ush occurs the ownership is revoked.  

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