Using Lost Property Whose Owners Have Not Come Forward

A. Nowadays, when most types of lost items can readily be purchased in all stores and retail chains, and the owners have no particular personal attachment to the very item they lost, while, on the other hand, if they are kept as they are in one’s home, their value will decline greatly due to changing times and production lines that are renewed constantly, one may sell them or use them after announcing them and the owners did not come forward—even if they bear a clear identifying mark—provided that he first appraises their value according to their current condition (second-hand), and records their value in a notebook or on the first page of a Shas, or the like.

B. If one found items of a type that does not depreciate, such as gold and jewelry made of pure silver or gold, he may not sell them. Nevertheless, he may appraise them and use them, since their depreciation is slight.

C. If one found items that do not depreciate and have no second-hand market value, since such items are sold only new, while using them raises a concern of damage, loss, or destruction—for example, books, balls, and the like—he should not use them at all and should not sell them, even if many such items are available in stores. However, if he appraises them and accepts upon himself to reimburse them as new, he may use them.

A). In the Gemara in Bava Metzia (29b), Shmuel said: One who finds tefillin in the marketplace appraises their value and puts them on immediately. Ravina challenged this from the ruling: With books, he reads from them once every thirty days, etc. Abaye said: Tefillin are commonly found at the house of Bar Chavu; books are not commonly found. Rashi explained: Since they are readily available for sale, the owner can return and purchase them with the money. The Nimukei Yosef (folio 16) likewise wrote that this differs from other items, whose value cannot be appraised immediately because they are not readily available. The Rosh likewise wrote in his rulings (ch. 2, no. 18) that regarding other lost objects, a person prefers his own item; but concerning tefillin, which are available at all times from the craftsman, people are not particular. The Meiri likewise wrote this (there).

According to their words, nowadays, when virtually most items can be found exactly like them in abundant supply in retail stores and have no personal value to the person who lost them, one may indeed appraise them and sell them or use them himself, since the owners have no preference for this particular item. Therefore, this is unlike what the Shulchan Aruch states (siman 267, סעיף 16): if he announced it and the owners did not come, he must leave it until Elijah comes. The Aruch HaShulchan likewise wrote this (siman 267, סעיף 14).

Although Rambam (chapter 13 of the laws of Theft, halachah 14) wrote that the reason one appraises tefillin and puts them on is that they are commonly possessed by everyone and are made solely for their mitzvah purpose, the Sema (subsection 30) already explained his view: regarding all items, even when they are readily available for purchase, a person cherishes an item to which he is accustomed; unlike tefillin, where a person is not generally particular whether he fulfills the obligation with these or with others known to be kosher. According to this, nowadays, when it is reasonable that an identical item to the lost one exists in the factory and in stores, this rationale—that a person cherishes what he is accustomed to—seemingly does not apply. What difference is there between this item and another made exactly like it? Only in their times, when every item was produced individually and no two were alike, was there room to be particular about one’s own item. Therefore, it may be said that Rambam also agrees that one may appraise it monetarily and use it. This is also how the Pilpula Charifta (there, no. 4) explained Rambam’s view. However, the Shach (subsection 16) did not explain Rambam this way; rather, he held that the permission to sell tefillin is because of the benefit of a mitzvah: people are pleased that a mitzvah is performed with their property. According to this, using items that are not for a mitzvah should be prohibited. Yet one may still properly say that even according to the Shach’s explanation of Rambam, in a case where the owners have absolutely no practical difference or concern between this item and another, he too agrees that it is permitted. The need for the mitzvah rationale is where the owners have an interest specifically in their own item, and nevertheless, for a mitzvah purpose it is permitted because they are pleased by the mitzvah. Especially since Maran, the Shulchan Aruch itself (siman 267, סעיף 21), did not mention Rambam’s reason at all—that they are made for their mitzvah purpose—but wrote: One who finds tefillin appraises their value and puts them on immediately, because they are readily available for purchase at any time. Since the Rosh’s opinion is clear, and Rambam can likewise be explained this way, this is the practical ruling: one may appraise and use any lost item of which identical items are available on the market, since the owners are not particular. This is also the halachic ruling adopted in Igrot Moshe, vol. 2 (Choshen Mishpat, siman 42, no. 4), and it is likewise cited in Hashavat Aveidah KeHalachah (p. 71) in the name of Maran Rabbi Yosef Shalom Elyashiv, of blessed memory. I likewise saw this written in Mishpat HaAveidah—Gross (siman 267, Moznei Tzedek, subsection 76), and so too in Cheshav HaEphod, vol. 2 (siman 11), even according to Rambam.

B). On the other hand, one could argue that nowadays a person certainly objects to the sale or use of his property, because if it is sold used, he will receive much less than its price when new. Consequently, he will have to spend more money to buy a new item, and everyone is particular about that. Only in earlier times were there many items for which there was no difference between new and used, or where it was common to buy used items as if new; this is not so today. I likewise saw this point raised in Olat Ish—Sharabani (laws of Lost Property, p. 515, no. 17), who wrote that according to this, the matter has collapsed entirely, and it is impossible to sell or use any items nowadays.

In truth, however, this argument may be challenged, for even nowadays many items are sold second-hand, and there are numerous sales websites that sell second-hand items at reduced appraisals. Thus, the owner can purchase an item like his with that money. Yet this argument alone is insufficient: first, not all items are sold second-hand; moreover, they are not considered constantly available, since sometimes identical items are sold and sometimes only similar ones are sold. In such a case, it may be said that the owner prefers specifically his own item, as explained above.

However, it appears that the main point is that owners are pleased for their items to be sold or appraised at their present value. Nowadays, it is common that as time passes, the value of items declines greatly because of new models, changing “fashion,” and advancing technology. After a while, many items will have no value whatsoever, and at times the owner will no longer want his item at all. Examples include a stroller, a suit, and a cellphone: if they are kept and not sold, after a lengthy period they lose their appeal, and the owners will almost no longer have any use for them. Rambam already wrote (chapter 13 of the laws of Theft, halachah 11): “One must inspect and examine lost property so that it does not deteriorate and become lost on its own, as it is stated: ‘and you shall return it to him’—see how you can return it to him.” Thus, all contemporary items may be treated like fruit that has begun to rot, regarding which Rambam (chapter 13 of the laws of Theft, halachah 16) and the Tur (siman 267) state that one sells them immediately. Although a person prefers his own measure, as stated in the Gemara (Bava Metzia 38a), and for this very reason one may not touch a deposit even if it will spoil, nevertheless, regarding lost property this was permitted, because in this way one properly fulfills: “see how you can return it to him.” Even though it is reasonable that selling them now causes the owners a loss, since fruit that has begun to rot is worth less than good fruit, and with the sale proceeds the owners cannot buy good fruit, nevertheless we assess a person’s intent as preferring that his property be sold (or used) at its current value rather than be lost entirely, since one does not know when the owners will be found. The same applies nowadays to most items, as explained. Rabbi Shneur Zalman likewise wrote (Choshen Mishpat, laws of Lost Property and Deposits, halachah 24): “Just as they said concerning lost property, so they said concerning a deposit whose owners traveled overseas: the depositary is obligated to attend to the preservation of the deposit just as he attends to lost property. However, he may not sell it because of a future loss, such as chametz before Passover: if he waits to sell it until the fifth hour on the eve of Passover, he will sell it very cheaply; whereas in the case of lost property, in such a situation he sells it earlier in order to sell it at a higher price. But concerning a deposit, he waits until the fifth hour, perhaps its owner will come and take it; and so too in all similar cases.” Thus, one is permitted to sell lost property even before it has depreciated, in order to prevent loss. What difference is there between objects and food?

C). However, regarding items that do not depreciate, such as gold, jewelry, and the like, seemingly there is no permission to sell them, because this causes the owners a loss. Even if similar items are available for purchase in the market, new gold costs more than used gold, so he causes the owners a loss. Moreover, the Rosh (there) and the Tur indicate that there is no permission to sell ordinary items that are not subject to deterioration or loss; permission was granted only for things that would suffer loss if they were not sold. Even tefillin are subject to loss through mildew and the like, as the Rosh wrote.

However, the Chatam Sofer wrote in his responsa (Choshen Mishpat, end of siman 122), regarding gold jewelry, that one may wear and use it after appraising it and recording its value in the community ledger (presumably, this is not meant literally), since it is more readily available for purchase than tefillin among Torah scholars, and, on the other hand, its depreciation is slight. If the owners come, he will pay them for the depreciation. However, all this concerns permission to use it; regarding selling it, it appears that one should not be lenient in such a case. Especially regarding items that may be damaged or lost, while their value will not decline, there is no permission even to use them. Although many similar items are available, he causes the owners a loss, because they are always sold second-hand at a lower price, and when the owners come, they will not be able to buy similar ones with the money he has. In my humble opinion, however, if he accepts upon himself to pay the owners the value of new items, and similar items are readily available for purchase, then he is permitted to use even such items. See Orchot Rabbeinu, vol. 1 (p. 279), and Teshuvot VeHanhagot, vol. 1 (siman 418).

D). Regarding the appraisal itself, it is clear that the Rema and the Shulchan Aruch disagree (siman 267, סעיף 25). According to the Shulchan Aruch, an appraisal by a court is required, whereas according to the Rema, he may appraise them himself. See the Sema (subsection 37). It is possible that if he appraises them generously rather than precisely, rounding upward, even the Shulchan Aruch would agree that it is permitted in such a case. Nevertheless, it is proper to ask merchants who are knowledgeable about the appraisal value of each item he found, according to its particular nature. For an item whose price is known and which is sold for the same price everywhere, he may appraise it himself. Igrot Moshe, vol. 2 (Choshen Mishpat, siman 45, no. 4) likewise wrote this.

E). It still requires consideration whether one must set aside money corresponding to the value of the lost item, and likewise, if he sold it to others, whether he must set aside the money, or whether he may use the proceeds of the lost property. Concerning the Gemara’s statement, “One who finds tefillin appraises their value and puts them on,” the Rosh and Rambam disagree. The Rosh inclined to say that he must set aside their value, since he did not exert himself over them; this is comparable to finding money, regarding which the Gemara (29b) states that one may not use it because he did not exert himself over it. Here as well, he should set aside money corresponding to the lost item. Rambam wrote that he puts on the tefillin, which implies that he need not set aside the money. The Beit Yosef likewise explained their disagreement this way. Yet according to Rambam, this still requires explanation: how is this different from finding money, regarding which we say that he may not use it, and so rules the Shulchan Aruch (siman 267, סעיף 25)? Perhaps whenever he benefits the owners and they do not incur a loss, he is permitted to use both the item and the money. Likewise, concerning tefillin, since on the one hand they are readily available and on the other hand he prevents them from becoming mildewed, as the Rosh and Tur wrote, he is therefore permitted to use the money. Nevertheless, even according to the Rosh, later authorities wrote that whenever he has money available such that, if the owners come, he will give it to them immediately, he may use the item and need not actually set aside money corresponding to it. Hashavat Aveidah KeHalachah (p. 73) likewise cites Rabbi Nissim Karelitz, of blessed memory, that today the usual way to safeguard money is in a bank rather than in the ground, and the nature of a bank deposit is that when one comes and requests the money, it is given immediately. Therefore, even one who finds money may use it, because as soon as the owners come, he will have the amount of the lost property available to give them.