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April 26, 2015 / 7 Iyar, 5775
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Take It Or Leave It?


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The winter was over, and the days began to get longer and warmer. The sun shone brightly in clear skies, grass and flowers were blooming, and the trees were producing layers of green foliage.

Yeshiva Toras Mishpat decided to take advantage of the beautiful spring weather for an afternoon of exercise in the sprawling local park grounds, which also contained sports fields and courts. After shiur, the students packed into busses and drove over to the park.

When the students arrived, they unpacked food for a picnic lunch. Afterward, they broke into groups and spent the remainder of the day playing ball, competing in races, and running around in a wild game of ultimate Frisbee.

As the sun turned a glowing red, it was time to head home. The students gathered their belongings and boarded the buses back to the yeshiva. A few teachers stayed behind under Rabbi Dayan’s supervision to ensure that everything was in order and nothing was left behind.

They came upon a T-shirt that had fallen in a puddle and had gotten all wet and muddy, making it quite repulsive. The teachers looked at each other. “Do we have to take this back to try to return it?” they asked.

A dispute broke out. “Of course we have to,” said one. “It’s the mitzvah of hashavas aveidah, returning lost items.”

“But it’s disgusting,” said another. “I wouldn’t expect you to pick it up if I lost it.”

“I heard there’s no mitzvah until you actually pick it up,” said a third. “So we can just leave it alone.”

“Who says it’s from our group, anyway,” said a fourth. “Maybe it belongs to somebody else?”

The teachers turned to Rabbi Dayan: “Should we take it or leave it?” they asked.

“This depends on a few factors,” replied Rabbi Dayan. “It also requires an honest judgment call.”

“Could you please explain?” the teachers asked.

“There are three mitzvos and prohibitions related to hashavas aveidah,” Rabbi Dayan explained. “The primary mitzvah is the positive command: ‘Hashev teshivem – return them.’ Second, the Torah adds a prohibition to ignore a lost item, ‘Lo tuchal lehis’alem – You may not ignore.’ [Devarim 22:1-3] Third, if a person unlawfully takes a lost item for himself, he violates the prohibition, ‘Lo tigzol – Do not steal.’ [Vayikra 19:13] In addition, once a person picks up a lost item, he becomes responsible for it as a shomer, guardian.” (B.M. 26b; C.M. 259:1; SM”A and Taz)

“Then what’s the question?” said the first teacher. “It’s explicit that we must take it!”

“The Sages derived from the word ‘vehis’alamta‘ that there are situations in which a person can ignore a lost item,” answered Rabbi Dayan. “One is zaken v’aina lefi kevodo – an honored person, whom this item would belittle. The principle is to be concerned about other people’s property as your own. Would the finder be willing to retrieve the item had it been his own? Furthermore, if you are allowed to keep the lost item, you have no obligation to return it, even if you don’t want to keep it.”

“So when must a person take a lost item to return it, and when can he leave it?” asked the teachers.

“The Shulchan Aruch, citing the Tur, writes that a person has an obligation to return to a lost item only if eight conditions are met [C.M. 259:2). If any one is lacking, there is no obligation to return the item, although in many situations it is still meritorious to do so. The item has to be:

“1. In a place where there is an obligation to return it (e.g., where the majority of people are Jewish).

“2. In a place where it seems lost (not in a secure place).

“3. Left a manner that indicates it is lost (not placed there intentionally).

“4. It was not willfully abandoned.

“5. It is worth the minimal amount of a perutah.

“6. There is some siman, identifying feature.

“7. The person who found it would tend to it had it been his own.

“8. It belongs to someone to whom we are required to return.

“Thus, in this situation, you are not obligated to take the item in order to return it,” concluded Rabbi Dayan, “because it is beneath your dignity to pick up such a filthy T-shirt and because the majority of people in the park are not Jewish.”

“I suppose it’s still meritorious to return it?” asked a teacher.

“There is a dispute whether it is meritorious for a Torah scholar to return an item beneath his dignity,” said Rabbi Dayan. (See C.M. 263:3) “There are also some situations in which it is not recommended, or even prohibited, to take the item, which we will discuss, IY”H, next time!”

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 subscribe@businesshalacha.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 ask@businesshalacha.com.


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