This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
In this week’s parshah the Torah discusses the halachos of hashavas aveidah (returning a lost object). The Gemara in Baba Metzia 27b derives from the pasuk in this week’s parshah, which says that one who finds a lost object should hold it until he is derosh acheichah, that the finder must investigate whether the man who claims that the lost object is his is being truthful. The Torah accepts simanim (signs) that one can provide as proof that the object is indeed his.
The Pnei Yehoshua asks these fundamental questions: Why is it necessary for it to be written in the Torah that one must investigate the person who claims the lost object, and why is there a need for the Torah to accept simanim as proof? The object’s claimant is a bari (one who is sure that the object is his), and the finder is a shema (one who is unsure about this). Generally, the rule is bari v’shema, bari adif – we follow the one who is sure of things regarding the situation.
The Pnei Yehoshua says that according to Tosafos in Baba Kama 46a (d”h d’afilu), we can suggest that the Torah says to follow the one who is sure over the one who is unsure only in a situation whereby the one who is sure is claiming something that the other should know about and therefore could contradict. For example, if one says “I am certain that I lent you money” and the other says that he is not sure about this we follow the one who is certain. This is because the one who says that he is certain is referring to something that his adversary should know about and is technically able to contradict. On the other hand, the one who is unsure should know whether he borrowed money. The fact that he does not know leads us to believe that he does not want to say the truth; therefore we follow the one who says that he is sure of the situation. However, in a case in which one finds a lost object, there is no way for him to know who is the owner. Therefore, he cannot contradict anyone who claims the object and we would not apply the general rule of bari v’shema, bari adif.
The Rambam, however, does not differentiate between whether the one who is unsure should have known and whether one can contradict the confident one. So the question arises: In the Rambam’s view, why is it necessary for the Torah to command us regarding simanim?
The Chasam Sofer says that this question is also applicable according to the abovementioned Tosafos. He explains that Tosafos only requires that the bari be contradictable and that the shema should have known – when one person is a muchzik (an established owner). But when there is no muchzik, such as in a case of a lost object, Tosafos would agree that the halacha should follow the bari – even if he is not contradictable and the shema had no way of knowing. So why did the Torah need to teach about simanim?
Here’s the Chasam Sofer’s answer: The reason why a person does not give up hope on finding his lost object is because there is an obligation on the one who finds it to try to determine as to who is the rightful owner. If not for this obligation, he would lose hope. The only way one can come to determine who is the rightful owner is either through witnesses or with simanim – which proves that the object is his. However, if anyone claiming the object is to be believed, there would not have been an obligation to announce that one found a lost object, for he could keep it. If that were the case the owner of the lost object would give up hope on ever finding his lost object, relinquishing his ownership. Hence the Torah had to set forth a process whereby it would have to be proven that an object belongs to the one claiming it.
It would seem from the Chasam Sofer that the halacha of bari v’shema, bari adif is not a determination of the truth but rather a halacha of whom to follow. Other Acharonim explain that the mechanics of bari v’shema, bari adif is that when one says he is certain while the other is unsure, the one who is certain clarifies the doubt – permitting us to now know what happened. Perhaps the Chasam Sofer agrees with this line of thought, but not so in a case where the bari is not able to be contradicted and the shema could not have known.
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