Q&A: On Returning Lost Property
On Returning Lost Property
Question
Hello Rabbi,
Following up on your lesson about rights and obligations in Jewish law, where you said that laws appearing in Choshen Mishpat are usually obligations that arise from another person's right: the laws of returning lost property appear in Choshen Mishpat. My question is whether returning lost property is indeed an obligation that arises from a right. And if so, can society decide to waive that right and cancel the commandment of returning lost property? Also, should returning lost property be enforced?
I thought that maybe the commandment of returning lost property should be divided into two parts: "you shall not ignore it" and "you shall surely return them." Regarding "you shall not ignore it," it seems to me that this part is an obligation that does not arise from a right, whereas once you have already taken the lost item, the obligation to return it to its lawful owners is an obligation that does arise from a right ("you shall surely return them"). Since these two parts are connected to one another, both were included in Choshen Mishpat (even though "you shall not ignore it" is an obligation that does not arise from a right).
What do you think?
Answer
An excellent question, and the answer—or distinction—you suggested is excellent as well. Though there may be room to propose a different formulation that gives a more substantive explanation.
I should first note that "do not stand idly by your neighbor's blood" also appears in Choshen Mishpat (sec. 426). It seems to me that, just like that, returning lost property can also be formulated as an obligation rooted in the other person's right. The basis is a person's right over his property and his body. Therefore, it is obvious that you may not harm these, and that is a straightforward obligation arising from his right. But in the return of lost property, or the duty of rescue ("do not stand idly by your neighbor's blood"), the Torah expands a person's right over his property and determines that each of us has an obligation to ensure that our fellow's property and body remain in his possession. According to this definition, there is room to define this obligation too as arising from the other person's right.
And it still requires analysis whether, because of this, a person would have the right to sue me for not returning his property or for not saving him. As something of a proof for this approach, there is the Rashba, Responsa, vol. 4, sec. 17:
Responsum: What I wrote seems to me simple and obvious—so obvious, in fact, that I would say there was hardly any need to write it. For nothing stands in the way of saving a life except for those three prohibitions that are enumerated. Just consider: if someone were in the desert and dying of thirst and found a flask of water belonging to another person, should he die rather than drink, even on condition that he will pay? And how could such a person be called a thief? The owners are obligated to give it to him for free and keep him alive. So much so that Ben Petura taught in tractate Bava Metzia: if two people were walking on the road and one of them had a flask of water—if both drink, both will die, and if one drinks, he will reach civilization—it is better that both drink and die than that one see the death of the other. And Rabbi Akiva only disagreed there because it is written, "that your brother may live with you"—your life takes precedence over the life of your fellow. But where it is not a matter of your own life, he is obligated. If so, what theft is there here, that one should say of it: even though he pays for what he stole, he is still wicked? Rather, it is obvious that one may save oneself on condition of paying…
Although he disagrees with Rashi, he bases the permission to take another's property on that other person's being obligated to save the pursued victim. This implies that, in principle, the prohibition of theft was not set aside; rather, there is no prohibition of theft here in the first place. And this also seems to be the meaning of the Tur and Shulchan Arukh in the name of the Rosh and Tosafot, cited in Binyan Tzion sec. 167, who permitted only taking on condition of repayment.
He explains that the statement that a person may not save himself with another's property (Bava Kamma 60) means that the rescued person is not obligated to pay. Why not? Because the obligation to save him rests on the owner of the property, and therefore when I took his property from him in order to save myself, I did what he himself was obligated to do for me, and so I am exempt.
We also see from these words of the Rashba that a person's obligation to save me is my right. For if it were only his obligation toward me, such an obligation would not justify my infringing his rights. I cannot take his property just because he has an obligation to give it to me. A person can say that he does not want to save me and will answer for it in the heavenly court, but I cannot force him to save me. In the same way, a poor person cannot sue me to give him charity. If so, the Rashba, who permits me to take his property because of his obligation to give it to me, apparently understands that the obligation to save is grounded in my right over my body, as I explained above. But this still requires further analysis.
Discussion on Answer
Yes, I also seem to remember something similar in the Rashba on Bava Kamma regarding whether there is legal standing in matters of charity and the other doubts discussed there. But I don't think that's our issue here, at least not necessarily. Because there the question is whether the monetary aspect arose by way of the prohibition or vice versa. Here the question is whether there is any monetary aspect at all, or whether the whole thing is just prohibition.
Following up on this question, regarding enforcement in the commandment of returning lost property and the commandment of "do not stand idly by your neighbor's blood": should these commandments be enforced like all commandments that arise from another person's right? I seem to remember that at some point you spoke against a law based on "do not stand idly by your neighbor's blood," because it takes a halakhic obligation that is not enforced and turns it into an enforceable obligation.
Indeed, "do not stand idly by your neighbor's blood" is not another person's right but my obligation. However, in the Rashba cited above it seems otherwise.
Still, in the case of returning lost property there is seemingly room to discuss it, since we are dealing with another person's property, and a person certainly has a right over his property. On the other hand, I am not taking it away from him; I am only preventing its loss. So even if the other person has a right over the property, it is clear that he has no right over my labor. The obligation to return it and the prohibition against ignoring it are my obligations toward him, not his right. The right over the property itself (before he has despaired of recovering it) is his. In other words: failure to return lost property is not theft.
The Ran in Chullin brings a dispute among the medieval authorities regarding doubts in the commandments of leaving the corner of the field for the poor and charity—whether they are included under monetary law, where a doubt is treated leniently, or whether they go beyond monetary law and therefore a doubt is treated stringently…
In the Talmudic discussions of doubt regarding returning lost property (doubt about abandonment in the threshing-floor gathering place, and regarding the way the lost item was placed—perhaps that itself is an identifying mark, and in the case of doubt whether it was intentionally left there), the Vilna Gaon in his commentary connects the dispute among the medieval authorities whether to be stringent or lenient to that Ran in Chullin… It seems they disagreed on this very point.