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Question: What can a shul or mikvah do if it finds itself overloaded with aveidos that people left there?

Answer: If they already have been koneh it, they are stuck with it. However, if whoever has jurisdiction over the premises had in mind not to acquire it, and it is only picked up after the person who left it there is meya’esh, they can keep it. However, that is often not the case. Often, whoever left it there completely forgot about their item, without ever being meya’esh.

Going forward, some Poskim suggest that the problem can be rectified by putting up a sign that anything left on the shul property becomes hefker after a reasonable amount of time. This would only work if the sign is hung in a prominent place so that people know it is there and presumably agree to abide by it and allow their items to become hefker.

Furthermore, the sign would only work for things that are normally left behind. If someone’s passport fell out of his pocket and got lost, it would not become hefker, because the sign would not absolve the shul from returning things that the owners wouldn’t expect to leave behind. For such things, they would have to be returned like a regular aveidah.

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Rav Baruch Fried

Question: I was in a supermarket and found $10 in front of the customer service counter. I picked it up, saw that there was no siman, and was about to take it for myself. The storeowner saw me pick it up and said that it belongs to him since it was found on his property. Do I have to give it to him?

Answer: If the money was behind the counter – in the place where customers do not normally go – it would belong to the storeowner because his chatzer would acquire it for him.

However, if the money was found in front of the counter – in a place where there are customers – the Mishnah says that the finder can keep it if it can be assumed that the owner was meya’esh before he picked it up. The Rishonim explain that the store’s chatzer is not koneh because it is not protected, and only a protected property is koneh items without the owner’s knowledge. Other Rishonim explain that the chatzer is not koneh because the owner was not yet meya’esh when the item first fell there, as he obviously wasn’t yet aware that he dropped it. By the time the finder picked it up, however, the owner was already meya’esh, so he is allowed to keep it.

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Question: In my development, there are many scooters, coats, toys, etc., which were obviously dropped by children. Do I have to pick up and return all of these lost items?

Answer: The truth is that anything knowingly entrusted to a child has the status of an aveidah m’daas. The Mishnah in Bava Basra (87b) discusses a case where a parent sends a child with a jug to purchase oil from a storekeeper. If the jug falls and breaks on the way home, the Mishna says that the storekeeper is liable to pay for it. The gemara there explains that if the storekeeper would have simply filled the jug and sent the child on his way, he would not be liable. The reason the Mishnah says he is chayav is that it is specifically referring to a case where the storekeeper first used the jug for his own purposes, thereby becoming a shoel shelo m’daas. Since a shoel shelo m’daas is considered a gazlan, the storekeeper now has an obligation to return the jug to its owner. If it breaks before being returned, he is liable.

Both the Ketzos Hachoshen and Nesivos Hamishpat conclude from this sugya that one is not obligated to protect something that a parent entrusts to a child. Although one cannot take the item for himself, he also is not responsible to guard it.

If the parents entrust an item to the child, no one else is obligated to protect it any better than they did. If the parents know that a child may lose or break an object they give to him, and they decide to give it to him anyway, they have accepted that something may happen to the object and no one else is responsible to do more than they did by returning the object to them.

Therefore, one would not be obligated to return a coat, toy, or scooter that was given to a child. Of course, if the object is in a place where someone may trip over it he should move it to the side, but there is no mitzvah of hashavas aveidah.

Question: What if someone already picked it up?

Answer: He can still put it back down. It is clear from the Rishonim there that when parents entrust an object to a child, they accept that no one is obligated to return it to them, even if they already picked it up.

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Rav Baruch Fried

Question: A man has a private jar of coffee, which he keeps in shul. One day, I see him taking a cup of coffee and leaving his jar on the counter. I know that other people will assume it is there for the public and will take some. Do I have an obligation of hashavas aveidah to put away the coffee for him? Am I permitted to take some for myself?

Answer: If the coffee was left out by mistake, there certainly is a mitzvah of hashavas aveidah to put it away or notify the owner.

If it was left there on purpose, it has the status of an aveidah m’daas.

The Rambam says that if someone throws his wallet into a public street, you are not allowed to take it for yourself but you also have no obligation to return it because you don’t have to be more prudent with someone else’s money than the owner himself is. The Tur argues and says that, in such a case, the wallet becomes hefker and you are permitted to take it for yourself.

The Shach rules in accordance with the Tur, and the Rema also seems to pasken like the Tur. Accordingly, if someone leaves his coffee in a place where he knows others might help themselves to it, Ashkenazim may rely on the Rema and Tur, and they may take some. Of course, if someone wants to be machmir like the Rambam, this would be commendable.

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Rav Baruch Fried

Question: A fellow is walking in a totally non-Jewish neighborhood and finds a pocketbook. It contains a lot of cash but no credit cards or ID. It does, however, contain a “mitzvah note” signed by “Mommy”. Is he allowed to keep it?

Answer: Generally, if one finds an aveidah in an area that is primarily frequented by Akum, he can assume that the owner was meya’esh and gave up hope of ever getting it back; therefore, he may keep it even if it has a siman.

In this case, however, it is probable that the pocketbook was lost by a married Jewish woman. This leads to the question of whether a married woman, whose possessions technically belong to her husband and not herself, has the ability to relinquish ownership by being meya’esh.

There is a well-known story in which a Jewish woman lost a large sum of money in a public marketplace. The Jew who found it claimed that he was allowed to keep it because the majority of people in the marketplace were non-Jews. However, Rav Yitzchok Elchonon Spector ruled that he must return it because a married woman cannot be meyayesh on something that belongs to her husband.

There actually is a machlokes Acharonim about this, and the Nachalas Tzvi rules that a married woman can be meya’esh. If so, we might ask why Rav Yitzchok Elchonon was so firm in his ruling that the money had to be given back.

I believe the answer is that even after yiush, there is a halacha that an aveidah should be returned lifnim mishuras hadin. There is a machlokes whether someone can be forced to go lifnim mishuras hadin, but most Poskim agree that one can be verbally pressured to do so. My theory is that in this case, when it was clear that the woman had lost this money, Rav Yitzchok Elchonon was pressuring the man to return it, as he at least had an obligation to give it back lifnim mishuras hadin.

Similarly, in the case of the pocketbook, if it can be clearly established who the owner was, one should return it lifnim mishuras hadin.

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Questions? Comments? We love feedback! Email us at info@baishavaad.org

Rav Baruch Fried

Question: Someone lost an item, which was worth a significant amount of money. His neighbor later revealed to him that he had seen the item on the street but didn’t bother to pick it up. This individual wants to take his neighbor to a din Torah for causing him a loss by not performing the mitzvah of hashavas aveidah. Does he have a case?

Answer: The Shulchan Aruch (OC 443) says that if someone is a shomer on his friend’s chometz, he should sell it before Pesach so that his friend doesn’t suffer a loss. The Mishnah Berurah says that the obligation to sell the chometz is based on the mitzvah of hashavas aveidah. He says that if the shomer doesn’t sell it, he is not liable because there is no source in halacha that someone is obligated to pay for not performing this mitzvah. Accordingly, a beis din would not take this case and make someone liable for not fulfilling the mitzvah of hashavas aveidah.

We do, however, find in the Ramban’s Dinah D’Garmi that he gives hashavas aveidah as an example of something that is not a din mamon, so it does not fall under the category of garmi. This seems to indicate that although it is not garmi, it is a grama, which bears a chiyuv b’yedei shomayim. Accordingly, in such a case it would seem that the neighbor should offer his friend something to make amends for having caused him the loss, even though he is not liable in dinei odom.

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Rav Baruch Fried

Question: Someone is walking in the street on Shabbos and finds a large sum of money with a siman. What should he do?

Answer: The Mishnah Berurah clearly says that if one finds money on Shabbos with no siman, he is not allowed to take it for himself. Although there are certain leniencies that apply in cases of a large monetary loss, those leniencies do not apply when one wants to take ownership of money that he didn’t previously have.

If the money has a siman, the question would be whether the obligation of Hashavas Aveidah takes precedence over Shabbos. Assuming there is an eruv, the specific prohibition under discussion is that of muktzah, which is a d’rabanan. Still, the consensus of the Poskim is that we do not override a d’rabanan to allow someone to fulfill a mitzvas asei d’ohraysa like Hashavas Aveidah, therefore, one cannot pick up the money. Furthermore, the Poskim write that he has no obligation to sit and watch it until Shabbos is over.

What if the lost item is a “kli shemilachto l’issur” (an item that is muktzah because its primary use is for a purpose that is forbidden on Shabbos)?

The general rule about kli shemilachto l’issur is that one may not move it for its own sake, but one may move it “l’tzorech gufo”, to make use of it for a permitted purpose. One could argue that doing a mitzvah with the item is considered “for its use”. Regarding hashavas aveidah however, the Chasam Sofer says that if one wouldn’t be allowed to move the item if it belonged to him, he wouldn’t be obligated nor allowed to move it in order to return it to someone else.

Rav Shlomo Zalman Auerbach explains further that if Hashavas Aveidah would be permitted for a kli shemilachto l’issur, a bizarre situation would be created wherein a person would not be permitted to move his own muktzah object to protect it from getting ruined, but he would be allowed to tell his friend to move it to save him from a loss, as this would be a case of Hashavas Aveidah. Accordingly, we have to say that if it is forbidden for the owner of an object to move it, the finder of the object also cannot move it. He can leave it where it is, and he has no obligation to watch over it until after Shabbos.