One who is Minding a Found Article (56b-57b)

 

            Thus far we have dealt at length with the laws governing a shomer's obligation to watch over the property entrusted to him so that it not cause damage, which we have called the shemira of Bava Kama. Frequently the discussion shifted to what we have called the shemira of Bava Metzia, i.e., a shomer's obligation to watch over the property entrusted to him so that it not suffer damage.

 

Today's shiur is exceptional in that our passage puts aside the laws of Bava Kama in favor of a discussion of subject matter belonging to Bava Metzia, which for some reason was included in our tractate: the laws of shemira governing someone who is minding a lost article that he found. The discussion in its very essence belongs in Bava Metzia, both because the laws governing lost articles are discussed in the chapter of Elu Metzi'ot, and because the laws governing shomerim are discussed in chapter Ha-Mafkid, Ha-Sokher, and Ha-Sho'el. Let us, however, deal with the matter, and in the course of the discussion perhaps find a certain connection to our tractate.

 

 

I. The law of Shemira regarding someone minding a lost article

 

It was stated: A shomer aveida (a person minding a lost article that he found) – Rabba says: He is like a shomer chinam. Rav Yosef says: He is like a shomer sakhar. Rabba said he is like a shomer chinam, for what benefit reaches him? Rav Yosef said he is like a shomer sakhar, on account of the benefit he derives from not being required to give bread to the poor [while occupied in minding the lost article found by him]; hence he is like a shomer sakhar. Some explain it as follows: Rav Yosef said he is like a shomer sakhar, as the Torah imposed this obligation upon him even against his will; he is therefore like a shomer sakhar.

 

            According to Rabba, a shomer aveida is a shomer chinam. The reason he offers – "for what benefit reaches him?" – explains why he is not treated like a shomer sakhar, but it does not account for why he has the standing of a shomer in the first place. Two rationales are then offered to explain the position of Rav Yosef. The first explains why we can consider the shomer aveida to be one who has received “payment” (what is commonly referred to as "the peruta of Rav Yosef"), but once again ignores the question of how the obligation of a shomer is created. The second rationale ignores the matter of the payment, and says that the Torah imposed the obligation of shemira upon him, the consequence being that he is treated like a shomer sakhar. This rationale relates to the obligation of shemira, but leaves it to us to understand the matter of payment. We must, therefore, try to understand both the very obligation of shemira and the level of shemira that is required.

 

            What is the basis for saying that a shomer aveida is obligated to watch over it? Surely he never entered into any agreement with the owner and never accepted upon himself to watch the article. It seems to me that four possible approaches should be considered:

 

1. The very fact that the lost article is in the hand of the person who found it – The Tosafot in Bava Metzia (96b, s.v. ba'al) establish the rule that in situations in which, for one reason or another, an article belonging to one person is legitimately found in the hand of another, but not in a formal framework of shemira, the person in whose hand the article is found is treated like a shomer chinam.

 

This can be explained in several ways, but we will not exhaust the matter here. Let it merely be noted that if we adopt the view of the Rambam alluded to in the past, that someone who is guilty of negligence (i.e., someone who does not meet the minimal standard of a shomer chinam) is treated like someone who actually caused damage, whose liability goes beyond the framework of the laws of shomerim – it may be argued that any person who willingly enters into a situation in which his fellow's article is in his hand is expected to treat it with a minimal level of responsibility, and not with abandon that is equivalent to the conduct of someone who causes damage.

 

This approach can explain the law of a shomer aveida according to Rabba – the very fact that the other person's article is in his hand obligates him as a shomer chinam. The question may be raised as to whether this rule can also account for the view of Rav Yosef, namely, that this creates a framework of shemira, and so the addition of a component of payment suffices to turn the person into a shomer sakhar. This is not clear as there was never any agreement to watch over the article, but merely an expectation not to act with abandon.

 

2. Willing undertaking of responsibility on the part of the person who found the article – The Rishonim raise a question with respect to the viewpoint of Rav Yosef, based on the rationale of "the peruta of Rav Yosef" – why don't we say that every shomer chinam should turn into a shomer sakhar for this reason, for at times he must occupy himself with the entrusted article at one level or another? At first glance the answer is obvious, that there is no mitzva here, but merely the fulfillment of a shemira agreement, and therefore there is no exemption from giving a peruta to a poor person. Indeed, this is the Ritva's answer in Shevuot 44a. In Bava Metzia 82a, however, the Ritva offers a different answer: "In the case of a shomer, since [the article] reached him from the hands of the owner, and from the outset he accepted plain shemira without specifying further, we can be sure that he only accepted to be a shomer chinam, and even though he did not state this explicitly, it is as if he stated this explicitly. But in the case of a lost object, where [the article] reached him without the knowledge of the owner, and it did not reach him because of a shemira agreement, but because of a mitzva… I say that it is his intention to be a shomer sakhar with the peruta of Rav Yosef."

 

The Ritva proposes the novel idea[1] that someone who finds a lost article accepts responsibility of his own free will; that is to say, we assume that when he picks up the lost article, he accepts upon himself the obligation of shemira, and also a certain level of shemira.[2] According to Rav Yosef – argues the Ritva – we are dealing with a shomer sakhar based on "the peruta of Rav Yosef"; and according to Rabba – the Ritva would presumably say – this is only at the level of a shomer chinam.[3]

 

            These two proposals are not based on a special Scriptural decree regarding the restoration of lost objects. This stands in contrast to what Rav Yosef suggested in his second rationale cited in our passage: "The Torah imposed this obligation upon him even against his will." As was stated earlier, this argument was proposed to explain why he is a shomer sakhar, but it also provides a basis for the very obligation of shemira, and therefore it may also underlie the position of Rabba and the position of Rav Yosef according to the first rationale. In any event, we must understand where did the Torah impose an obligation upon the finder to watch over the lost article? Surely it would seem that the Torah merely commanded him to return it – "You shall surely return them!" Two different understandings may be suggested, which join with the two understandings mentioned above:

 

3. The obligation imposed by the Torah to return the lost object – Indeed the Torah only commanded the shomer aveida to return the lost article. However, even the obligation to return the article is in a certain sense an imposition of responsibility. Regarding a robber, we saw in previous shiurim the position of the Tosafot, that he bears no obligation to watch over the object, but only to return it, which means that he is liable in the case of ones (unavoidable accident). Regarding a shomer aveida this is not the case, as he is at most a shomer sakhar. It is possible, however, that here too there is an obligation to return the article, only that the Torah was lenient with the shomer – who is performing an act of kindness and fulfilling a mitzva – and relieved him from liability for ones,[4] and according to Rabba, even from liability for loss or theft.

 

According to this proposal, both Amoraim agree that we are not really dealing here with an obligation to watch over the article, but merely an obligation to return the article and an exemption from liability in certain circumstances. Therefore the dispute between Rabba and Rav Yosef – as it is formulated in the Gemara – is whether a shomer aveida is like a shomer chinam or like a shomer sakhar. Rabba maintain that he is likened – on the bottom line with respect to the cases in which he is liable – to a shomer chinam, because he does not receive payment. Rav Yosef in contrast maintains that he is likened to a shomer sakhar, whether because of the peruta of Rav Yosef or because of the argument that since the Torah imposed liability upon him against his will, there is no reason to be excessively lenient with him.

 

4. The obligation imposed by the Torah to watch over the object – Another possible understanding of Rav Yosef's position is that the Torah cast upon the finder an obligation to watch over the article, this being part of the mitzva to restore the lost object. This mitzva is a general obligation to save the other person's property.[5] Therefore it also includes an obligation to take care of and maintain the found object (as is explained, for example, in Bava Metzia 29b), as well as the duty to watch over the object. If a person is obligated to occasionally shake out a garment that he found, it stands to reason that he is also obligated to watch over it that it not become lost. This understanding can serve as the foundation of the very obligation to watch over the object, according to all three possibilities cited in the Gemara.

 

            Rabba – This might explain Rabba's position that he is a shomer, and according to him he is a shomer chinam, because this is considered a favor that he does on behalf of the owner.

 

            Rav Yosef (according to the first explanation) – This might also be the basis of Rav Yosef's position according to his first explanation, and according to him the benefit of "Rav Yosef's peruta" upgrades him to the level of a shomer sakhar. It should be noted already at this point that, as we shall see below, many Rishonim maintain that the exemption from giving charity only applies when he is actively engaged in watching over the object, e.g., if the poor person asks him for charity while he is actively shaking out the garment. If so, what exempts him is not his watching over the object in its narrow sense, because for that purpose it would suffice that the article is being kept in the finder's house, but rather the active maintenance of the object. It turns out then that the benefit is derived not from the watching, but from the obligation to be concerned about its well-being. According to what we have said, this poses no difficulty, for we are dealing with a single obligation, namely, the fulfillment of the Torah's command to be concerned about the object, and this mitzva leads to benefit, and therefore a person who finds a lost object can be seen as a shomer sakhar.

 

Rav Yosef (according to the second explanation) – According to Rav Yosef in his second explanation, this rationale is the basis for his being considered a shomer and for his being defined as a shomer sakhar. Why so? We can suggest various suggestions and formulations. I am inclined to connect this to the difference between a shomer chinam and a shomer sakhar that was mentioned in our first shiur this year. We explained there, based on the Gemara at the end of the seventh chapter of Bava Metzia, that a shomer sakhar has a job – watching over the object. A shomer chinam, in contrast, is not a professional nor does he have a job. His task is to treat the object as a person would treat his own property.[6] According to Rav Yosef, when the Torah commands a person to watch over an object, it imposes an obligation to watch it as if that were his job, i.e., as a shomer sakhar. Being a shomer chinam does not suffice, for all that means is not to treat the object with disregard or abandon.

 

We have suggested four possible ways to understand the basis for the obligation imposed upon a shomer aveida to watch over it. In the course of our discussion, we have touched upon some of the different viewpoints found in our passage. I would like now to consider two questions that connect today's issue to various topics that we have seen in previous shiurim:

 

1) In shiur no. 3, we dealt with the distinction made by the Tosafot, s.v. peshita, between a shomer, who is obligated to watch over the object entrusted to him, and a robber, who is only obligated to return it. The Tosafot conclude from this that in certain situations we should be more stringent with the shomer than with the robber: For example, where there is damage without a change (e.g., where some of the fruit rotted), the robber can say, "What is yours is before you," even if the damage came about as a result of his negligence, whereas the shomer would be liable for any damage caused by the shomer's negligence.

 

What is the law regarding this matter with respect to a shomer aveida? This seems to depend on the different understandings that have been proposed. According to most understandings a shomer aveida is obligated to watch over it, whether it is because of the fact that the other person's property is now in his charge, it is because he is treated as if he agreed to the arrangement, or it is because this is what the Torah commanded him to do. According to the third understanding, however, a shomer aveida is similar to a robber in that his basic obligation is to return the object, rather than to watch over it, only that in contrast to a robber, he is exempt from liability in those cases where he watched over it. With this in mind, there is room to say that he too should enjoy the leniency of a robber in this context. This was the position of R. Elchanan Wasserman: "A shomer aveida is exempt from that which a robber is exempt, for he is obligated to watch over it because it is written, 'You shall surely return it.' And since in a case of deterioration that can be restored he can fulfill the mitzva of returning the lost object, he is exempt from paying more" (Kovetz Bei'urim, Bava Kama, letter 47).

 

2) If the property that he found is an animal, is the shomer aveida liable for the damage that it causes? The answer to this question depends on the various understandings regarding the basis for liability of someone other than the animal's owner, and on the different understandings of the law governing one who is minding a lost article.

 

According to the approach offered in the aforementioned Tosafot, that "regarding damage anyone in whose hand it is to watch over it is called the owner," it stands to reason that the shomer aveida is liable, as he, and not the owner, is the person who can effectively watch over the animal. Even according to what we proposed in previous shiurim, that this is not the basis for a shomer's liability for damage, it stands to reason that this is only true about a shomer chosen by the owner of his own free will, as the owner is in control of his property and he chooses to entrust it to a shomer. Someone who lost his property did not choose to do so and he is no longer in control of the property, and so the Tosafot's rationale is valid here.

 

However, according to the other approach in Tosafot, that a robber is liable because of his partial ownership of the animal, whereas a shomer is liable because of his undertaking to watch it, the situation is less clear. If a shomer aveida is not obligated to watch over it, but only to return it, and in light of what we said earlier it is possible that he should be treated like a robber for leniency, with respect to the Tosafot's novel position – there is room to say that he is also not liable for damage (for in contrast to a robber, he enjoys no ownership[7]).

 

If a shomer aveida is obligated to watch over it, there is room to ask whether that includes watching over it so that it not cause damage. If the Torah imposed an obligation to watch over the object as part of the mitzva to return the lost property, it stands to reason that he is only obligated to watch it for the good of the owner, and not for the good of those who could potentially suffer damage. If, however, we are dealing with a regular case of watching over the article, because of the fact that it is found in the hands of the finder, or because of his tacit agreement to watch over it, this is likely to also include an obligation to watch over the animal so that it not cause damage.

 

It should be added that even if we adopt an understanding that justifies obligating him to watch over the animal so that it not cause damage, it is possible that he is only raised to the level of a shomer sakhar with respect to his liability toward the owner, but not for liability for damage. In that case he would not be liable for the keren damage of a tam animal, if he watched over the animal adopting shemira pechuta (precautions of a lesser degree).[8]

 

 

II. "The Peruta of Rav Yosef"

 

            In our passage "the peruta of Rav Yosef" serves Rav Yosef (in his first rationale) as the foundation for the law that a shomer aveida is a shomer sakhar, and in Nedarim 33a it serves as the basis to forbid the returning of lost property to someone from whom the finder is forbidden to derive benefit, as it turns out that he would derive benefit from him. The Tosafot in our passage cite the view of Rabbeinu Chananel and the Halakhot Gedolot who conclude from the passage in Nedarim that the Halakha is in accordance with the view of Rav Yosef, that one who minds a lost article is a shomer sakhar, and it seems that they understood that Rabba disagrees with the very existence of such benefit.

 

Why should this be so? It is possible that he maintains that it is difficult to see in this real benefit, or at the very least to see any benefit that reaches the finder from the owner of the lost article. Alternatively, it is possible that Rabba disagrees with the rule that "one who is occupied in a mitzva is exempt from fulfilling another mitzva." I have mentioned and will mention again the position of the Tosafot that this law only applies when it is impossible to fulfill both mitzvot, and therefore the Tosafot emphasize that the exemption is only in force when the finder is actively involved in maintaining the lost article, e.g., when he is shaking it out. But if we accept the condition of "unable to fulfill both of them," it is very easy to reach the conclusion that one can wait a minute before shaking out the garment and in the meantime give the poor person his charity. The Tosafot did not adopt this position, but rather said that one who is actively engaged in the mitzva will not abandon it, and the criterion is merely if he can fulfill both of them without interrupting his performance of the first mitzva. But it is possible that Rabba (according to Rabbeinu Chananel and the Halakhot Gedolot) disagrees on this point.[9]

 

            As opposed to Rabbeinu Chananel and the Halakhot Gedolot, the Ri maintains that "even Rabba agrees with Rav Yosef that one who is occupied with a mitzva is exempt from another mitzva, only that he maintains that one does not become a shomer sakhar thereby. But nevertheless he does derive benefit, and therefore it is forbidden to someone who is forbidden by vow to derive benefit, but he does not become a shomer sakhar." Why does he not turn into a shomer sakhar? It is possible that "Rabba maintains that Rav Yosef's peruta is infrequent" (Ritva, Bava Metzia 82a); or else "he maintains that with such a paltry sum he is not considered a shomer sakhar" (Tosafot ha-Rosh, Shevuot 44a); or else Rabba maintains that the payment must come from the owner, and here the benefit comes from his fulfilling a mitzva, and that does not turn him into a shomer sakhar.

 

            In any event, what stands to reason is the position of the Netivot (267, no. 3), that it makes no difference whether he actually derived benefit from the mitzva or he didn't. Rav Yosef considers the potential for benefit as the basis for the shomer's being defined as a shomer sakhar, whereas Rabba maintains that this is not taken into consideration. If in actuality there was benefit, this doesn't change the status of the shemira, and it certainly makes no difference whether the article was lost or stolen at the moment that the poor man arrived or at some other time.

 

            As for Rav Yosef's position itself, I confess that I have great difficulty understanding it. In addition to the fact that the benefit under discussion, as formulated in our passage – the exemption to give bread to a hungry pauper – is particularly jarring, it is exceedingly bizarre that due to the strange scenario in which he would possibly be exempt from giving charity we should define the person as a shomer sakhar.[10]

 

I wish to propose here a certain explanation, which is my formulation of what I heard from our Rosh Yeshiva, R. Yaakov Medan. But I admit that I am not fully satisfied with it, and I would be grateful if one of the readers offered an alternative. It is possible that the need for payment in order to be defined as a shomer sakhar is twofold: It is necessary that the shemira not be performed merely as a favor to a friend, but out of the shomer's interest, and it is necessary that the shomer should receive some benefit. It may be argued that the first requirement is met in the case of a shomer aveida based on the fact that we are dealing with a mitzva. This is not a favor performed for a friend, as in the case of a shomer chinam who is ready to receive an article in his safekeeping (even though this comprises a certain act of kindness, it is not really a mitzva), but rather a person's desire to perform a mitzva that was cast upon him, and perhaps even to receive reward for the mitzva.

 

This, however, is not enough. It is necessary to point to some concrete benefit, and the reward for performing the mitzva does not suffice for this, and therefore it must depend on the chance to gain the peruta of Rav Yosef. It is interesting that Rashi in Shevuot 44b disregards the famous peruta, and explains the position of Rav Yosef as follows: "Like a shomer sakhar – the reward for the mitzva." It is possible that this is the actual basis – the reward for performing the mitzva, and Rav Yosef's peruta is merely a way of finding some concrete benefit. Nevertheless, I am still not happy with this explanation.

 

 

III. One who is occupied with a mitzva is exempt from performing another mitzva

 

            I have already mentioned the position of the Tosafot that this exemption only applies when the shomer aveida is actually occupied with the lost article, and that it does not suffice that the article is found in his house: "For we only derive from the verse that a person who is occupied with a mitzva is exempt from another mitzva where he is unable to fulfill both of them. This stands to reason, for is it possible that a person who is wearing tefillin on his head, or has tzitzit on his garment, or a mezuza at his doorway, should be exempt from [all other] mitzvot?" Many Rishonim share this position. The Rashba (ad loc.) notes that the Ra'avad implies otherwise, that as long as the article is in his house, he is exempt from giving charity (how he deals with the Tosafot's proof requires further examination).

 

With this the Ra'avad joins another camp among the Rishonim that maintains that one who is occupied with a mitzva is exempt from another mitzva even when he can fulfill both mitzvot. However, this camp need not disagree, as does the Ra'avad, with the Tosafot's practical conclusion regarding a shomer aveida. This is because it may be argued that even though the exemption granted to one who is occupied with a mitzva is not limited to situations in which there is a clash between mitzvot and it is necessary to decide between them, nevertheless it is only granted to someone who is occupied with a mitzva, and not to anyone who is fulfilling a mitzva. Thus, for example, writes the Ran on the Rif in tractate Sukka (11a in Alfasi), who even understands that when the finder is occupied with shaking out the garment he is called "able to fulfill both of them":

 

It seems to me that one who is occupied with a mitzva is exempt from another mitzva even when he can fulfill both of them… For certainly when the lost article is being safeguarded in his closet, he is not exempt, for we speak about one who is occupied in a mitzva, and not about one who is fulfilling a mitzva, and somebody who is minding a lost article, even though he is fulfilling a mitzva, he is only occupied in it when he shakes it out for its benefit, and at that time he is certainly exempt from giving a peruta to a poor person, even though he can fulfill both of them and return to his shaking out… anyone who is occupied with God's work is not obligated by the Torah to make the effort to fulfill other mitzvot even though this is possible.

 

            About what point do the Tosafot and the Ran disagree? It seems to me that the root of their disagreement lies in different understandings of the exemption granted to one who is occupied in a mitzva.

 

            The Mishna in Pirkei Avot (2:1) teaches: "Be careful with a light mitzva as with a grave mitzva, for you do not know the grant of reward for the fulfillment of mitzvot." The Rambam comments about this as follows:

 

No explanation has been given regarding the reward from God for each of the positive precepts, that we might know which of them is more important and which is less so. Rather, He commanded that we perform this action and that action, without informing us which of the two carries greater reward from God. It is, therefore, fitting that we strive to fulfill all of them. Based on this principle, they said: One who is occupied in a mitzva is exempt from another mitzva, without distinguishing between the mitzva with which he is occupied and the other one that will pass from him. And for this reason as well they said: One may not pass over a mitzva, that is to say, if you have the opportunity to perform a certain mitzva, do not pass it up and abandon it in order to perform a different mitzva.

 

            The Rambam maintains that while it is derived from verses, the exemption granted to one who is occupied with a mitzva is based on the fact that we do not know the grant of reward for the fulfillment of mitzvot. In my opinion, it stands to reason that the reference here is not specifically to the reward, for we are not supposed to be like servants who serve their master in the expectation of receiving some gratuity. Rather, the reward granted for the fulfillment of a mitzva reflects the importance of that mitzva, and we do not know the relative importance of the different mitzvot. According to the Rambam, it would seem that we must adopt the approach of the Tosafot, that the exemption only applies to one who is unable to fulfill both mitzvot, for the root of the matter is the lack of desire to choose between the mitzvot according to their importance. If there is no need to choose, there is no reason to grant an exemption.

 

            What then is the basis of this law according to the view of the Ran and the Ra'avad? It is possible that they took a different idea from one of the derivations of the law governing one who is occupied in a mitzva (regarding Shema):

 

"When you sit in your house" - this excludes a bridegroom. "And when you walk by the way" - this excludes one who is occupied with the performance of a mitzva. Hence they said that one who marries a virgin is exempt [from the obligation to recite the Shema in the evening], while one who marries a widow is obligated to do so. How is the lesson derived? Rav Pappa said: [The circumstances must be] like a "way." As a "way" [journey] is optional, so whatever is optional [does not exempt from the obligation]. But does not the text treat [also] of one who is going to perform a mitzva, and even so the Torah said that he should recite? If that were so, the Torah should have written [simply]: "While sitting and while walking." What is the implication of "when you sit" and "when you walk?"  In the case of your sitting and your walking you are under the obligation, but in the case of performing a mitzva you are exempt. (Berakhot 11a)

 

            The Gemara learns from the words "when you sit" and "when you walk" that God's commandments obligate man only when he is involved in sitting for his own sake or in walking for his own sake, that is, when is occupied with the mundane world. The Torah turns to man and drafts him for the world of the holy. The Torah's commands are not addressed to one who is already in active service in the world of the holy. According to this there is room to adopt the viewpoint of the Ran, that the exemption applies even to one who can fulfill both mitzvot, as indeed is hinted at in the words of the Ran: "Anyone who is occupied with God's work is not obligated by the Torah to make the effort to fulfill other mitzvot even though this is possible." See also Rashbatz in his commentary to Avot (Magen Avot 2:1).[11]

 

Sources for the Next Shiur (no. 7)

 

             In the next shiur we shall examine the Gemara until p. 58a, "avuri chada chada" (but fill in independently until the colon at the top of p. 58b). We shall focus on two issues. The primary issue to be addressed is the payment made "to the extent of the benefit" (ma she-nehenet), and the relationship between that and "preventing a lion from damaging a neighbor's property" (mavri'ach ari). Learn the Tosafot, s.v. i nami (very long but not difficult to read), which forces us to consider also the case of one who repays another person's debt. For further discussion, see also Chiddushei ha-Ramban, Bava Metzia 30b, s.v. matni.

 

We shall also briefly address the argument that "you should have made them pass one by one" (iba'ei lekha avuri chada chada). The Rishonim pointed out that there is a contradiction between our passage and the Gemara in Bava Metzia 93a. See Nimukei Yosef here (24b in Alfasi, in the middle of the wide lines at the bottom, s.v. she-huchlaka).

, full_html, Thus far we have dealt at length with the laws governing a shomer's obligation to watch over the property entrusted to him so that it not cause damage, which we have called the shemira of Bava Kama.