Tikkun Olam in Lost and Found

Gittin (5:3) | Yisrael Bankier | 6 months ago

The fifth perek of Gittin continues listing other rabbinic enactments that were mipnei tikun olam. One of these relates to someone who finds and returns a lost object. The owner then claims that there was more that was lost. The Mishnah (5:3) teaches he need not swear that that was all he found. The Bartenura explains that were that not the case, it would serve as a disincentive to return lost objects. We shall try to understand this Mishnah.

The Ramban (51a) explains that the fact that the exemption is mipnei tikun olam, means that without that takana, the person would have been obligated to make a shevua. The case would then have to be where the owner made a definite claim that the person found more than he was returning. Since there is a partial admission -- mo'de bemiktzat -- he is obligated to make a shevua. That would not be the case of the owner only suspected or assumed that the person found more.

In most cases however, the owner would not have a definite claim. That being so, in general, someone who found a lost object would not be required to make a shevua. Nevertheless, the Ramban explains that most people are not versed with the laws of shevuot or know the difference between whether the claim was definite or not. Consequently, if they were to hear that a shevua was demanded from one that returned a lost object, they would hesitate, if not refrain from returning lost objects. Furthermore, even if he did know the difference, there would be a risk that the owner would nevertheless present a definite claim.

Interestingly, the Tosfot R' Akiva Eiger, citing the Rashba, refines our understanding of the "definite claim" in this case. If the owner's claim only comes to light based on the admission of the finder, then the finder is believed. This is based on a migo. In other words, since the finder could have claimed that it was his, because he presents the information that he found it, we believe him that that was all he found. If the owner claims that he saw the person collecting all that he lost and not all was returned, that would be like any other monetary dispute and not the topic of our Mishnah. R' Akiva Eiger explains that the case is where the person lost two purses tied together. The owner claims that he saw the other person find his lost item on a rooftop. Since the purses would not have come untied on their own, it is considered a definite claim that both purses were found. It is this case specifically that the Mishnah exempts the shevua, mipnei tikun olam.

The Tifferet Yisrael however cites the Sema who explains that if there was a definite claim, then a shevua would indeed be required. Instead he argues, that without a definite claim, this would not be a case of migo. He explains that whenever we have a partial admission (mo'de be'mitzat) we can no longer use a migo. Or as the Chatam Sofer (51b) puts it, one cannot use a migo to exempt themselves from a shevua. []{dir="rtl"}Why?

The Maharam Shif also understands that the owner did not see the person find his object, and that the definite claim stems from the fact that they were tied together. Nevertheless, he explains that a migo (or ha'peah sha'asar) only exempts one from a shevua when there is no further counter definite claim for more that stems from the admission. It is true that he could have kept quiet and kept the items and no one would have known. However, since there is now a definite claim demanding more than the part the finder is willing to return, were it not for the takana, a shevua would have been required.

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