Q&A: On Returning Lost Property to a Non-Jew
On Returning Lost Property to a Non-Jew
Question
1) The Torah exempted us from returning lost property to a non-Jew… The Meiri there explained that we are obligated to preserve basic rights toward non-Jews, but that this is a matter of piety and not something we were formally obligated in…
This connects to what later authorities (the Chazon Ish and others) explained, that the seven commandments which non-Jews are obligated in are things required by “uprightness and morality”… and there is the well-known rule of Isi ben Yehuda that whatever is forbidden to a non-Jew is also forbidden to a Jew… It would come out that we are obligated to act toward them with fairness, but no more than that…
And see Maimonides’ words regarding the exemption when a Jew’s ox gores a non-Jew’s ox, that under their law they do not obligate payment for this… We do not treat them more generously than they themselves treat us…
The Talmud in Sanhedrin says that it is forbidden to return lost property to a non-Jew… Maimonides explained that this is so as not to strengthen the wicked of the world (in which case it should be permitted in the case of an upright non-Jew, even if he is not included in the category of a resident alien), while Rashi explained that doing so shows that one is not returning it because of the commandment, and according to this, since there is an exemption from returning it, it follows that there is a prohibition (unless one does it because of desecration of God’s name or for the sake of sanctifying God’s name)…
My question is whether these rules can change as the accepted “uprightness and morality” among the nations changes. In a situation where everyone sees that the upright thing is to return lost property, would the law change? In many countries there are even laws about this (and then perhaps it could be grounded in the commandment that they establish legal systems, and if a non-Jew is obligated, we would not be less than they are)…
Even if we say there is no obligation, and this is “only” extra-Torah morality, would there at least no longer be an obligation prohibition (even according to Rashi)? The Torah did not obligate it, but there is a reason to return it: the morality accepted in our time… Or perhaps there would still be a flaw, because it shows that one acts on account of morality and not on account of a commandment…
There are rabbis who write that nowadays one should return it because of sanctifying God’s name… but that seems to me like sidestepping the issue. Sanctifying God’s name does not create an obligation, and seemingly it would only be permitted when one genuinely intends it for the sake of sanctifying God’s name…
2) What is the meaning of returning it “for the sake of sanctifying God’s name” (as brought in the stories in the Jerusalem Talmud)… If the Torah not only exempted this but forbade it—what sense is there in a non-Jew praising the Jewish people for something that, from their perspective, is actually forbidden?
Answer
Indeed, I agree that invoking sanctifying God’s name here is a way of getting around the issue. In my opinion there is a full obligation to return it nowadays, as the Meiri writes. You write that one does so on the basis of morality and not law, and I would comment on that in two ways: first, in my humble opinion, nowadays this is law and not morality, since there is an obligation to return lost property to a non-Jew exactly as to a Jew, and from the same verse. The Talmud in Bava Kamma 37 says explicitly that their property was permitted to Jews only because they did not keep their seven commandments. Second, even if this is morality—what is the problem with that?!
And as for what you asked—if this is a prohibition, where do we ever find prohibitions being permitted because of desecration or sanctification of God’s name? That itself proves the point. It is not a prohibition, but a response to the specific condition of the non-Jews of that time, and therefore even in their time there was room to return it for the sake of sanctifying God’s name. That itself is proof that this is not a prohibition.
See my article about non-Jews in our time here:
https://musaf-shabbat.com/2013/10/04/%D7%92%D7%95%D7%99-%D7%A9%D7%94%D7%94%D7%9C%D7%9B%D7%94-%D7%9C%D7%90-%D7%94%D7%9B%D7%99%D7%A8%D7%94-%D7%9E%D7%99%D7%9B%D7%90%D7%9C-%D7%90%D7%91%D7%A8%D7%94%D7%9D
and about attitudes toward non-Jews and changes in Jewish law here.
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Questioner:
According to the Meiri it is clear that one should return it…
I am asking according to the halakhic decisors who did not adopt his view, and one should not equate the laws regarding non-Jews nowadays with the laws of a resident alien…
The Talmud and the halakhic decisors explicitly say that beyond the Torah’s exemption there is also a prohibition involved here (seemingly rabbinic), and they even discuss its rationale…
According to Rashi, the reason is to show that we return things because of obligation and not for some other reason… In the case of someone who does it for the sake of sanctifying God’s name there is no prohibition at all, because he is acting for the sake of Heaven; the whole reason for the prohibition falls away…
But someone who does it in the name of morality—seemingly he is doing exactly what the Sages wanted to prevent, namely showing that he does this not for the sake of Heaven… My question is whether, when the basic moral norm changes, the Torah thereby recognizes its validity, so that it enters the sphere of what the Torah itself obligated toward non-Jews, and then there would no longer be any prohibition… Without such a mechanism, this seems to be exactly the definition of the prohibition…
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Rabbi:
First, even according to Rashi this is not necessary. It may be that the prohibition is to do it because of the customs of the non-Jew or in order to curry favor with them. But acting because of morality is similar to acting for the sake of sanctifying God’s name. Morality too is imposed on us by the Torah (“and you shall do what is right and good”).
In any event, even if you are right that there is a prohibition against doing it because of morality, I do not understand how you suggest that this would change. First, if morality today says to return it, then again you are doing it because of morality, and that is what was prohibited. Second, plainly even in their time this was a moral imperative, since according to your view it was then forbidden to return it because of morality.
But all this is very strange. Since when is it forbidden to do something because of morality just in order to show that one acts because of Jewish law? This is quite baffling.
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Questioner:
The question is whether the moral norm can change…
The Torah only forbade murder and theft from non-Jews because that was considered uprightness and morality, and just as non-Jews themselves are obligated only in uprightness and morality, so too that is our obligation toward them… The question is what the law is when non-Jews themselves adopt stricter norms of moral conduct—will the Torah recognize that, and will it become the “base line” that we too are obligated toward them in, or is it still part of the “addition” that we are obligated in only among ourselves (and according to Rashi perhaps even forbidden toward others, so as not to blur the distinction)?
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Rabbi:
I do not understand what the discussion is about. I already explained it. The moral norm certainly can change. But if, in your view, Rashi forbids doing things from a moral motive (which in my opinion makes no sense at all), then that would not change the Jewish law. There would be a moral obligation and a halakhic prohibition.
Discussion on Answer
Maybe. But these things are still very puzzling. Granted, if one acts because of morality and not because of the command, there is no commandment here. But one can act because of both.
I don’t understand the puzzlement. If a person gives gifts to the poor on Purim to a gentile, then it comes at the expense of the actual commandment, which is to give specifically to Jews, and that’s not okay. Like someone shortening his participation in a family celebration in order to take part in a gentile’s celebration.
Hello Rabbi, I’m currently writing an article about returning lost property to a non-Jew. You wrote that they derive from the same verse that one is obligated to return lost property both to a non-Jew and to a Jew—how? after all it says “his brother”
I explained the matter. That verse speaks about all human beings, “his brother” in the sense of those who are within Torah and commandments (those who act as your people do). The different attitude toward non-Jews arose only because they corrupted their ways and stopped observing them, as the Talmud wrote in Bava Kamma 37 and as Maimonides wrote in his commentary on the Mishnah there.
Hello Rabbi, thank you very much, but I’m not sure I understood. The verse on page 37 speaks about damages and not about lost property, and also the verse there is “the ox of his fellow,” whereas regarding lost property it says “your brother.”
And according to Maimonides there, would a non-Jew who keeps the seven Noahide commandments attain perfection of human character traits?
And what about Maimonides’ reason, that it is because one strengthens the hands of the wicked?
Can one derive from the verse itself—”You shall not see your brother’s ox or his sheep gone astray and ignore them; you shall surely return them to your brother”—that “your brother” does not mean literally your brother, but rather your brother who possesses perfected human character traits?
And more than that: could it follow from this that we would not need to return lost property to a secular Jew?
There is no reason at all to distinguish.
All commandments between one person and another apply to one who acts as your people do. That is not my innovation. But even there it is not correct to apply this to a secular person, because he is not similar to the offenders of earlier times.
And I didn’t understand: what’s the difference between saying that it’s forbidden to strengthen the wicked of the world, and therefore with a good non-Jew it’s permitted to return it—then the Torah should just say that to the wicked it’s forbidden to return it, regardless of whether he’s Jewish or non-Jewish.
And I also wanted to ask: what’s the reason that the Torah, regarding returning lost property, does not agree to let a non-Jew get it back because he is wicked, but stealing is forbidden from a non-Jew no matter whether he’s a good non-Jew or a bad one.
In principle, you’re right. There is no difference. The determination that non-Jews were different stemmed from the fact that, as a generalization, they really were different in the past. Today that generalization is not correct.
There may perhaps be room to distinguish between a Jew, where you need evidence of his wickedness in order not to return it to him, and a non-Jew, where you need evidence of his righteousness in order to return it to him. But I don’t think that’s correct. Today the presumption regarding all people in the world is favorable, and therefore you need evidence in order not to return it.
The difference is simple. Harming his property brings you money that is not yours. That is forbidden regardless of the character of the owner of the property. Not returning it means not increasing his wealth. Here there is a difference depending on who the person is. Note that the Sha’arei Yosher wrote that even according to the views that there is no Torah-level prohibition of theft from a non-Jew, his money still does not become yours.
This whole distinction is connected to what the Sha’arei Yosher says, that the foundation of the prohibition against taking money that is not yours is not the prohibition of theft, but the fact that the money is not yours. The fact that the money is not yours is true also with respect to a non-Jew and a wicked person. Your obligations toward him do not exist if he is wicked.
But with returning lost property too, it brings money that’s not mine—it’s his. So if that’s the case, why in the world wouldn’t one have to return it to a wicked non-Jew? after all you say there’s a prohibition against taking something that’s not yours, so if so, why do you say that with lost property it does depend on good or bad? It’s not yours.
But I also wanted to ask why in the past they were different as a generalization—because they weren’t moral and were wicked, and that’s exactly what Beit HaBechirah says. So for example, a non-Jew who keeps the seven commandments—what’s the idea that toward him one would be liable if my ox gored his, because he already behaves according to that kind of moral norm, so I’m liable to him also because of how he behaves? And seemingly, why in the world generalize this to everyone? You don’t know everyone, so why did the Torah say my ox is exempt when it gores his ox? Check exactly who you’re dealing with—why just generalize things? And according to your words, there should be exemption with my ox even for a wicked Jew, so as not to increase the wealth of the wicked. So why didn’t the Torah write such a thing explicitly to clarify its point? Why in the world is there exemption vis-à-vis a non-Jew when it comes to an ox?
And I also wanted to comment on what you said—that even from someone from whom it’s permitted to steal, the money still doesn’t become mine; that’s according to the views that theft from a gentile is permitted at the Torah level. I wanted to say there’s no difference between Torah-level and rabbinic-level.
According to the view that says it’s permitted, of course.
In returning lost property, you are not required to return it. But who said you are allowed to take it? That’s theft. Beyond that, there you were not the one who removed it from his possession.
It is impossible to examine every individual case on its own in every instance, and therefore we follow presumptions.
My claim was that even according to the one who says theft from a non-Jew is permitted by Torah law, it still does not become mine by Torah law.
Hello,
Granted, this is from years ago, but I just read it now. Hope it’s okay that I’m commenting.
The Rabbi wrote regarding the possibility that Rashi opposes doing things from a moral motive, that this is not logical.
In that connection, I wanted to point to what is said in the responsa of Rashi, siman 131, regarding “gifts to the poor for a non-Jew”—but not precisely what he writes at the beginning of his remarks about gifts to the poor; rather, regarding the example he gives from hospitality. It fits very well with what emerges from his words regarding lost property, and it seems that this really is his view: even moral commandments should be fulfilled because of the command, not because of morality.
Attaching the responsum:
Responsa of Rashi, siman 131
We have seen people who are accustomed to distribute gifts on Purim to male and female slaves who stand in Jewish homes. And the matter was as troublesome in Rabbi’s eyes as thorns, because the expression “gifts to the poor” was said about Jews, not non-Jews. And one who gives to non-Jews robs the poor and presents himself as though he is now fulfilling the commandment of gifts to the poor, which was stated regarding the poor of Israel. And because at first the poor who were ashamed began sending their little children by the hand of gentile wet nurses, to carry back the babies at the doorways of Jews, they became accustomed to give even to maidservants and wet nurses not for the needs of the babies. And Rabbi did not practice any leniency in this matter. And according to Rabbi’s words, one who throws a stone [in the margin: a pebble] into the sea is better than he, because he shows that today’s gifts were made even to non-Jews. And Rabbi applied to him the verse, “I gave her much silver and gold, and they used the gold for Baal”—the Omnipresent gave much gold to Israel so that they might bring it for the service of the Tabernacle, and when the episode of the calf came, “all the people took off the gold rings that were in their ears.” A parable: to a man who used to receive guests. Jewish guests came and he received them; non-Jewish guests came and he received them. He has ruined the first act, and this is what people say about him: he is a fool and this is just his way. So too, one who gives gifts to non-Jews on Purim has ruined the gifts he gave to the poor, because he does not appear as one acting for the sake of Heaven, but as one acting because that is simply his habit.