The Physician’s Dilemma
‘It Came Into His Hand While Forbidden’
(Bava Metzia 21b)
Our daf evaluates when a lost object is considered halachically lost and abandoned. If a person finds an object whose owner has not yet despaired of finding it (e.g., he didn’t even know he lost it yet), he must hold on to the lost article for the owner. This obligation, once initiated, remains incumbent upon the finder even if the owner later despairs of retrieving it.
A House Call
A physician was once summoned on Shabbos to a patient’s home and given jewelry as a security pending payment. A long time passed, but no one from the family paid him and he forgot the patient’s identity. Though the physician was allowed to sell the jewelry, he didn’t know what to do with that portion of the proceeds of the sale that exceeded his fee. The owner presumably relinquished any claim to the jewelry (“yi’ush”), but that was only after he was already safekeeping it waiting for the owner to retrieve it.
Though the Rishonim agree that a finder may not keep an item found before the owner relinquishes all claims it (even if he does so subsequently), they disagree as to why. According to Tosafos (infra 26b, s.v. “Eino over”), a person who find an article whose owner has not despaired of retrieiving it must observe the commandment of returning it – and this commandment remains incumbent on him even after yi’ush.
On the other hand, the Ramban (Milchamos Hashem, 14b in the Rif) maintains that such a finder is categorized as the owner’s guardian of the article. From the moment the article is found, therefore, it is not considered lost and any later yi’ush does not permit the finder to acquire it – just like yi’ush is obviously invalid for an object someone considers lost that is later found in his own home. A finder of a lost article may only take it if he can reasonably assume that the owner relinquished all claim to it before it was found.
The answer to the jewelry question depends on this machlokes between Tosafos and the Ramban. According to Tosafos, yi’ush after an object is found doesn’t change the situation since the finder already is mitzvah-bound to return it. But in this case, the physician was never under such an obligation. When the jewelry was deposited with him, it was not lost and, consequently, he may acquire it after yi’ush by the owner.
In the Ramban’s opinion, yi’ush after an object is found doesn’t change the situation since the finder is watching it for its owner. In this case, the doctor is doing just that – watching over the jewelry given to him as security for payment. Consequently, he may not acquire it even after yi’ush by the owner.