Q&A: Distinguishing between the obligation to announce a lost item and the permission to keep it
Distinguishing between the obligation to announce a lost item and the permission to keep it
Question
Hello Rabbi,
Sometimes there are situations where there is a distinction between the obligation to announce a lost item and the permission to keep it. For example, in Bava Metzia 24b there is a Talmudic passage: "And if you wish, say instead: actually it is according to the Rabbis. Does it teach: they are his? It teaches only: he is not obligated to announce. Rather, let it remain, and if a Jew comes and gives a distinguishing mark for it, he can take it."
Rashi explains that the reason for this distinction is that in monetary matters (permission to keep it) we do not follow the majority, whereas in prohibitions (the obligation to announce) we do.
Another place where there is such a distinction is in Maimonides, Laws of Robbery and Lost Property, chapter 15, halakha 14: "If one found scattered produce in the area of the threshing floors—if it was about a kav within four cubits, or over more than four cubits—then it is his, because the owners do not trouble themselves to gather it. If it was scattered within less than four cubits—he should not touch it, lest the owners placed it there. If it was about half a kav in two cubits, or two kavs in eight cubits, or if the kav consisted of two or three kinds, such as sesame seeds, dates, and pomegranates—all these are doubtful cases; therefore he should not take them, and if he did take them, he is not obligated to announce."
At the end Maimonides wrote, "he is not obligated to announce," and did not write, "then it is his," which implies that he means that on the one hand there is no obligation to announce, but on the other hand there is no permission to keep it; rather, it should lie until Elijah comes. But this is difficult: according to Rashi above, it is understandable why there is no obligation to announce (because in prohibitions we follow the majority), but here in Maimonides it is an evenly balanced doubt, and with a Torah-level doubt we rule stringently. Do you have an idea?
Answer
It seems to me that this is a technical matter. What exactly would he announce? There is no specific distinguishing mark there, so he needs to leave them in place so that the owner can come and take them. But if he already took them, he has no way, and nothing, to announce, and therefore they should remain set aside. Still, it is not clear why they should remain set aside, because even if the owner comes, how would he prove that they are his? Therefore it seems simpler to me, according to Maimonides' approach, that if he took them he may already use them, and not merely leave them set aside (for this is a doubtful lost item, and he is the current possessor. Of course, this depends on the question of who is considered the possessor regarding a lost item, which we have already discussed).
However, the Or Zarua's view is that in such a case they should remain set aside, and one would need to examine his approach: what exactly he announces, and how he gives them to the person who lost them if that person comes to him.