Class Notes - Class #26

Mitzvot #538 and 539 deal with lost property.  Mitzvah #539 prohibits Jews from ignoring objects that appear to be lost.  Mitzvah #538 requires Jews to try to return lost property to its original owner.  Our author considers the shoresh of these mitzvot to be obvious.  People are forgetful and lose things.  Animals wander away from their owners.  People will live more harmoniously if the folks who find those animals or lost objects return them.  As with other economic questions we have seen, the rules for returning lost property are complex and rooted in reality.  Our author gives us only an introduction.

When it might be possible to identify the original owner and return the lost item, the finder is obliged to do so.  In order to return the lost property, the finder must be able to identify the owner of the object.  Someone who can identify unique characteristics of an item is likely to be its owner, so it matters whether the lost item is unique or if it is fungible.  Before the industrial revolution virtually all objects people owned were handmade and therefore unique.  My Bic pen is identical to your Bic pen, but my handmade cloth or bread or axe is not identical to someone else’s cloth or bread or axe.       

The finder needs to return the lost item to its original owner, not to someone else.  In some cases the original owner can claim the item by identifying something specific about the item, although in other cases the original owner has to bring stronger proof to recover the item.

If it is not possible to identify the original owner, the item belongs to the finder.  Even when an object is lost, it still belongs to the original owner, so it comes as a surprise that there are any cases where the finder gets to keep the lost item.  In general in halachah ownership depends on intent.  If I own something and decide that I no longer own it, my ownership ends.  If I lose an object but still have some hope of getting it back, I retain ownership of the item.  But if I lose an object and give up hope of recovering the item, I no longer own the item.  If the original owner has given up hope of recovering the item, the finder finds an ownerless item and therefore is free to keep the item.  Similarly, if the original owner has no reasonable prospect of recovering the lost item the ownership ends and the finder is free to keep it.  So whether a finder has to try to return a lost item depends in part of whether the original owner is likely to have given up hope of recovering the item.

Our author describes several factors that go into determining whether the original owner is presumed to have given up hope of recovering the item so that the lost object belongs to the finder, or whether the owner might still hope to recover the item so that the finder is obligated to try to locate the original owner and return the lost item. 

1.       Even in ancient times some items were fungible and some items weren’t.  If someone finds a unique item, in general the finder must try to return it its original owner.  If someone finds a fungible item, the item belongs to the finder because the original owner will know it will be impossible to prove he or she owns that particular item and will therefore give up hope of recovering the item.  Our author quotes the Mishnah that identifies examples of such fungible items: 

a.      Natural items, like scattered fruit or hunks of meat, or untreated sheared wool.

b.      Manufactured items that were fungible, like scattered coins or loaves of bakery bread.

c.       Natural items packaged together in the usual way, like processed flax, strings of small fish, small bundles of wheat stalks, and round packets of dried figs.  (We still package dried figs in the same way.)

2.      The location of a unique item provides information about whether the original owner still has hope of recovering the item or has given up hope.  

a.      An item that is found on public property is different from an item found on private property.  Think about a ball laying on the ground.  If that ball is in someone’s yard inside a fence, the ball isn’t lost at all.  If the ball is in an unfenced yard near the porch it probably isn’t lost at all or if it is lost the owner might try to recover it.  What about a ball laying on the grass near the curb?  In the street near the curb?  In the street near the garbage bins waiting to be picked up?  Obviously location matters, but exactly how can get complex.

b.      The finder gets to keep even a unique item that washes up on the shore of a large body of water, since people whose items wash away do not expect to recover the items. 

c.       In general, the finder has to try to return items lost in urban areas and marketplaces.  But there are exceptions. The finder gets to keep an item lost in a marketplace where most of the people in attendance are not Jews.  Since the non-Jews are not require to return lost items the original owner will give up hope of having the item returned.

3.      The condition and/or arrangement of the lost items can also convey information.

a.      Items that seem to be laying at random are different from items that are carefully arranged.  Let’s say someone finds several pieces of fruit.  If the fruits are scattered apparently at random it would seem the owner dropped them randomly.  But if the fruits are carefully arranged in a pile the owner must have paid more attention and also has some way to identify them, so it is still likely the owner hopes to recover the fruit.  In our example of the ball, the situation changes if the ball is next to a bat.

b.      The owner is unlikely to expect to recover an item of de minimis value, so someone who finds an item worth less than a p’rutah may keep the item.


Given all of those conditions, we can anticipate more complexity in cases where several of these rubrics apply.  Our author cites cases from the Talmud which distinguishes small sheaves of wheat.  The finder’s responsibility differs depending on whether the sheaves are in a public place or a private place and whether they are arranged carefully or apparently at random.

Under some circumstances, certain finders are exempt from the requirement to take custody of lost objects and try to return them.  For example, a cohen who spots a lost object in a cemetery should not retrieve it since the cohen is prohibited from going into a cemetary.  An elderly person might find it physically difficult to take custody or a lost item, or might find it beneath his or her dignity to get involved, so if the elderly person would not retrieve such an item if the person owned it, the person need not retrieve it if it seems to be lost.

Someone who finds a lost item that still belongs to the original owner has to take care of the item.  The finder also needs to publicize the find to help locate the original owner.

Our author’s relatively short discussion provides a glimpse into the complexity of this topic, and the author mentions several other aspects that he does not discuss in detail.  How does the finder publicize the find?  What does the owner need to do to prove ownership of the item?  What if several people claim to own the item and each accurately identifies a unique characteristic of the item?  What happens when the finder takes possession of the item before the original owner has given up hope of recovering it, or even before the owner knows the item has been lost?  If the lost item is an animal does the finder have to pay for its feeding and maintenance?  May the finder use the milk or wool from the animal?  May the finder use the animal for work?  How much work must the finder do to keep the found item in good condition?  May the finder use the item while looking for the original owner?  (Those are the questions raised by the cases of scrolls, t’fillin and cloth that our author mentions.) 

There are other complexities our author doesn’t even mention. Need the finder spend money to try to locate the original owner?  If so, does the original owner have to pay that back?  Who is responsible if the item is damaged while in the possession of the finder?  What happens if the lost item does some damage.  If someone loses an ox, and that ox destroys someone’s fence, the owner of the fence wants to be paid.  The finder will object to paying since the finder does not own the animal.  But the original owner might claim to have relinquished ownership of the ox before it broke the fence and therefore claim to be exempt from responsibility.   Our author does not deal with these issues.  As complex as this discussion seems, our author has only provided us with an introduction.  This time, though, the complexity impacts on our everyday obligations to others. 


We saw that, per mitzvah #80, Jews are required to stop and help another Jew who is unloading an animal that can no longer carry its load.  Mitzvot #540 and 541 continue that theme.  Mitzvah #540 is a negative mitzvah requiring that we not ignore another Jew who is struggling with an overburdened animal, and mitzvah #541 requires that Jews help reload the animal.  Our author understands the shoresh of these mitzvot as focused on helping the person. 

            In mitzvah #80 our author explained these mitzvot as examples of the character trait we should aspire to, of helpful compassion for others, whether we are fond of those other people or not.  If we are required to help a person whose problem is property management, all the more so if the person is suffering bodily pain.  Therefore it should not be surprising that our author extends mitzvot #540 and 541 from cases where a person is dealing with an overburdened animal to cases where a person cannot manage the load he or she is carrying.  Just as we help the owner of an overburdened animal, we also help an overburdened person.  Our author notes that the helper in this situation may ask for payment for loading but not for unloading. 

Overall our author envisions that when Jews see other Jews overwhelmed with burdens those other Jews stop and help.  Although our author does not say so, it is tempting to consider extending this notion from the case where Jews stop and help someone physically overburdened to any case where when Jews encounter someone who is overwhelmed in any way: Jews stop, pay attention, and help.


            Mitzvot #542 and 543 deal with cross-dressing:  mitzvah #542 prohibits women from wearing men’s clothing and mitzvah #543 prohibits men from wearing women’s clothing.

            Our author sees the shoresh of these mitzvot as a way to avoid improper sexual practices.  If men and women dress similarly, they will be more likely to hang out together, and that could lead to illicit sexual relations. Since sexual impropriety is a serious violation, God provides these mitzvot as an extra reminder to help us stay out of trouble.  The author does not say why men and women dressing in similar clothing would cause them to hang out together or how much hanging out together is too much.  The author also suggests that cross-dressing is prohibited to Jews because it is an idolatrous practice.  (Our author says he wrote about these two notions and then found that Rambam had also mentioned them.  This is rare evidence that our author did further research and editing after drafting his book.)

            Our author gives several principles for how these mitzvot apply to specific items.  These prohibitions apply to items of clothing and other personal accoutrements. Weapons are typically men’s accoutrements so women ought not to wear them.  Men are prohibited from certain personal grooming practices typical of women, for example wearing makeup, dying one’s hair, plucking out eyebrow hair or grey hairs.  Women should not wear clothing items worn typically by the men of a particular society, and vice versa. For example, in our author’s culture women ought not to wear the kind of turbans typically worn by men.

            The author does not explain what happens when these principles are in conflict.  For example, if men in a given society typically do pluck out grey hairs, may Jewish men pluck their grey hairs also?  If women in a given society do carry weapons, may Jewish women carry weapons?

            The author does mention the difficult situation of how these mitzvot apply to someone of indeterminate gender.  When a mitzvah applies equally to men and women, that mitzvah also applies to people of indeterminate gender, and everyone is potentially punishable for violating that mitzvah.  When a mitzvah applies differently to men and women, people of indeterminate gender should accept the strictures that would apply to men and the strictures that would apply to women.  The author says such a person should not wear a woman’s headgear or shave the hair off the head as men do.  But the person is not punishable since there is safek, doubt, about exactly what is prohibited for this person.  That explanation works in a society where men and women wear the same basic garments but wear different accessories or follow different hairstyles or grooming practices.  Our author does not say what a person of indeterminate gender should do in a culture where men and women dress very differently from each other.

            There are other questions about these mitzvot that our author also does not discuss.  If the application of these mitzvot depends on what people typically wear, what happens when styles change?  (Think about women wearing pants in our own culture.)  If different sub-groups of people dress differently, which people do we look to to define what people typically wear?  We saw earlier that both men and women fight in a milchemet mitzvah; presumably the women who are fighting do carry weapons.