Gezelah va'Avedah - Chapter 11

Sefer HaMitzvot (Positive Commandment 204) and Sefer HaChinuch (Mitzvah 538) consider this one of the 613 mitzvot of the Torah.

Sefer HaMitzvot (Negative Commandment 269) and Sefer HaChinuch (Mitzvah 539) consider this one of the 613 mitzvot of the Torah.

The Rambam is referring to the same negative commandment mentioned in the previous halachah. In this halachah, he is quoting Bava Metzia 26b directly and therefore uses a different proof-text.

For taking the property belonging to another person transgresses the prohibition against robbery. Indeed, on this basis we can understand why the Rambam coupled the two subjects (robbery and the return of lost objects) under the same general heading, instead of giving each a separate section in the Mishneh Torah. For misappropriating a lost object is an act of robbery. (See also Chapter 14, Halachot 6-7, for a further description of these commandments.)

I.e., because he is unable to withstand the temptation of his natural inclination (Avodah Zarah 26b).

See the following halachah.

See Hilchot Teshuvah 3:7-8, which elaborates on the definition of these two terms. The Kessef Mishneh asks why, in Hilchot Teshuvah, the Rambam does not classify as a min a person who violates a commandment as an act of rebellion. Kin’at Eliyahu notes that in Hilchot Teshuvah 3:9, the Rambam speaks of “an apostate with regard to a single mitzvah” in terms very similar to those he uses here.

At the conclusion of Hilchot Shabbat, the Rambam states that a person who publicly violates the Sabbath laws is equivalent to a gentile. In the present age, however, certain leniencies have been advised in this regard for Jews brought up in assimilated backgrounds. For their public violation of the Sabbath is not a direct denial of their Jewish heritage.

This is the term used by the standard printed text of the Mishneh Torah. It appears, however, to be a censor’s emendation. Most authoritative manuscripts and early printings read “an article lost by a non-Jew.” The proof-text also leads to such a conception.

I.e., a fellow Jew.

Rashi, Sanhedrin 76b, gives a different rationale: By returning a lost article to a gentile, one shows that one does not view the mitzvah to return a lost article as a Godly commandment, but rather as a social nicety.

In this context, the Jerusalem Talmud (Bava Metzia 2:5) tells the story of Rabbi Shimon ben Shatach, whose students bought him a donkey from an Arab trader. Hanging from the donkey’s neck was a jewel that the Arab had not noticed. Rather than keep the jewel for himself, Rabbi Shimon returned it. When he did so, the Arab blessed the God of the Jews.
This halachah also teaches that kiddush HaShem is not merely martyrdom for the sake of God’s name, but also includes living a life that brings honor to God and the creed that He gave mankind. (See also Hilchot Yesodei HaTorah, the conclusion of Chapter 5.)

I.e., that the gentiles would think the Jews dishonest, because they did not return the article.

Sefer Me’irat Einayim 266:4 explains that since the object has not become lost yet and is still in the legal possession of its owner, it is governed by different rules from those for a lost article.

The Ma’aseh Rokeach states that the wording of the Tur (Choshen Mishpat 266), when stating this law “together with Jewishly owned articles,” leads to the understanding that if a gentile’s articles are left outside alone, one need not bring them in. Only when they are “together with Jewishly owned articles,” and leaving the gentiles’ out would obviously spawn feelings of hatred, one must bring them in.

See Hilchot Geneivah 7:8, which states: “It is forbidden to deceive a gentile with regard to an account; instead, one must reckon carefully with him, as [Leviticus 25:3] states: “You should reckon with his purchaser.” See also the Rambam’s Commentary on the Mishnah (Keilim 12:7), where he elaborates at length with regard to the prohibition against stealing from a gentile, explaining that doing so: a) transgresses God’s will, b) reinforces undesirable character traits, and c) can lead to the desecration of God’s name.
The Tur (Choshen Mishpat 348) follows the opinion of Tosafot (Bava Kama 113b) and states that it is permitted to cause a gentile to err while making an account. The Ramah (Choshen Mishpat 348:2) quotes both opinions without deciding between them.

For even if the gentile later realizes that he erred, he will not blame the Jew. Thus, the honor of God’s name will be preserved.

The Rambam’s statements are based on the conduct of Rav Kahana, as cited in Bava Kama, loc. cit. There are others who regard Rav Kahana as showing a measure of piety that is not required by the strict measure of the law. According to these authorities, it is not necessary to check with the gentile in this manner (Maggid Mishneh).

Needless to say, these laws apply if the majority are Jewish.

See Chapter 13, Halachah 3-7.

We assume that since the article has a mark by which it can be identified, its owner will not despair of its return. Even though there are gentiles in the town, the owner hopes that it will be found by a Jew.

Since the article was lost in a place that is frequented primarily by Jews, the owner will assume that a Jew will find it and announce its discovery. Therefore, he does not despair of its recovery.

The Rambam’s words (taken from Bava Metzia 24a) raise an obvious question: How is it possible for the majority of the people in a Jewish synagogue or a house of study to be gentiles? The Nimukei Yosef explains that this refers to the gentile workers and guards, who live on the premises. The Jews, by contrast, are merely visitors.

Since there are a majority of gentiles located in these places, the owner cannot rightfully assume that his article will be discovered by a Jew. Therefore, he will despair of the article’s return, and at the time the finder discovers it, he will already have relinquished his ownership.
For this reason, the Shulchan Aruch (Choshen Mishpat 259:3) rules that if an article is lost in a city inhabited primarily by Jews, but in an area in which the majority of passersby are gentiles, there is no need to announce the discovery of a lost article.

This is one of the instances in which Torah law itself states that it is appropriate to go beyond the measure of the law. Indeed, the Siftei Cohen 259:3 states that if the finder is rich, he should be compelled to return the article.
The Ramah (Choshen Mishpat 259:5) states that if the finder is poor, and the one who lost the article rich, the poor man is not obligated to go beyond the measure of the law and return the article to him.

According to Scriptural Law, it is forbidden to drink wine from which a gentile has poured a libation to a false divinity. Our Sages extended the scope of this prohibition and also forbade wine that a gentile has merely touched (Hilchot Ma’achalot Asurot 11:4). Since the majority of the city’s inhabitants are gentiles, it is probable that the wine belonged to one of them and is therefore forbidden.

For as explained in the previous halachah, an article found in a place where most of the inhabitants are gentile belongs to its finder.

Because of the marks, we conclude that the wine belonged to the Jew. Hence, we permit it to be drunk, provided it was closed securely. According to the measure of the law, however, it need not be returned, because most of the inhabitants of the town are gentiles.

It is forbidden to be eaten, however, even if most of the inhabitants are Jewish. Our Sages forbade eating any meat that has been taken away from the eyes of an observant Jew (see Hilchot Ma’achalot Assurot 8:12).

When an object is ordinarily lost in such a town, one has legitimate reason to expect that it will be returned. However, in such an instance the tendency is to despair.

See Chapter 6, Halachah 2 and notes.

Even if an individual person claims that he did not despair of the recovery of his articles, his claim is not accepted, and the finder is allowed to maintain possession. Once an article is lost in such a situation, the owner has certainly abandoned hope of its recovery. Even if he persists in seeking it, this is merely wishful thinking.

The Tur and the Ramah (Choshen Mishpat 261:4) mention opinions that maintain that since the owner placed his cow in a shed, he is not considered to have abandoned it.

Any other person who finds an article in the public domain with a mark is obligated to try to return it. He cannot excuse himself saying, “Maybe the owner intentionally cast it away” (Sefer Me’irat Einayim 261:10).

Because the owner has not formally renounced his ownership of the article (Kessef Mishneh).
The Tur (loc. cit.) differs and maintains that abandoning one’s property in such a manner is tantamount to renouncing ownership of it. Hence, it may be taken by the finder. The Shulchan Aruch (Choshen Mishpat 261:4) quotes the Rambam’s opinion, while the Ramah mentions that of the Tur.

A copper coin of minimal value.

Bava Metzia 27a derives this concept from the verse stated in the previous halachah. “That he loses” implies that the article has significant intrinsic worth.
Shulchan Aruch HaRav (Hilchot Metziah UPikadon, law 37) states that (in contrast to the law stated in the previous halachah, in this instance,) the finder is entitled to keep the article for himself, because an object worth less than a p’rutah is insignificant.

See Halachah 17 and notes.

In his Commentary on the Mishnah (Kilayim 10:29), the Rambam explains that because the mitzvah of returning a lost article involves financial matters, it may be superseded by the consideration of a person’s honor. One is obligated to observe other prohibitions of the Torah, by contrast, even if one’s honor is compromised.
The term “respected elder” refers not only to a Torah sage, but to a person who is regarded with dignity for other reasons [Shulchan Aruch HaRav (Hilchot Metziah UPikadon, law 36)].

I.e., in a field there are fewer people, and it is less likely that he will be seen performing these demeaning activities by others.

Based on Bava Metzia 30b, the Rambam maintains that once a person has begun the performance of a mitzvah, he is obligated to complete it. Therefore, since he is obligated to return the article at the time he sees it, he must see that obligation through to its completion.
Rabbi Akiva Eiger cites the rationale of Tosafot, Bava Metzia 25a, who state that once a person who is obligated to return an article takes it, he is considered a watchman. Therefore, he cannot abandon the article unless it is returned to a proper place.
The Tur and the Ramah (Choshen Mishpat 263:2) quote the opinion of Rabbenu Asher, who maintains that all that is necessary for the distinguished person to do is to bring the article from the field to the outskirts of the city. He is not obligated to shame himself by carrying it through the city.

In his Commentary on the Mishnah (Bava Metzia 2:9), the Rambam writes that the form of השב is a מקור, “source.” This form implies that the activity it requires must be repeated many times if necessary.
Others explain that the obligation to perform the mitzvah repeatedly comes from the repetition השב תשיבם.

The Kessef Mishneh, the Radbaz (Volume V, Responsum 1544) and others question whether the Rambam’s ruling applies only to an animal or to other lost objects as well. From Bava Batra 88a, which states that the rationale for this halachah is that an animal has the tendency to bolt, one might conclude that it applies only to an animal. Nevertheless, the rationale given by the Rambam in this halachah - that once a person has begun the performance of a mitzvah, he is obligated to complete it - would imply that this obligation applies to other articles as well. From the wording of the following halachah, however, the Kessef Mishneh deduces that this halachah refers only to lost animals. See Shulchan Aruch, Choshen Mishpat 267:1.

As mentioned in the following halachah, there is no need for the owner of the lost article to be notified.

Because it was due to his negligence that the animal ran away again.

This law applies also if the finder knows that the owner will go out in the evening and places the lost article in a place where he will certainly notice it at that time. The Rambam speaks about the morning because it is more likely that one will be able to place an article in its owner’s path at that time - e.g., one may place it outside the door of their home. In the evening, a person is less likely to leave home.

For we assume the owner will take it.

For it is possible that the live animal will run away.

See Hilchot Geneivah 4:10, which states that a person who seeks to return a stolen article must notify its owner, or at least bring about a situation where the owner will definitely take note of it. These laws also apply to a robber and a watchman. Nevertheless, as stated above, more lenient rules apply with regard to the return of a lost object (Bava Kama 57a).

Since the owner himself placed the animal in this corral, we may assume that he considers it a safe place for his animal.

As mentioned in the notes on Halachah 7, this is one of the instances where Torah law itself says that one should go beyond the measure of the law.

The Rambam’s opinion is not accepted by all authorities. The Kessef Mishneh (in his gloss on Halachah 13) cites the opinion of Rabbenu Asher, who differs. He maintains that since the honor paid to a Torah sage is not a personal matter, but rather a reflection of the honor due the Torah, a sage does not have the right to forgo this honor for another person’s monetary welfare. If he desires to assist the other person, he may reimburse him for his loss. He should not, however, demean the Torah’s honor.
The Rambam, by contrast, maintains that since the person is demeaning himself for the sake of a mitzvah, he is showing greater honor to the Torah. The fact that he would not perform such an action for his own personal benefit, and yet he is willing to do so for someone else, shows how dear the Torah’s mitzvot are.
The Shulchan Aruch (Choshen Mishpat 263:3) quotes the opinion of the Rambam, while the Tur and the Ramah mention the ruling of Rabbenu Asher.

A positive commandment supersedes the observance of a negative commandment. For example, the mitzvah of wearing tzitzit supersedes the prohibition against wearing sha’atnez. Nevertheless, when the negative commandment is also reinforced by a positive commandment, it is never superseded by another positive commandment.
One might say that the commandment to return a lost object is also reinforced by a negative commandment, and thus the two are equally balanced. This is not a sufficient argument, however, for the power to supersede a negative commandment is dependent on the strength of the positive commandment itself (Rashi, Bava Metzia 30b).
The Maggid Mishneh questions the Rambam’s statements (and the passage in Bava Metzia 32a, which serves as his source), stating that there is actually no rationale to think that the priest should be obligated to return the article. For he does not begin fulfillment of the mitzvah until he picks up the lost article, but he transgresses the prohibition as soon as he enters the cemetery.

Thus, the same rationale stated in the previous halachah applies.
Significantly, Bava Metzia 32b mentions the same ruling, but supports it with a different rationale. Leviticus 19:3 states: “A person must revere his mother and his father... I am God,” implying that the reverence shown to one’s parents must be subordinate to the reverence of God.

I.e., the verse mentions only types of livestock and movable property. The word “all” implies that the scope of the commandment should be expanded to include landed property as well (Bava Metzia 31a). See Chapter 15, Halachah 4.
This law also teaches that the obligation to care for a lost article begins even before the article becomes lost. Although the land is intact before being flooded, a person must do what he can to ward off the impending danger.