The Laws Governing Discovered Objects and Entrusted Articles

The Rules Governing Discovered Objects and Entrusted Articles. (1-40)

1 When one1 sees a lost object belonging to a Jew2 and ignores it,3 he violates a negative commandment, as it is written:4 “Do not see the ox of your brother or his sheep astray and ignore them.” He also negates the observance of a positive commandment, as it is written:5 “You shall certainly return them to your brother.”

If the person took the lost object for himself, he negates the [above] positive commandment and [also] violates two negative commandments:6 “Do not steal”7 and “You may not ignore it.”8

If he recants and returns it to its owner, he rectifies everything, just like one who [amends his transgression by] returning a stolen object. For the negative commandment: “Do not see...” can be amended by [the fulfillment of] the positive commandment: “You shall certainly return,” just as the negative commandment, “Do not steal”9 can be amended by [the fulfillment of] the positive commandment: “And you shall return the stolen article.”10

When does the above apply? When [the finder] returned the lost object before the owner despaired of its [recovery]. If, however, the owner despaired of its [recovery] after [the finder] took it, [his transgression] is “A wrong that cannot be righted.”11 This applies both to the positive commandment and the negative commandments. [The rationale is that, at this stage,] returning the article is [not] considered [as returning the lost article, but] as giving the owner a present from [the finder’s] own property, because he has already acquired it due to the owner’s despair. [The situation] does not resemble the discovery of a lost article before [the owner] despairs, in which instance [the finder] is obligated to return it even after [the owner] despairs, as will be explained.12

[The distinction is as follows: Generally,] since [the finder] lifts [a lost article] up with the intent of returning it to its owner13 and not keeping it for himself, it is considered as an entrusted article in [the finder’s] possession. [As such,] it still remains in the domain of its [original] owner.14 Therefore, [the owner’s] despair [of its recovery] does not remove it from his domain, since despair is not considered totally analogous to declaring an object as ownerless.15

In this instance, by contrast, the person took the object for himself. [Hence] it did not become considered as an entrusted object in his domain. [Consequently,] while it is in [the finder’s] domain, it is not considered as in its owner’s domain, but instead, as existing in accessible and ownerless space. [In such a circumstance,] despair [over an article’s recovery] takes it out of its owner’s domain. Therefore, anyone who takes possession of it acquires it. Accordingly, [the finder] who is already in possession of it acquires it [when the owner despairs] and need not return it.

Most [authorities, however,] differ and maintain that [the finder] is obligated to return [the article. Their rationale is that] since it came into his possession in a forbidden manner, [the owner’s] despair does not change its status,16 just as [the owner’s despair] is not effective with regard to a stolen article, for this very reason.17 [Hence it is considered as still in the owner’s domain.] Thus when returning it, [the finder] fulfills the positive commandment of “You shall certainly return them,” and the positive commandment of “And he shall return the stolen article” and also amends the negative commandment of “Do not steal.” The negative commandment of “You may not ignore it,” is, by contrast, “a wrong that cannot be righted.” The law follows the majority view, particularly since it requires acting stringently with regard to a Scriptural obligation.18

2 The entire [discussion] above19 applies after the fact. Initially, however, all authorities agree that one is forbidden by Scriptural Law to [take a lost article] with the intent of acquiring it for himself before the owner despairs. [This applies] even if [the article] does not have a distinguishing mark, in which instance the owner will certainly despair of its recovery20 when he becomes aware of its loss.21 At [the time it is found], however, he is not yet at all aware that it has fallen. [Accordingly, a person who finds it] must take it with the intent of returning it to the person who will be identified as its owner by witnesses.

Even if he took it without any specific intent, as long as he did not have the intent to steal it, i.e., to take it for himself,22 all authorities agree that it becomes [considered as] an entrusted object in [the finder’s] possession and is considered as being in its owner’s domain. [Hence, even] afterwards, when the owner becomes aware of his loss and therefore despairs [of recovering the article], it does not leave his domain.23 Therefore it must be returned to him when his ownership is substantiated by witnesses [who testify that] they saw [the object] fall from this person.

[Nevertheless, in such an instance,] as long as the identity of the owner of the lost article is not clarified or known, [the object] belongs to the person who found it. He is permitted to use it or sell it, until the identity of its owner is clarified. Then he must return it [or its value] to him in full, as he found it.24

There are authorities who maintain that if it is impossible to determine the ownership [of the discovered article] through the testimony of witnesses before [the prophet Eliyahu] comes,25 [the finder] is forbidden to use it or sell it, since it is considered as in its owner’s domain until [the prophet] Eliyahu arrives. If witnesses do not [come], it should not be given to any person who claims ownership, for perhaps its [true] owner will come and bring witnesses [who support his claim].

The [latter] opinion deserves primacy [particularly since it requires] stringency with regard to [a point of] Scriptural Law and it is held by the majority of authorities.18

3 All of the above26 applies with regard to an article that does not have a distinguishing mark. If, however, the article has a distinguishing mark, all authorities agree that it is forbidden to use it27 or sell it. [Instead, the finder must hold the object without using it] until the owner comes and identifies it by its mark and takes it. [This applies] even if the situation is such that the owner will certainly despair of its recovery when he becomes aware that the article fell, e.g., it fell in a place where most of the passersby are gentile,28 [nevertheless, the finder was Jewish and] knew that it fell from a Jew.29 [In such a situation,] at the time the lost article entered the possession of the finder, the owner did not despair of its recovery since he was not aware of it falling. Thus, the object was forbidden [to the finder] at the time it entered his domain. [Hence the owner’s] subsequent despair is of no consequence. [Accordingly,] it remains in its owner’s domain forever, as explained above.30 Therefore [the finder] is obligated to announce [its discovery] and give notice so that its owner will come forth, [identify it] through its distinguishing mark, and take it, even though he had already despaired [of its recovery].

4 Even if it is clear to [the finder] that when the owner discovers that he took it, he will be happy and rejoice because of his love for him,31 it is forbidden for him to benefit from it32 without the owner’s knowledge.33 Therefore if one enters a colleague’s orchard or garden, he is forbidden to gather produce without the owner’s knowledge even if the owner of the orchard or garden is his friend who loves him as his own self and will certainly be happy and rejoice when he becomes aware that [his friend] benefited from his produce. Nevertheless, since at present, [the owner] is not aware, the friend is deriving forbidden benefit.34 Similar laws apply in all analogous situations. People at large should be cautioned concerning [this], since they tend to lapse regarding this matter due to a lack of knowledge.35

5 Nevertheless, it is permitted for a member of a person’s household to give a piece of bread to a poor person or to the son of a friend of the owner without his knowledge, for this is the common practice of householders36 and at the outset, the owner agreed to this when the bread entered his home.37 Thus this is not at all considered as acting without the owner’s consent, since this is the prevailing custom and the owner is aware of it.

For this [same] reason, it is permitted to accept small amounts38 of charity from women without their husbands’ consent,39 as explained in Hilchos Gezeilah.40 [The rationale is that] they are accustomed to [making such gifts] and their husbands are aware of their practice. (Similarly, with regard to an orchard, if one frequently partakes of its fruit with its owner’s consent, it is permitted [to partake of it without his expressed consent].)41 Similar laws apply in all analogous situations.

6 For the above reasons, when a person finds figs on a [public] path under a fig tree that leans over the path, it is permitted to partake of them42 even though the owner does not yet know that these figs fell.43 Nevertheless, since it is the normal pattern that figs fall from a tree,27 after the figs begin to fully mature, the owner despairs of recovering those figs34 that fall on the path.44

This applies even when the majority of the passersby are Jewish.45 [The rationale is that because of its softness,] a fig [usually] becomes repulsive when it falls. Hence its owner will not consider it important [and] he will not trouble himself to seek [its recovery]. In contrast [firmer fruits, e.g.], olives, carobs, and the like, that will not become repulsive when they fall, are forbidden [to be taken] if the majority of passersby are Jewish.46 Dates are governed by the same laws as figs, for their owner will despair of their recovery, even if the majority of the passersby are Jewish, because both domesticated and wild animals will eat them because of their sweetness.34

When does the above47 apply? In an ordinary situation. If, however, the owner made it clear that he is not despairing of their recovery, e.g., he set up a [net or the like] into which the dates that the wind causes to drop will fall and, needless to say, if he fences in the date palms so that domesticated and wild animals cannot enter, even those that fall outside the fence are forbidden. [The rationale is that,] at the time [of their fall], he was unaware that these dates fell outside the fence, even though when he discovers that [fact], he will [indeed] despair of their recovery.

7 Similarly, if the owner is an orphan [below the age of majority], the dates are forbidden even in an ordinary situation.48 [The rationale is that] a minor’s despair of the recovery of an article or his willingness to waive his ownership is of no consequence,49 even though he will certainly despair and waive his ownership when he comes of age. (Nevertheless, if a minor willingly gives a present, our Sages ordained50 that the gift be binding, so that others will do business with him.)

8 Even if a person finds an object when it is doubtful whether its loss was noticed by its owner, he is obligated to announce its discovery if it has a distinguishing mark. [This applies] even if he found it in a place where most [of the passersby] are gentiles.51

If it does not have a distinguishing mark,52 he should keep it [without making use of it]53 until Eliyahu comes25 or until the identity of the owner was clarified by witnesses, at which time, he should return it to him. Even though [the owner] already despaired of its recovery, since it is possible that it came into [the finder’s] possession when [he was] forbidden [to keep it, the owner’s] despair has no effect.54 [Since this involves] a doubt concerning Scriptural Law, one should act stringently.

Nevertheless, when one finds scattered coins55 without a wallet, he [may take] them as his own,56 even if he found them in a place where the majority [of the passersby] are Jewish.57 [The rationale is that] a person frequently checks the coins in his possession.58 Thus it can be assumed that he already became aware that they fell and he despaired of their recovery, since there is no distinguishing mark by which they can be identified. For a coin never has a distinguishing mark,59 since many coins are minted with the same imprint. Even if a person’s name is written on [a coin], we suspect that he wrote his name on several coins and the discovered coin was not the one that he lost, but another one upon which his name was also written — [a coin] that he spent and that fell from the person to whom he gave it. [The underlying principle is that] all coins are likely to be spent.

When, however, a coin has a split, even though it is also fit to be spent, [the split] can serve as a distinguishing mark, for there is no reason to suspect that another coin [belonging to the same person] also was split. Therefore, [the finder] is obligated to announce [its discovery]. Similarly, if one finds money in a wallet, [the finder] is obligated to announce60 [its discovery. The rationale is that] the wallet has a distinguishing mark. Even if one found scattered coins in front of a wallet, if it appears that the coins fell from the wallet, [the finder] is obligated to announce61 [its discovery] and return it to a person who identifies the wallet by its distinguishing mark.

Similarly, if one found a stack of coins which were obviously placed there intentionally for a brief time and then forgotten, their number or the location where they were found [can serve] as a distinguishing mark. When, by contrast, they were scattered, it is obvious that they fell [accidentally and] their location does not serve as a distinguishing mark. [The rationale is that] the person who lost them is incapable of pinpointing the precise location where the coins fell. Nor does he rely on their number to cause him not to despair of their [recovery], since it is possible that their number was diminished when they fell haphazardly.

9 Similarly, all other [unvarying] entities that like money are considered important and [therefore] will be checked by a person continuously,62 belong to the finder,63 [provided] it is obvious that they were not placed down intentionally, but had fallen. For, in such an instance, neither their location, nor their number can serve as a distinguishing mark. [This law also applies] to any heavy object that a person carries on his shoulder or in his bosom, for it can be presumed that he would notice [its loss] shortly after its fall,64 since his burden was lightened.59

[The above ruling applies when] there is no distinguishing mark on the [lost article] itself, nor was it tied in a manner that the knot is fit to serve as a distinguishing mark,65 i.e., it is tied in the same way everyone else ties such articles,66 without any unique variation. Neither is it fitting for its measure or weight to serve as a distinguishing mark,67 because [such articles] are never distinguished in this manner and the one who lost it is unaware of [its measure or weight]. For these reasons, he despairs [of its recovery].

Nevertheless, if [the discovered article] is something which its owner could recognize, e.g., a utensil which the owner could recognize,68 the finder is obligated to announce its discovery,69 even though it does not have a distinguishing mark, i.e., there are many utensils of similar form. [The above applies only] if he discovered [the article] in a place where Torah scholars are found, e.g., in a house of study.70

[The rationale for this obligation is that] ordinarily, a Torah scholar does not speak falsely except with regard to matters where it is permissible to “adjust one’s words,” as explained in Orach Chayim, sec. 156[:2].71 Therefore when a Torah scholar recognizes [the article] and claims it as his own, he will certainly not speak falsely. [Hence,] it should be given to him. There is room for doubt if this assumption prevails with regard to Torah scholars at present.72

If, however, one finds coins55 scattered73 in a house of study, he may keep them as his own, for there is no concept of recognizing a coin as one’s own. Needless to say, [this applies] if one found them in a synagogue.74 There is no need to give them to charity, as stated in Orach Chayim, sec. 154.75

10 Even if one founds [coins or the like] in a colleague’s house, if it is a house that many individuals enter and depart, they belong to [the finder]. Even if [the coins] fell from [their owner, it can be assumed that] he already despaired of their recovery and they are considered as ownerless.76 They need not be given to the owner of the house,77 because his property78 acquires on his behalf only ownerless articles that he will likely discover in the future and will not be taken by another person before him. Coins, however, are small and it is possible that they will never be found.79 [It cannot] at all [be said] that he relies on his property to guard them for him. And a person’s property does not acquire an article on his behalf without his knowledge80 unless it guards the entities contained in it for him, because it is surrounded by partitions.81

11 Therefore,82 even if there are not many people found in this house,83 a person’s property does not acquire coins that are found in his house and they belong to the finder, if it is known that they do not belong to the owner. By and large, however, it can be assumed that they fell from the owner or the members of his household84 and a homeowner will not despair of recovering an article lost in his house or courtyard.85 He will think: “Today or tomorrow, I will find it,” because it is a secure place and there are not many people entering there.

Similar concepts apply to an article found in a store behind the showcase,86 where many people do not enter87 or in [the premises of] a money-changer, behind his counter.

12 All the above applies when [articles] are found in a manner that indicates that they fell [from their owner]. If, however, one finds either coins or other articles that appear to have been intentionally set down, whether or not they have a distinguishing mark, they should not be touched if one found them in a place that is entirely secure.88 [This applies] even if the place is accessible to everyone, provided:

a) it is a hidden place, e.g., hidden in a permanent garbage dump in the public domain that will not be emptied, or in the midst of a pile of stones from an old wall that fell and the like,89 and

b) it is a place where the majority of the passersby are Jewish.90

[The rationale is that] this is not considered as a lost article which one is adjured to return, because it was placed there intentionally by its owner and even at the time [it was discovered], it is possible that he is conscious of it and has not forgotten it at all. He merely hid it there temporarily until he returns to that place.

However [the finder may keep the object, when] it is apparent that it was forgotten, e.g., coins that have become rusty,91 in which instance, they were obviously there for a long time and the owner certainly forgot where he hid them and despaired of their recovery.92 For he will not put trust in the possibility that someone will find them and announce their discovery, since he hid them in a private and secure place. Therefore the finder may keep them, even if there is a distinguishing mark on the wallet [in which they were held].

When does the above apply? When their hiding [place is located in] an open and exposed location. If, however, he found them deposited in a mound or in the earth in his colleague’s courtyard, we presume that [they belong to] the owner of the property and the finder may not take them even if they have become rusty. [The rationale is that] it is common practice for a person to leave his articles hidden in a courtyard that he understands to be secure, [even] for a very long time, for he considers [such a courtyard] like his home.

13 Even when one finds something that is not hidden and [it is] set down in a manner that raises a doubt whether it was placed there intentionally or [whether it] fell, he should not touch it if it is located in a secure place.93 [This applies] even if the place is ownerless, as long as it is private, i.e., a place where people do not walk at all.94

Even when the articles have a distinguishing mark and one seeks to take them to announce their discovery, he does not have license [to do so], for perhaps the owner [intentionally] hid them. Thus [by taking them, the finder] is needlessly causing him the trouble of seeking them out. Moreover, it is possible that he will not hear the announcement [of the find].95

If he transgressed and took [the articles] with the intent of taking them home,96 but did not take them home, he should return them to their place.97 If, however, he already took them home, he should not return them. Perhaps in the interim, the owner came to the place [where he hid the articles] and searched for them. [Since] he did not find them, he will not return to search in that place again.98 Thus if [the finder] returns them to their original place, he might cause the owner a [permanent] loss. Instead, if they have a distinguishing mark, their discovery should be announced. If they do not have a distinguishing mark, they should be set aside until [the prophet] Eliyahu comes.99 He should never take them as his own. [The rationale is that] perhaps the owner had not despaired of their recovery at the time they entered his possession. Thus they entered his possession in a forbidden manner.100

14 When does the above apply? When he found [the articles] in a totally secure place, for in such a situation, these are not the type of lost articles that he is obligated to return. [Different rules apply,] however, if he found them in a place that is not totally secure, e.g., he found them behind a fence in the fields, or on lanes in the fields. Although they are somewhat secure there, if they have distinguishing marks, one should take them and announce their discovery,88 so that the lost article can be returned to its owner. This applies even if they were definitely placed there intentionally.101

If they do not have a distinguishing mark, one should not take them, even if it is uncertain whether they were placed there intentionally.102 [The rationale is that] since the place is somewhat secure, it is possible the owner hid [the articles] for a time. Very shortly, he will return to retrieve them and will not find them.

If [the finder] transgressed and took them, but did not [yet] bring them back to his home, he should return them to their place, since there is no way he can fulfill the mitzvah of returning the lost articles to their owner since they do not have a distinguishing mark. If he [already] brought them home, they should remain set aside there until [the prophet] Eliyahu comes, for the reason that was explained.103

How is it possible for something placed down intentionally not to have a distinguishing mark? [Seemingly,] its location could be offered as a distinguishing mark. [In resolution, it can be said that this description] applies to doves whose wings are tied together. It is common for them to hop. One who loses them will despair of their return, for he will think that they hopped away from the place where he forgot them104 and he has no other means of identifying them. [Moreover,] the manner in which they were tied cannot serve as a distinguishing mark, for [we are speaking of an instance] where they were tied by their wings, and everyone ties them this way.

15 When one finds an article in a place that is not at all secure, if it has a distinguishing mark, he should take it and announce its discovery. If it does not have a distinguishing mark, he may keep it as his own, even if it was intentionally placed down, e.g., one placed down an article in the public domain to lighten his burden and then forgot it there. He will certainly immediately become aware that his burden was lightened after he proceeds beyond this place105 and will despair of its recovery. If, however, the article is such that it is possible that the owner will not become aware that he forgot it even after it came into the possession of the finder, it should remain set aside until [the prophet] Eliyahu comes.103

16 When does the above apply? With regard to an article about which it could be said that it was placed down and forgotten. [Greater leniency is granted] when, by contrast, it cannot be said that the article was forgotten, but instead it was consciously placed down by its owner who then left. Even though [his intent] was only to leave it there temporarily and then to come back directly afterwards to take it, it may be taken by the finder,106 even if it has a distinguishing mark. [The rationale is that] since the owner consciously placed it down, albeit temporarily, in a place that is not at all secure and then departed, certainly, the owner had in mind that if someone else came and took it, he could keep it. [Leaving the article in the public domain] is like despairing [of the recovery of a lost article] or declaring [an article] ownerless. This is not at all the type of lost object which we are adjured to return, for the verse [obligating the return of a lost object] states:107 “Which he will lose,” i.e., [a lost article, and] not one that is willingly abandoned.

If there is a doubt whether the object was intentionally set down and it has a distinguishing mark, one should take it and announce its discovery.108

17 In all instances where we have said that [the discovery of the article must] be announced — whether it was found in a manner that indicates that it was placed down intentionally or in a manner that indicates that it fell [unintentionally] — [the obligation only] applies when it was found in a place where the majority of passersby are Jewish,109 even if the majority of the city’s [inhabitants] are non-Jewish.110 If, however, most of the passersby are non-Jewish or even when most of them are Jewish, but it is a place where non-Jews frequent on a regular basis, e.g., non-Jews who serve as guards at the town’s gates,111 a person who finds an article there — whether it was found in a way that indicates that it was placed down intentionally or in a way that indicates that it fell — may keep it, for [the owner] assumes that it will be [found by] a gentile [and therefore despairs of its recovery].112 [Moreover,] even if a Jew comes and identifies it via a distinguishing mark, there is no obligation to return it to him, for it can be assumed that he already despaired of its recovery,113 provided it is an important article114 or a heavy one, in which instance, the owner will have become aware of its falling or being forgotten [when he temporarily set it down] before it comes into the possession of the finder, as explained above.115

Nevertheless, if one finds sacred Jewish texts or similar items that would certainly be brought to Jews for purchase,116 the one who lost them will not despair of their recovery, even if [they were lost in a place where] most of the inhabitants are gentiles. [Hence, the finder] is obligated to announce [the article’s discovery].

18 All the above applies according to the mandates of the law. It is, however, proper and upright to go beyond the mandates of the law117 and return an article to a person who identifies it by its distinguishing marks,109 even [if it was lost in a place where] the majority [of the inhabitants] are gentile and even if [the owner had] already despaired of its recovery. There is, however, no need to announce and publicize [the discovery of such an article]. Instead, if the owner comes of his own volition and asks for [the article] and identifies it via distinguishing marks, it should be returned to him. [Furthermore,] if [the finder] knows to whom the article belongs, he should return it to him even if he did not ask for it. Similarly, when an article does not have a distinguishing mark, if [the finder] knows the identity of its owner, he should return it to him even though he already despaired of its return. [The rationale is that] despairing of [an article’s recovery] is not entirely analogous to declaring an article ownerless, for he does not willfully despair of recovering his article and consider it ownerless.

19 Similarly, when a person retrieves an article from a lion, a bear, or a surging river that overflows [its banks], even though the owner despaired of the article’s recovery, the finder should act beyond the measure of the law and return [the article].

[This ruling applies] even though, according to law, [the finder] is not obligated [to return the article. Indeed, the finder is permitted to keep the article] although [the owner] did not despair [of its recovery] if [the owner] could not have saved it even had he have strained to do so.118

[According to the letter of the law, the finder may keep the article in such a situation,] because [the command to return a lost article includes] the phrase:119 “that was lost from him and that you found.” [Our Sages infer120 that the command applies to an article that] was lost [solely] from [its owner], but accessible to all others. It thus excludes [an article lost under circumstances where] it is lost not only to [its owner], but is also not accessible to all others, since it could not be saved at all.121 Even though [the owner] was standing by and protesting [that he has not given up hope of recovering the article], it is like someone who is protesting about his house that collapsed or his ship that sank at sea. No attention is paid to his statement that he does not despair of its recovery, because his thought is of no consequence when considered in the light of others.122

20 Similarly, [when] geese and roosters are unruly and flee from their owner’s home and they cannot be brought back at all, a person who takes possession of them acquires them like one who acquires an ownerless article. Nevertheless, it is appropriate for him to go beyond the measure of the law and return them, because, [as our Sages say:]123 “Jerusalem was destroyed solely because they establish their rulings exclusively on Torah law.”

There is, however, an authority who maintains that in all these situations, if the finder was poor and the person who lost the article was rich, there is no need to go beyond the measure of the law.

21 All the announcements of [lost articles] mentioned above must be made in synagogues and houses of study.124 In an era where there are evil people who say that a discovered article belongs to the king, it suffices [for the finder] to make known the discovery among his neighbors and acquaintances.125

When he announces or publicizes [the discovery of the article], he must state the type of article he discovered.126 [The claimant] should then identify it by describing its distinguishing marks. If, however, [the finder] said: “I found an article” and [a claimant] identifies the type of article, that is not considered sufficient identification. It should not be given to him unless he mentions very distinct marks of identification, e.g., its measure, its weight, the number [of articles lost], or the place [where they were lost].125

[A person who is known as] a deceiver should not be given an article [that he claims as his own] even if he identifies it via distinguishing marks, unless he brings witnesses [who testify] that it is his. When the amount of deceivers proliferated, [our Sages] ordained that a lost article should not be returned [to a person who identifies it via] distinguishing marks unless he brings witnesses [who testify] that he is not a deceiver126 or he is a Torah scholar who we can assume is not a deceiver. Even in the present generation, there are those who can be considered as Torah scholars in this context.127 There are many aspects involved with the particular laws regarding marks of identification. Hence one should not return an article when identified via a distinguishing mark unless he has asked a sage [for guidance].

22 When the finder announced and notified [others about the discovery of the article] and the owner did not come forth to claim it, the lost article should remain in [the finder’s] possession until [the prophet] Eliyahu25 comes.128 He is forbidden to use it or sell it unless selling it benefits its owner, e.g., it was depreciating in value.129 In such an instance, he should sell it130 under [the aegis of] a court.131

Similarly, he may use it for its own sake. What is implied? If he found a wooden utensil, he may use it sparsely for its sake, so that it does not rot. He may use a copper utensil with hot132 water,133 but he should not place the utensil on the fire, because that wears it out.

One may use silver utensils with cold water, but not with hot water, because it blackens them.130 One may use hatchets and the like on soft wood, but not on harder wood, because it damages them. Glass utensils should not be used at all, because they are fragile. Similarly, gold utensils and linen garments [should not be used], because they will remain undamaged when simply stored away.134

23 A woolen garment, by contrast, should be shaken out once in 30 days.135 It should not be shaken out with a staff, nor while being held by two people.136 It may be spread over a couch130 for its sake alone,137 but not for its sake and [the finder’s] sake,138 lest he forget it on the couch and it be stolen. If guests chance [to visit], he should not spread it out even for its own sake alone, lest they steal it (or cause it to be affected by “the evil eye”).139

24 What is the source that teaches that [the finder] must take action to care for the lost article so that it will not be ruined or spoiled? It is written:140 “And you shall return it to him.” [Implied is that] you should see to it that you return it to him intact.141

During the time [the finder] is occupied in caring for the article, he is considered as occupied in the performance of a mitzvah142 and is exempt from giving bread to a poor person or [performing] other mitzvos.143

The same principles stated with regard to a lost object apply with regard to an entrusted object whose owner traveled overseas.144 The person to whom the article was entrusted must care for it like one cares for a lost object. ([Nevertheless, a person caring for an entrusted article] is not allowed to sell it because of a forthcoming loss, e.g., [selling] chametz before Pesach.145 Were one to wait to sell [chametz] until the [beginning of] the fifth hour on the day before Pesach, he would [be forced to] sell it very cheaply.146 With regard to a lost object in such a situation, he would sell it earlier so that he could sell it at a higher price. With regard to an entrusted object, by contrast, he should wait until the fifth hour,147 lest its owner come and take it.148 Similar laws apply in all analogous situations.)

25 If one found [sacred] scrolls or they were entrusted to him, he should air them out once every 30 days by rolling them from beginning to end.149 When he opens them to roll them for their sake, he also has license to read them. He should not, however, open them merely to read them. [Even when he opens them for their sake,] he may not read a passage and review it, nor may he read a passage that he never studied before, because he will tarry over the passage excessively, touch many [portions of] the scroll, and pull it in different directions, thus damaging the scroll. This will not happen when reading a passage that he studied previously, for then he will [read it] without having to touch [the body of the text] at all.

When does the above apply? With regard to scrolls of the Tanach. [Different laws apply,] however, [to scrolls of] the Talmud. In such an instance, a person who is reviewing his subject matter for the hundredth time is the same as one studying for the first time. Indeed, a person who is more familiar [with the subject matter] requires greater concentration regarding [the study of] the laws necessary for [his understanding of] the passage that he is analyzing.

26 Just as it is forbidden to study [from a borrowed scroll],150 so too, it is forbidden to copy even one letter from it.

To what does the above apply? To a lost object151 or an object entrusted to a common person. If, however, scrolls were entrusted to a Torah scholar, there are authorities who permit [the scholar] to study and copy them if he does not possess similar [texts. The rationale is that] when [the owner] entrusted the scrolls to him, he knew that the watchman was a Torah scholar who would study them and copy from them. It can be assumed that he entrusted them to him with that intent. If, however, it is known that [the owner] objects to such [conduct], it is forbidden.

There are authorities who maintain that if [the owner] entrusted it to [the watchmen] without any qualifications and did not express his objection [to their use, he is considered as having given the watchman permission to use them].152 Even if he protests afterwards, that is of no consequence. Since [the owner] did not express his objection initially, [it can be assumed that] he agreed [to the watchman’s use of the scrolls], because he knows that [the watchman] is a Torah scholar. Thus it is as if he lent them to him for the entire duration of the time they were entrusted to him. Afterwards, he cannot retract [the license granted] until he comes to take back the entrusted article,153 because the Torah scholar already acquired the rights to borrow [and study from the scrolls] when he drew them into his domain.154

Nevertheless, if a person borrowed money and provided scrolls [as security], all authorities agree that even a Torah scholar is forbidden to study or copy them, because of the prohibition against taking interest,155 unless [the owner] would also lend [the scrolls] to him even if he was not given a loan, as stated in Hilchos Ribis.156

27 All the above157 applies when the scroll comes into [the scholar’s] possession with the owner’s consent or when found by him. It is, however, forbidden to go a friend’s house and read from his scroll without his consent even only on occasion lest the owner object [out of fear that] the scroll be damaged. ([This restriction applies] even if [the scholar] is certain that he will not damage [the scroll], for any time a person borrows [property] without the owner’s consent, he is considered as a thief, even if he does not damage [the property] at all.158 [True,] when there is a mitzvah involved, we assume that a person will derive satisfaction [when a mitzvah is performed with his property] if he knows that the article with which the mitzvah will be fulfilled will not be damaged, as stated in Orach Chayim, sec. 14[:9].159 When, however, [an owner] is concerned about a [possible] loss, he would object to his property [being used for a mitzvah] to the same degree that he would object to it being used for a matter that is not a mitzvah. Therefore,160 even though in truth, [the borrower] will not damage the scrolls at all, he is forbidden [to make use of them], just as he would be [prohibited] with regard to [using an article] for his personal needs.)161

28 Just as it is forbidden to use a discovered article or an entrusted article for one’s own needs, so too, it is forbidden for a person who found money that he is obligated to return162 to lend it, neither to himself, nor to others.163 Similar [laws apply to] money entrusted to him.164 Nevertheless, if one entrusted [money] to a money-changer or a storekeeper unconditionally, he is permitted to use it.164 [The rationale is that] it is known that a money-changer and a storekeeper are wont to trade continually with money and they are always in need of cash. [Since] the person entrusted the article unconditionally and did not reveal his desire that [the storekeeper or the money-changer] not use his money, it can be assumed that he agreed to [their using it] and that he does not object. Therefore the money is considered as if it was lent to them, to use when they desire.165

[There is, however, an exception:] When the money was entrusted while sealed or tied close with a peculiar knot. [By doing so,] the owner makes it clear that he does not want [the recipient] to use the money. In the present age, when, [generally,] we do not own fields and vineyards and our entire financial enterprise [primarily] involves commercial activity, every person is considered like a storekeeper or a money-changer, for every person is in [continuous] need of money. If the person who entrusted [the money did not want the recipient to use it], he should have revealed his intent.

With regard to what does the above apply? To money. With regard to other articles and the like, even though every specimen is the same166 and there is no difference between them at all, it is forbidden to use [the entrusted] article167 and make restitution with another [afterwards], even though there is no difference between the article used and the article with which it is replaced, just as [there is no difference] with regard to money. [Nevertheless,] since the owner does not know that the person to whom the article was entrusted desires to use that article, there is no clear proof that he acquiesced [to its use].168 Thus [the person to whom the article was entrusted is considered to have used it] without the owner’s consent169 and to have misappropriated the entrusted article.170 For the Torah’s conception of misappropriating an entrusted article is not limited to taking it with the intent to steal it. Instead, [it applies also to one who takes it] with the intent of returning an article that is exactly equivalent to it. [Nevertheless,] since he takes the entrusted article — whether in its entirety or a portion [of it] — out of its [owner’s domain]171 entirely, he is considered to have misappropriated the entrusted article.

If, however, he does not take [the article] out of its [owner’s domain] entirely, but instead, uses it for his own purposes, rather than for the sake of the entrusted article, and the entrusted article is neither ruined or damaged at all through being used in this manner, he is not considered to have misappropriated the article, but rather to have borrowed it without consent.172 And if he clearly knows that the person who entrusted the article does not object to his [use], it is permitted to do so.

Needless to say, this applies to an article that people will not object to its use at all, because there is no concern that using it in this manner will ruin or destroy the entrusted article at all. Nevertheless, if [the person to whom it was entrusted desires] to use it in a way to which some people would object because there is some concern that [the article] will be ruined, even if it is but a distant concern, it is forbidden to use it [for that purpose. This applies] both to a lost article and an entrusted article. The person would be considered as one who borrows without [the owner’s] consent even though it is absolutely clear to him that the article will not be damaged at all,173 unless he knows that the one who entrusted174 it will not object [to its use] at all.

There are authorities who forbid the use of an entrusted article even for a purpose to which it would not be common for people to object at all, [and consider doing so] as misappropriating [an entrusted article. Their rationale is that the prohibition against] misappropriating an article is a Scriptural decree applying to an article that was entrusted to [the watchman] even if it would have been permitted [for him to use it] if it had not been entrusted to him.175 A conscientious person176 should give weight to their words.

29 As long as a lost object is in a person’s domain, he is obligated to guard it as a watchman must.177 It is not sufficient for him to place it together with his own objects.178 [The rationale is that] with regard to his own property, he is permitted to place it where he desires, [even in a insecure location,] but he may not put anything belonging to another person anywhere other than a secure location. This principle also applies with regard to an entrusted article.

What is meant by “guarding an article as a watchman must”? Everything depends on the nature of the entrusted article. There are entrusted articles, e.g., large bundles of flax and the like, that are guarded by placing them in a guarded courtyard. There are others, e.g., a dress, a cloak, or the like, that are guarded by being kept in a home. And there are still others that are guarded by being kept in a locked chest, e.g., silk clothes, silver vessels, or golden vessels. This also applies to money in places where it is not customary to bury it in the ground, because thieves are not that common.179 When one transports such articles on a journey, they require extra care so that they do not pass out of his sight before he reaches home and locks them [in a chest] as is appropriate.180

When a chest contains food, one should not place clothes in it, for it can be assumed that mice will force their way into a chest that contains food.181 Needless to say, this [surely] applies to a room where food is kept. Instead, the clothes should be hung on a [high] rod. A person should not allow other people to enter a room where an entrusted article is kept, even though they are not known to be thieves, as long as he does not know that they are honest and trustworthy.

30 A person is not permitted to entrust an entrusted article to others even though they are more honest and trustworthy than he is.182 There is, however, an exception: a person to whom the owner of the entrusted article would frequently entrust valuable articles like this.183

Nevertheless, a person is permitted to transfer an article entrusted to him to his wife or another member of his household who is past majority [for safekeeping. The rationale is that] a person who entrusts the article knows that it is common for a person to give [entrusted] property to his wife or the members of his household [for safekeeping] and he entrusted it to him with this understanding.183 [The watchman] should not, however, give it to his son or daughter who are minors, nor to another relative who does not live with him or eat at his table, unless the owner knows that the person to whom he entrusted the article frequently entrusts articles to that [relative].184

31 When [a watchman] comes to return an entrusted object to its owner, he should not return it to one of the members of his household185 without [the owner’s] knowledge and consent. This [ruling] also applies to returning an article that he lent him and to the repayment of a debt. He may, however, return it to the person’s wife, for it can be assumed that she is involved in the household finances and the husband entrusts everything he owns to her.

32 If [a watchman] desires to travel to another city and does not desire to bring the entrusted article with him, either because of the responsibility or because of the difficulty of taking it with him on the way, he may transfer the entrusted article to the court186 and the court will assign it to a person whom they consider trustworthy.

(All the above187 applies to an entrusted article.188 A lost article, by contrast, may be entrusted [by the finder] to one whom he considers trustworthy to guard it. [The rationale is that] he became a watchman over it only due to the Omnipresent’s commandment189 and [the rule,] a person’s agent is considered as the principal himself,190 applies with regard to all the mitzvos.)

33 A person who sees [flood]waters advancing to inundate a fellow man’s field or destroy his building is obligated to construct a barrier in front of them to prevent their [flow].191 [The commandment to return a lost object] mentions192 “for all [property] lost by your brother,” including landed property. Similar laws apply in all analogous situations: if one can save a fellow man from a loss, he must strive with all his strength to do so.

One is not, however, obligated to undertake expenses to do so193 unless he is certain that his fellow man will repay him. For this reason, the obligation to return a lost article does not fall on a person who is professionally employed, whether he works at a craft, in a store, or is involved in other commercial activity in a way that taking the effort to return the lost article will cause him to lose profit that he could have earned, for it is possible that the owner of the lost article will not reimburse him for it.194

34 Even if [the rescuer’s] loss of profit is only a dinar and the lost article or other cost to the owner is 100 maneh,195 [the rescuer’s] personal interests take priority.196 [This can be inferred from] the verse:197 “May there be no poor among you.” Implied is that your personal concerns take priority.

Nevertheless, a person should go beyond the measure of the law and not be exacting, saying: “My concerns take priority.” If he is always exacting in this manner, he removes the yoke of deeds of kindness from himself and ultimately, will require the assistance of others. Nevertheless, if his own loss is obvious and perceptible, his own concerns take priority, even over those of his father and his teacher. The question of who is given priority, his teacher or his father, is explained in Hilchos Kevod Rabbo VeTalmid Chacham.198

35 Just as [the responsibility to care for a fellowman’s property] is superseded by [concern for] one’s own finances, so too, it is superseded by [concern for] one’s own honor.199 For example, when a distinguished scholar or elder200 finds lowly utensils that he would not normally carry in the presence of others, he is not obligated to care for them. He should make [the following] assessment: If he would return the article [to his home] if it were his own, he is obligated to return it if it belongs to his fellowman. And if he would not forgo his honor if the article was his,201 he is not obligated to return the article if it belongs to his fellowman. If it would be his practice to carry such articles in the field,202 but not in a town, [the ruling depends on where he finds the lost articles]. If he finds them in the town, he is not obligated to return them. If, however, he finds them in the field, he is obligated to return them until they are brought to their owner’s domain. Even though he will enter the town [carrying] them and this is not his practice, [he must complete the mitzvah], since he already became obligated [to return] them in the field.

There are authorities who maintain that he should only bring them from the field to the town and then deposit them [at the outskirts of the town].203 A G‑dfearing person should adopt a stringent stance with regard to his own conduct as mandated by the first view, [since] a Scriptural [commandment] is involved.

One who follows the path of goodness and justice should go beyond the mandates of the law and return a lost object in all situations,204 even though it compromises his honor. [And indeed] every person should go beyond the mandates of the law, as explained above.205 There are, however, authorities who maintain that a scholar is not permitted to degrade the honor of the Torah.206 Instead, if he desires to go beyond the mandates of the law, he should make financial restitution [for the article] with his own funds. The statement:207 “When a master [of Torah is willing to] forgo his honor, his honor may be ignored” applies only to extra dimensions of respect, e.g., standing before him and glorifying him, but he is not permitted to degrade himself in public, for this is a disgrace to the Torah.

According to the first opinion, this is not considered as disgraceful to the Torah, since he is acting for the honor of heaven, for he is not performing these activities with his own property,208 but with [the property of] another person.

When possible, a conscientious person should adopt a stringent stance with regard to his own conduct as mandated by the latter view, [since] a Scriptural [commandment] is involved. For example, if he knows to whom the [lost] articles belong, he should pay him [from his own resources] and thus fulfill his responsibility according to all authorities.

(If, however, he does not know to whom [the lost articles] belong, he cannot fulfill his responsibilities according to all authorities.209 According to the first opinion, [the scholar] should go beyond the mandates of the law and take [the lost articles] and announce [their discovery]. And if someone will identify them via their distinguishing marks, he should return them to him. According to the second opinion, by contrast, doing so violates a Scriptural prohibition.)210

36 [The above exception applies] even to a person who is not a Torah scholar or a distinguished elder, but is a respected person due to another quality, e.g., wealth, family lineage, or other attributes. [If,] as a result, he would be embarrassed were people at large who know about his positive qualities to see him carrying such articles, he is not obligated [to endeavor to return them] according to law.211 [No leniency is,] however, [granted to] a person who is not considered important by people at large, but is merely haughty in his own eyes and aggrandizes his self-importance and hence, would be embarrassed to act in this manner in front of people at large although in their eyes, this would not be shameful for him.212 He is obligated to return [the lost articles] according to law even though, had they belonged to him, he would not have returned them [to his home].

37 Needless to say, a person is obligated by law to exert himself [in caring for lost articles] until he returns them to their owner’s domain even though he would not take the trouble to bring such items into his own home because they are simple and of little value, but not because [doing so] is compromising to his honor. [The rationale is that] a person may choose to relinquish his own property rather than exert himself physically. He may not, however, do so with regard to his colleague’s property. For the Torah showed consideration for people’s honor,213 but not for their physical exertion. [One must undertake] even excessive exertion for [an article] that is worth merely a p’rutah.214

When, by contrast, a lost article is not worth a p’rutah, [the finder] is not obligated to return it.215 [Furthermore,] he is permitted to take it for himself even when he knows the identity of the owner. [The rationale for this leniency is that] the Torah prohibited stealing an article worth less than a p’rutah,216 for the thief is performing a transgression when taking it but not taking a lost article for one’s own.

[The reason] one is permitted, to pick up [such] a lost article from the ground [can be explained as folows]: Since it is lost to its owner, there is no longer any obligation to return it to [the owner], because anything worth less than a p’rutah is not financially significant at all, neither with regard to the mitzvah of returning a lost object,217 nor with regard to returning a stolen article, as will be explained in Hilchos Gezeilah.216 Therefore there is no prohibition against theft [in taking it] as there is with regard to a lost article that is worth a p’rutah, as explained above.)216

38 Similarly, an article lost by a gentile is permitted [to be kept by the finder].218 The Torah forbade only stealing from him, for a transgression is committed by doing so.215 [This license is intimated by the commandment to return a lost article that speaks of:]219 “Everything lost by your brother;” this excludes a gentile. [Indeed,] one who returns it to him violates a transgression,220 because he strengthens the hand of the wicked of the world.221 If, however, one returns [the article in order] to sanctify G‑d’s name, so that [the gentiles] will praise the Jewish people and know that they are trustworthy, it is praiseworthy.222 If [keeping a lost article that had belonged to a gentile] will lead to the desecration of G‑d’s name — e.g., one found the article in a place frequented primarily by Jews and the gentile will think that the article was not lost, but rather stolen from him by Jews — keeping the lost object is forbidden according to Scriptural Law223 and one is obligated to return it to him.

If one found an object belonging to a Jew that had been entrusted to a gentile as security and had been lost by the gentile, one is obligated to return it to the Jew at no cost. [The rationale is that] the security itself belongs to the Jew and the lien the gentile had on it is released once the object was lost. [The finder] is not allowed to return it to the gentile to sanctify G‑d’s name, for he [only] has that option with his own property, but not with property belonging to someone else.224 If, however, the interest owed on the security had accrued to more than its worth, in which instance, it becomes the gentile’s property, he is not required to return it to the Jew.

39 A Jew who serves false divinities or who [purposefully] desecrates the Shabbos in public is considered as one who renounces the entire Torah.225 He is not considered as “your brother” and the law is that it is forbidden to return to him an article that he lost. A similar [ruling applies to] the heretics, i.e., Jews who deny the Torah and the prophetic spirit, and those who renounce the entire Torah or the majority of it. [This ruling applies even if their denial does not involve] the desecration of the Shabbos or the worship of false divinities.

[Greater leniency applies,] however, if one only renounces some of the mitzvos, e.g., he eats non-kosher meat for pleasure or violates other transgressions for pleasure and not with the intent of angering [G‑d] (for one who violates [any] transgression with the intent of angering [G‑d] even once is considered as a heretic and as one who renounced the entire Torah). It is a mitzvah to return an object that he lost. [This is derived from the phrase cited above:] “Everything lost by your brother.” This also includes226 one who renounces part of the Torah.

In Hilchos Nizkei Mammon,227 it is discussed whether one is obligated to return an object lost by a person who collaborates with gentile authorities or serves as an informant for them.

40 Although consideration for the financial loss of one’s fellowman is superseded by concern for one’s own honor,228 it is not superseded by concern for the honor of one’s father or mother, even though an association was made between their honor and the honor of the Almighty.229 Thus if one’s father tells him: “Do not return this lost article now, because I need you to provide me with food and drink,” he should not heed him.227 [This is derived from] the verse:230 “A man shall fear his mother and his father... I am G‑d.” [Implied is that] “you are all obligated in My honor.”231

Nevertheless, the mitzvah of returning a lost object and similarly, any other mitzvah involving preserving a fellowman’s money is superseded by regard for G‑d’s honor.232 For example, if a lost article is in a cemetery, a kohen should not become [ritually] impure233 [in order to return it]. Even a Rabbinic prohibition should not be violated for the sake of one’s fellowman’s property, e.g., one should not lift up money found on the Shabbos.234 For a prohibition may not be superseded by financial concerns, as [implied by] the phrase: “I am G‑d.” [Implied is that] “you are all obligated in My honor.”235