Q&A: Despair over a lost item in a marketplace with a Jewish majority
Despair over a lost item in a marketplace with a Jewish majority
Question
Hello Rabbi,
The Talmud in Bava Metzia 24a says:
“Rabbi Shimon ben Elazar would likewise say: One who saves an item from a lion, from a bear, from a leopard, from a cheetah, from the surge of the sea, or from the flooding of a river; or one who finds an item on a main road or in a large public square, or anywhere that the multitudes are commonly found—these belong to him, because the owners despair of recovering them. They raised a question: When Rabbi Shimon ben Elazar said this, was it only in a place where the majority are non-Jews, but where the majority are Jews, no? Or perhaps he said it even where the majority are Jews?”
Tosafot explain: “Even where the majority are Jews as well—it is his, and the reason is that there are unscrupulous people who would take it.”
Seemingly this is puzzling, because although there are indeed unscrupulous people, most Jews are decent, and anything separated is presumed to have come from the majority. And beyond that: if the owner of the lost item despairs because he assumes that someone improper found it, why in a place that is not a public thoroughfare does he not make the same assumption? After all, there too there are unscrupulous people.
Answer
In a place that is not a public thoroughfare, perhaps no one will find the lost item at all. He himself can come back and take it. But you are right that if he returned and did not find it, it would seem that the same law should apply. However, there is no practical difference, because even if that happens, the despair here comes after the item was picked up, and despair after pickup is ineffective.
Your first question is a good one. Perhaps the reasoning is that when many people pass there, it is enough that one of them is not decent and will take it for himself, even if many decent people also pass there. True, a decent person is supposed to pick up a lost item when he sees it, but perhaps we are concerned that even some decent people will avoid getting involved and will not pick it up. But we are not concerned that decent people will take it for themselves. Still, this requires further study. And it is possible that the Rashba is concerned even for a minority view (like Rabbi Meir).
I thought that perhaps the rule that in monetary matters we do not follow the majority might apply here, but straightforwardly that does not seem relevant here. Still, there is room to analyze it further.