Hymie was visiting Israel and enjoying an afternoon with his grandchildren in the park. After pushing them on the swings and watching them slither down the slides, he went to sit down on a bench in the corner of the park.
He noticed a cap sitting there next to him. “Is this your cap?” he asked a person standing nearby.
“No,” the person replied. “It was here when I came.”
After resting for a few minutes, Hymie asked some other people in the park if they knew whose the cap was, but nobody knew. He turned to his wife and asked, “Should I take the cap home and try to return it?”
“How will you return it?” she asked.
“I’ll put up a sign in the nearby shul with my phone number,” said Hymie. “That’s a way of publicizing.”
“Who says that the person who lost the cap davens in that shul?” she said. “Maybe it was a visitor who just came to the park.”
“I could also put up a sign on the bulletin board in the park,” suggested Hymie.
“That’s a good idea,” said his wife. “But the signs on the bulletin board tend to get covered or torn down quickly. Anyway, the person who lost the cap may not even bother to look at the bulletin board. He might simply come back to check the bench, and assume that someone walked off with his cap. Maybe it’s best to leave it here and hope that owner will come back in the next day or two.”
“But what about the mitzvah of hashavas aveidah?” protested Hymie. “I’m not allowed to ignore a lost item, as it says, ‘Lo tuchal lehis’alem – do not ignore.'”
“I know that, but we’ve already amassed a whole collection of lost caps, kippas, and shirts,” she said. “We’ve put up signs, but almost no one has ever called to claim the item, other than a couple of valuable items. I almost feel that by taking the cap you’re doing the owner a disservice. It’s not likely that someone else will take it; if you leave it, maybe he’ll come back and find it.”
“I know what you mean,” replied Hymie, “but I don’t think the laws of hashavas aveidah allow that. I wouldn’t do such a thing without consulting Rabbi Dayan.”
Hymie called Rabbi Dayan. “I’m standing in a ginah (public park) and see a cap sitting on the bench,” he said. “Should I take it home and try to return it, or just leave it?”
“The purpose of hashavas aveidah is to ensure that the item returns to its owner,” answered Rabbi Dayan. “Therefore, if the item appears to have been placed there intentionally you should not touch it, but leave it where it is. The owner will likely come back to look for it there.” (C.M. 260:9)
“What if I’m not sure whether the item was placed there intentionally?” asked Hymie.
“If you’re unsure, the Rama [260:10] differentiates among three cases,” explained Rabbi Dayan. “It also depends on whether the item has a siman (identifying feature) or not.
“First case, where the item was left in a secure place, you should not touch it. However, it you already took it home: If there is a siman – you must publicize the item. If there is no siman – you should hold it until Eliyahu HaNavi comes and clarifies whose it is.
“Conversely, if the place is not at all secure, the item should not be left there. If there is a siman – you should take it home and publicize what you found. If there is no siman – you may keep the item.
“The third case is where the place is partially secure, such as your case. If there is a siman – the Shulchan Aruch, following the Rambam, rules you should not touch the item, but the Rama and almost all other authorities rule you should take it home and publicize. If there is no siman – you should leave the item there.” (Shach 260:24)
“So if the cap has a siman I should take it home and publicize, but if there is no siman I should l leave it,” summarized Hymie.
“So it would seem, but nowadays people rarely search signs for non-valuable items; it is unlikely you will succeed in returning the item,” said Rabbi Dayan. “Therefore, Rav Y.S. Elyashiv, zt”l, ruled that if the item is not valuable and might have be placed there – it is preferable to leave it, even if there is a siman; perhaps the owner will return. Thus, you should leave the cap where it is. However, if the item is a valuable hat that the owner would search for and had a siman – you should take it home and publicize.” (Hashavas Aveidah K’halacha 1:9)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.
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