Sources and Reasons:
The Source for the Law of a Deliberately Abandoned Item
The Mishnah in Bava Metzia 25b states: If one finds a utensil in a garbage heap, if it is covered, he must not touch it; if it is uncovered, he takes it and announces it. The Gemara there states as follows:
But this is contradicted by the following: If one finds a utensil hidden in a garbage heap, he takes it and announces it, for it is the manner of a garbage heap to be cleared away… Rav Pappa said… This is not difficult: here, it refers to a garbage heap that is designated to be cleared away; there, to one that is not designated to be cleared away. Is a garbage heap designated to be cleared away a case of a deliberately abandoned item? Rather, it refers to a garbage heap that is not designated to be cleared away, but the owner subsequently decided to clear it away.
It is apparent from the Gemara that if a person placed utensils in a garbage heap designated for removal, the finder need not fulfill the mitzvah of returning a lost item, since it is considered a “deliberately abandoned item.” Therefore, only where he placed them in a garbage heap not designated for removal, and subsequently decided to clear it away, must the finder return the lost item.
Similarly, we find in the Gemara in Bava Metzia 31a. There, Rava said that a cow grazing among vineyards is not considered lost, unless it strayed among the vineyards and was damaged. The Gemara discusses this as follows:
And with regard to one grazing among vineyards, although it does not cause damage, let him derive the obligation due to loss of land? It is in the case of a gentile’s vineyard. And let him derive it due to danger to the animal itself, lest they kill it? It is in a place where they first warn and then kill. But perhaps they warned its owner? If they warned him and he was not careful with it, it is certainly a deliberately abandoned item.
It is apparent from the Gemara that if a person left his cow to graze among vineyards even after having been warned, it is a deliberately abandoned item, and there is no mitzvah of returning a lost item in that case.
In a Case of a Deliberately Abandoned Item—May the Finder Keep It?
However, the Rishonim disagree whether, in a case of a deliberately abandoned item, the finder is permitted to keep the lost item for himself, or whether he is forbidden to keep it and is merely not obligated to return it. The Rambam maintains that even in the case of a deliberately abandoned item, the finder is forbidden to keep it for himself, and so wrote the Ramah. However, the Tur and the Hagahot Ashri maintain that in the case of a deliberately abandoned item, the finder may even keep the lost item for himself.
This is the wording of the Rambam, Hilchot Gezelah Va’Aveidah, chapter 11, halachah 11:
One who loses his property knowingly is not attended to. How so? If he left his cow in an enclosure that has no door and did not tie it, and went away; or he threw his purse into the public domain and went away; and similarly in any such case—he has knowingly lost his property. Although one who sees this is forbidden to take it for himself, he is not obligated to return it, as it is stated: “which is lost”—excluding one who knowingly loses it.
However, the Tur disagrees and writes in Choshen Mishpat, siman 261, as follows:
And if it is grazing among vineyards… if the vineyard belongs to a gentile… and if they warned him and he did not take care to remove it, it is a deliberately abandoned item, and one is not obligated to attend to it. The Rambam wrote: Although one who sees it may not take it for himself, he is nevertheless not obligated to attend to it; and so wrote the Ramah. This does not appear correct, for a deliberately abandoned item is ownerless.
As a practical halachic ruling, the Shulchan Aruch rules in accordance with the Rambam, as the Beit Yosef wrote that the words of the Tur are untenable, for merely because one does not take care to safeguard his property, it cannot be said that he has rendered it ownerless. However, the Rema cites the Tur, who maintains that in the case of a deliberately abandoned item, the finder may keep the lost item.
This is the wording of the Shulchan Aruch and Rema, Choshen Mishpat, siman 261, סעיף 4:
One who knowingly loses his property is not attended to. How so? If he left his cow in an enclosure that has no door, and did not tie it, and went away; or he threw his purse into the public domain and went away—he has knowingly lost his property. Although one who sees this is forbidden to take it for himself, he is not obligated to return it, as it is stated: “which is lost”—excluding one who knowingly loses it. Gloss: Some say that a deliberately abandoned item is ownerless, and whoever comes first acquires it.
Similarly, the Shulchan Aruch and Rema also disagree in siman 260, סעיף 11, regarding one who finds a utensil in a garbage heap, as follows:
If one finds a covered utensil in a garbage heap, he must not touch it. Gloss: When does this apply? To a garbage heap that is not designated for removal at all. But if it was originally designated for removal, one who hides an item in it has deliberately abandoned it, and it belongs to the finder.
The Sema there, subparagraph 54, explains that the Shulchan Aruch rules like the Rambam and the Rema rules like the Tur, and their disagreement concerning a utensil placed in a garbage heap designated for removal follows their respective approaches in the dispute regarding a cow grazing among vineyards after its owner was warned. The Sema writes that accordingly, it is somewhat difficult why the Rema wrote his gloss as an addition to the words of the Shulchan Aruch, rather than presenting it as a dispute by writing “some say,” as he did in siman 261, סעיף 4.
However, see the Shach, subparagraph 33, who wished to suggest that perhaps the Rambam does not disagree with the Tur regarding a garbage heap designated for removal, and concedes that the finder may keep it; he maintains that this differs from the law of a cow grazing among vineyards. This is why the Rema did not use language indicating a dispute. He concludes that nevertheless, as a matter of practical halachah, the primary ruling follows the Tur and the Rema. However, see the Taz to siman 260, סעיף 4, who rules in accordance with the Rambam and the Shulchan Aruch.
Explaining the Disagreement Between the Rambam and the Tur Regarding a Deliberately Abandoned Item
In explaining the disagreement between the Rambam and the Tur, the Sema in siman 261, subparagraph 10, explains that the Rambam maintains that the observer is forbidden to take it for himself because the exclusion regarding a deliberately abandoned item applies only to the mitzvah of returning a lost item: the finder is not obligated to return it or announce it. However, the finder remains forbidden to take it for himself under the prohibition of theft. The Tur, however, maintains that a deliberately abandoned item is considered as though its owner rendered it ownerless; therefore, whoever takes it first acquires it.
Nevertheless, this still requires clarification. Granted that the Rambam maintains that a deliberately abandoned item is excluded only from the mitzvah of returning a lost item, why does he not hold that one can infer from the owner’s actions that he has rendered his possessions ownerless, as the Tur maintains?
I saw in the sefer Minchat Asher that the gaon Rabbi Asher Weiss shlit”a explains that the Rambam and the Tur disagree regarding the presumed intent of a person who is negligent with his property: whether his intention is to render it ownerless, or whether he simply does not care for his property but intends to return and seek it.
However, in my humble opinion, it is difficult to establish the disagreement between the Rambam and the Tur solely as a disagreement over assessing when a person intends to render his property ownerless and when he merely does not wish to exert himself in guarding it. This is not the implication of the words of the Shulchan Aruch and Rema, nor is it the implication of the poskim who labored to formulate and explain their disagreement.
The Vilna Gaon’s Explanation of the Disagreement Between the Rambam and the Tur
Indeed, I saw in the Biur HaGra, Choshen Mishpat, siman 261, subparagraph 9, that he offers a wonderful explanation: the root of the disagreement between the Rambam and the Tur lies in their disagreement concerning the law of hefker—whether a person can render property ownerless privately, or whether this must be done specifically in the presence of one person or three people.
The Rambam maintains that, in order to render property ownerless, it must be done in the presence of one person by Torah law, and in the presence of three people by rabbinic law. However, the Tur writes in the name of the Rosh that a person may render property ownerless even privately. Practically, the Shulchan Aruch and Rema disagree on this below in siman 273, סעיף 7. The Shulchan Aruch maintains that it is not hefker unless one declares it ownerless in the presence of one person, and by rabbinic law in the presence of three people; whereas the Rema writes that some maintain that it is hefker even if declared privately.
Accordingly, the Rambam and the Tur, and the Shulchan Aruch and Rema, follow their respective approaches. The Rambam and Shulchan Aruch, who maintain that private hefker is ineffective, hold that a deliberately abandoned item is not hefker, since it is done privately. But the Tur and Rema, who maintain that private hefker is effective, hold that a deliberately abandoned item is also hefker, and the finder may keep it.
However, the Shach in siman 261, subparagraph 3, writes that this cannot be said, since it is evident from several places that when it is clear that the owner intends to render it ownerless, there is no need for this to take place specifically in the presence of people. He writes that Tosafot explicitly state this in Shabbat 18b and in Elu Metziot 30a: wherever it is clear to us that the owner renders it ownerless in his heart, it is effective.
Indeed, in my humble opinion, it is clear that even the Rambam would agree that if a person puts old chairs outside beside the garbage, we would not say that it is forbidden to take them so long as he did not declare them ownerless before three people. Rather, certainly, when it is clear to us that he intends to render them ownerless, it is effective as though he declared them ownerless in the presence of people. The disagreement between the Rambam and the Tur concerns only a case where this is not clear to us. Thus, the disagreement between the Rambam and the Tur concerning a deliberately abandoned item still requires explanation: why is it not hefker?
The Explanation of Rabbi Nosson Taussig Regarding the Disagreement Between the Rambam and the Tur
A further explanation of the disagreement between the Rambam and the Tur was written by Rabbi Nosson Taussig in Bava Metzia, siman 152, preceded by a fundamental inquiry: What would be the law if we found a lost item, were the Torah not to command us to return lost items? Would the finder be permitted to take it, or would taking it be forbidden as theft? Rabbi Taussig explains that this is the point of disagreement between the Rambam and the Tur. The Rambam maintains that were it not for the mitzvah of returning a lost item, we would not be commanded to deal with it and return it, but it would still be forbidden to take it due to theft. The Tur, however, maintains that were it not for the mitzvah of returning a lost item, it would be permitted to take it, since it has left the owner’s possession and is ownerless.
Based on this inquiry, the disagreement between the Rambam and the Tur concerning a “deliberately abandoned item” is explained most clearly. Indeed, in a case of a deliberately abandoned item, there is no obligation of the mitzvah of returning a lost item. However, where there is no mitzvah of returning a lost item, the Rishonim disagree regarding the law and follow their respective approaches. According to the Rambam, there is no mitzvah of returning a lost item, but it is forbidden to keep it for oneself. According to the Tur, when there is no mitzvah of returning a lost item, the finder may keep it for himself. This is remarkable.
A Difficulty with the Rambam’s View—From the Sugya of Machnishta Devei Dari
However, the Shach raises a difficulty with the Rambam’s approach regarding a deliberately abandoned item from the sugya of “machnishta devei dari” in the chapter Elu Metziot, 21b. There, the Gemara sought to prove that unconscious despair constitutes despair, and states as follows:
Come and hear: Scattered fruits [belong to the finder]. But the owner did not know that they fell from him! Rav Ukva bar Chama said: Here we are dealing with machnishta devei dari, for it is a deliberately abandoned item.
It is apparent from the Gemara that if the lost item was deliberately left, such as in machnishta devei dari, a place where produce from threshing floors is gathered, where the owners of the produce place their merchandise, then if they do not collect it, it is a deliberately abandoned item and the finder may take it. As Rashi explains there, since the produce did not fall from him but rather he deliberately left it there, it is hefker.
In this sugya, the Rambam cannot say that it is a deliberately abandoned item but that one is forbidden to take it. For the Mishnah explicitly states that scattered fruits belong to the finder. It requires examination what the Rambam would answer to this.
The Explanation of Netivot HaMishpat Regarding the Disagreement Between the Rambam and the Tur
A wonderful explanation of the Rambam’s view, and a resolution of the difficulty raised against it from the sugya of machnishta devei dari, was written in Netivot HaMishpat, siman 261, subparagraph 1, as follows:
In my humble opinion, it appears that a deliberately abandoned item retains the status of a lost item, and despair is required. Therefore, in a garbage heap designated for removal, it is complete hefker, for there is complete despair: anyone who finds it certainly will not announce it, since a deliberately abandoned item need not be announced, as the Sema wrote in subparagraph 10. Tosafot in Bava Metzia 24a, s.v. Ki ka’amar Rabbi Shimon, wrote that whenever the finder need not announce it, the owner despairs. Thus, here as well, since in a case of a deliberately abandoned item the finder need not announce it, the owner certainly despairs, and it is properly complete hefker. Likewise, in machnishta devei dari [there, 21b], it is the Sages’ assessment that the owners render them ownerless, like dung.
In contrast, where one throws his purse into the public domain and it has an identifying mark, the Rambam maintains that there is no despair. Although not everyone knows the law that one must not touch it, and the owner thinks that someone will certainly take it, as the Rosh writes at the beginning of the chapter Elu Metziot regarding bundles, nevertheless he does not despair. Since it is an item with an identifying mark, anyone who did not see that it was deliberately abandoned will announce it; and one who saw it and knows to whom it belongs—even though he need not announce a deliberately abandoned item—will certainly return it once he knows to whom it belongs, for why should he not return it, since he is forbidden to use it? Furthermore, the owner does not despair, for he thinks that perhaps someone else who did not see it will find it and announce it.
It is apparent from the words of Netivot HaMishpat that even according to the Rambam, who maintains that in the case of a deliberately abandoned item the finder may not keep it and is merely exempt from returning it, if the owner has despaired of it, the finder may keep it. See there further, where he writes that even if it came into the finder’s possession before the owner’s despair, one cannot say that it came into his possession through prohibition, since he is not commanded to return it.
According to Netivot HaMishpat, the disagreement between the Rambam and the Tur concerns only a deliberately abandoned item of which the owner has not yet despaired, such as a cow grazing among vineyards or a cow whose owner left it in an open enclosure, where the owner hopes that nothing will happen to his property and does not despair of it. However, in machnishta devei dari, where the owner has despaired of it, and likewise in a garbage heap designated for removal, even the Rambam concedes that the finder may keep it.
An Item Lost by Mistake Is Not a Deliberately Abandoned Item
Despite the above, in a case of an item lost by mistake, notwithstanding the words of Netivot HaMishpat that according to the Rambam, one who removes his possessions to a garbage heap designated for removal—since there is despair—even according to the Rambam the finder may keep them, it is clear that if a person threw furniture into the garbage without knowing that one of its drawers contained an envelope of money, or if he placed old books in the garbage without knowing that the books contained important and valuable inscriptions, this is not considered a deliberately abandoned item. Both according to the Rambam and according to the Tur, the finder may not keep them.
Since it is clear that the owner was unaware of the envelope forgotten in the furniture or of the valuable inscriptions in the books, this is not a deliberately abandoned item, for there is no awareness on the part of the owner. It is comparable to mistaken waiver and mistaken hefker, which according to the Rosh are neither waiver nor hefker. Therefore, even according to the Tur, one cannot say that there is hefker here, and the finder has no right to keep it for himself. Rather, he must fulfill the mitzvah of returning a lost item.
I likewise saw that the great gaon Rabbi Shlomo Zephrani shlit”a ruled in his sefer Shamru Mishpat, volume 2, siman 40, in a similar case in which a person asked his servant to take old writings to the genizah. The servant went and showed the writings to a Torah scholar knowledgeable in the field, who discovered that they were rare manuscripts worth a great deal of money. He wrote that this is not a deliberately abandoned item and that the servant must return them to their owner.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
