Finders Keepers

Bava Metzia (2:1) | Yisrael Bankier | 3 months ago

The second perek opens by discussing lost objects and when the object must be returned, or when it can be kept. The Mishnah first lists those items that can be kept. The Bartenura explains that they can be kept because we can assume that the owner has given up hope of retrieving it -- yi'ush. Broadly speaking, the objects listed are generic and there is no way of identifying the owner.

The Tosfot Yom Tov refines our understanding of the list further. He explains that for all the object in the list, the owner will quickly be aware that they were lost. The Tosfot R' Akiva Eiger explains that if the object was found prior to the owner being aware that he lost it, then the object could not be kept.

The comments of the Tosfot Yom Tov, touches on the debate in the Gemara whether yi'ush shelo midaat is considered yi'ush. In other words, if the owner is not yet aware that he lost the object, but when he does he will certainly give up hope of retrieving it, is it already considered as if yi'ush has occurred. This is debated between Abaye and Rava. The Tosfot Yom Tov's comment is consistent with Abaye's opinion that yiush shelo midaat is not considered yi'ush. Why?

To paraphrase the Gemara, if the object was taken prior to the knowledge of the owner, it came into his hands "be'issura" -- in a prohibited fashion. What does that mean? R' Akiva Eiger cites the Ramban who explains that when it first came into the finder's hand, he because a shomer (guardian) to look after the object for the owner. Consequently, it is considered as if it is in the reshut (domain) of the owner when yi'ush eventually occurs and cannot be acquired by the finder.

According to the Ramban how do we understand the Gemara's comment that it came into his hands be'issura? The Ketzot (259:1) explains that the person did not violate an issur when he collected the lost object. Only if he intended to steal it would that be the case. Instead, citing the Ritva, he explains that he took it be'shaat issur. In other words, since it was before yi'ush, he was obligated to return it, and it is still considered in the possession of the owner. Consequently, it is forbidden for him to keep it.

We need to refine this understanding one step further. The Ketzot cites examples, where the yi'ush works regarding an object, even in the possession of the owner. For example, if someone finds coins in a shul he can keep them, even though a shul is considered a chatzer shutafim -- a joint domain. Instead, the Ketzot explains that when we say that the finder's hand is like the owner's hand, it is not just that it is considered in the property of the owner. Rather, even though the owner may have given up hope, this shomer has not, and his hand -- his position -- is equivalent to the owner and therefore the ownership is not relinquished.

The Tosfot (Bava Kama 66a, s.v. hacha) however have a different explanation for Abaye's position. They note that if someone steals an item before yi'ush, they would acquire it after yi'ush. The Tosfot explain that the reason why the law is different when it comes to finding a lost item is because at the moment he found it, he was already obligated to return it. The subsequent yi'ush cannot relieve him of the obligation. That said however, the subsequent yi'ush is effective to the extent that he needs to return the value of what he found and not necessarily the object, like in the case of the theft.

The Ketzot explains that the Ramban does not have this problem. The reason why the case of the theft is different is because he did not take it with the intent to return it. Consequently, we would not apply the same logic that "his hand is like the owner's hand".

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