Lost and Found

Taharot (8:3) | Yisrael Bankier | 3 years ago

The Mishnah (8:3) teaches that if one loses an item during the day and finds it later, he need not be concerned that it became tameh. The Bartenura explains that if someone had found the item and handled it, they would have taken it like anyone that finds a lost object. The Mishnah continues that if however, it was lost at night and found during the day or lost during the night and found during the day, or lost during day and found the next day, then the item should be considered tameh. The Bartenura explains that in all those cases, it is possible that during the night someone tameh came into contact with that item unawares.

The Mishnah then continues by adding a general rule, that provided that some night has passed when the object was lost, when found it should be considered tameh. When a Mishnah presents a general rule after a list of specific cases, it is generally understood that is must be including something else that than was not already mentioned in the Mishnah. In this case however the Tosfot Yom Tov understands that the Mishnah is not teaching anything new, but rather providing a succinct way of remembering the halacha.

The Tosfot Chadashim however understands that had the Mishnah not followed with the rule, one might have thought that the law only applies if the item was lost either during the beginning or end of the night. If however it was lost in the middle of the night, when there are very few people around, one might have thought that there is no need for concern that the object became tameh. Consequently, the rule adds that if it is lost at any time of the night, it would be tameh when found.¹

The Bartenura explains that the ruling of the Mishnah applies only when the object was lost in the public domain. If however it was lost in the private domain, since all cases of doubt regarding tumah in the private domain are tameh, it does not matter when the item was lost and found, and it is considered tameh.

One might then ask, if doubts regarding tumah in the public domain are ruled as tahor, why does our Mishnah rule that if it is lost at some point during the night that it is tameh? The Mishnah Achrona explains that this is because it is almost certain that someone tameh stepped on it.²

The Mishnah Achrona notes that it would seem that the Bartenura contradicts his comment (6:6) that even in the private domain, if one can reason why the item did not become tameh, then it is tahor. The Mishnah there teaches that a doubt in the private domain is tameh unless one can say he did not come into contact with the tumah. The Bartenura explains that that statement need not be made with certainty and logical reasoning would also be sufficient. The fact that no one took the item might be considered such a justification. The Mishnah Achrona answers that because the item is in the private domain, even if one found it, they would reason that the owner intentionally left it there and not take it.³

¹ The Mishnah Achrona suggest that the general rule is there to include cases where the items was not lost, but rather intentionally placed there and forgotten. While the Tosfeta is more lenient in those cases, it still rules that if it is left in the public domain, it is tahor and if it is left in the private domain it is tameh (tameh midras, but not tameh met).

² See also the Tosfot, Sotah (28b) who understands that during the night, reshut ha'rabim has the status of reshut ha'yachid.

³ The Mishnah Achrona however questions this ruling. Recall that even though doubts regarding tumah in the private domain and generally ruled as being tameh, there are several reasons why in this case it should be considered tahor. One of the reasons he raises is that if the doubt involves something that cannot be interrogated (ein bo daat lishael) -- it does not involve a human being -- then it is tahor. This would appear to be such a case. The rationale the Mishnah Achrona provided above regarding the public domain, that someone tameh definitely stepped on the item does not apply during the daytime in the private domain. The Mishnah Achrona leaves this question unresolved.

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