Q&A: Exchanging Lost Property
Exchanging Lost Property
Question
I left my blue Pilot pen in the study hall. The next day I found a Pilot pen in the same place that is externally identical, but its refill had been replaced with black ink.
I assume that someone sat and learned in that same place, used his pen, and in the end swapped his pen, with the black refill, for my pen with the blue refill, since externally they are identical.
Can I assume there is mutual waiver here (a few days have already passed), or am I obligated to return a lost item?
Thank you very much!
Answer
In my opinion there is no problem at all. Beyond the waiver that probably existed here, a person may take the law into his own hands. You are allowed to take his property in order to recover your own property.
Discussion on Answer
Not correct. See Arukh HaShulchan 136:2. In a case where there has been a mutual taking and there is no way to find the other person and switch back (and there is also no need, because it is clear that both agree to the exchange), it is certainly permitted.
By the way, the Talmudic passage there is not dealing with “a person may take the law into his own hands,” but with permission to use another person’s utensils. But where I have no other way to recover my property, the consideration of “a person may take the law into his own hands” should also be included.
Granted, but at the outset one should try to fulfill the commandment of returning a lost item. The questioner should first be told to publicize it and see whether it is possible to return it.
If the exchange was done in good faith, then “a person may take the law into his own hands” does not apply here; it is only a matter of returning a lost item, as we see in the Talmudic passage about someone whose utensils were exchanged in the bathhouse, where it is therefore forbidden to use them.