Payment for Returning a Lost Item

Nedarim (4:2) | Yisrael Bankier | 7 years ago

Some of the Mishnayot learnt this week involved a case where one person made a neder against deriving benefit from another. For simplicity we will use the example where Reuven made a neder against deriving any benefit from Shimon. The Mishnah discussed various interactions between these two parties that would not be in violation of the neder. For example, the Mishnah (4:2) taught that Shimon would still be allowed to return Reuven’s lost property. The Bartenura explains that the Reuven would similarly be able to return Shimon’s lost object (despite the fact he is not allowed to derive any benefit from that object). He explains that this because when returning a lost object, he is fulfilling a mitzvah which is not considered as deriving benefit such that it would constitute a violation of the neder.¹

The Mishnah continues that when considering a case where one could receive payment for returning the lost object, and Shimon forgoes the payment, that benefit derived by Reuven would then need to be considered hekdesh. We shall analyse this law.

The Tosfot Yom Tov cites the Ran who explains that we are dealing with a case where Shimon has a legal right to claim compensation. This would be where Shimon took time away from work to return the object.² Consequently, if the case was reversed and Reuven was returning Shimon’s property, there would be no problem with Reuven receiving payment. Since he has a legal right for compensation it would not be considered as deriving benefit from Shimon.

The Tosfot Yom Tov however cites the Bartenura who explains that in this case both parties made a neder against deriving benefit from one another. The Bartenura explains that if Shimon is paid then he would be deriving benefit, while if he forgoes the payment then Reuven derives benefit. This appears to contradict our explanation above. The Tosfot Yom Tov explains that the Bartenura must understand that the payment in this case is not one of legal right or compensation, but rather one made as part of the local custom to give the finder a small reward. Consequently, even the receipt of the payment would be considered as deriving benefit and a violation of the neder.

The Tosfot Yom Tov however is uncomfortable with this understanding. Since it is a mitzvah to return one’s lost object, he is obligated to do so for free (see Tur ChM 265). It is difficult to understand that the Mishnah is dealing with a case where there is a minhag that goes against Halacha.

The Tifferet Yisrael answers that we find that if Chazal see that when relating to a mitzvah in financial matters people begin to violate a negative command, they are able to put halachic mechanisms in place to prevent that from occurring. For example, the Chachamim saw that as the shemittah year approached, people stopped lending money to those in need. They therefore instituted the pruzbel, though which loans were not absolved, thereby ensure critical lines of credit were kept open. (The Beit Din’s ability to do so lies in their ability to absolve financial ownership – hefker Beit Din hefker.)

The Tifferet Yisrael explains that the same is true in this case. The Chachamim saw that people stopped returning lost objects. Even though they were not doing anything else at the time and there was no lost opportunity cost, nonetheless they were still concerned that something might come up that they will miss while dealing with this lost item. This attitude resulted in the violating the prohibition of lo tuchal le’hitalem – you must not overlook. Consequently, to avoid this becoming widespread, they instituted that one could be rewarded for their efforts, even if there was no lost opportunity cost.³

¹ See the Tosfot Yom Tov who explains that even though his preoccupation in this mitzvah would exempt him from assisting an ani, which one might think is considered benefit, that situation is considered rare and therefore would not prevent him from performing the mitzvah of returning then lost object.

² How the compensation is calculated is debated and beyond the scope of this article.

³ Again the Tifferet Yisrael leans on the principle of hefker Beit Din hefker, explaining that Beit Din have the capacity to transfer the ownership of the reward fee to the returner, such that it is not considered as being a payment for the performance of a mitzvah.

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