Yeiush (I)

Having described (in the previous two shiurim) the mitzva to restore lost items, this shiur will inspect a fascinating halakha which determines the ability of the finder of the item to ultimately retain it as his own.  The gemara (23a) establishes "yeiush" as the factor which allows the finder to achieve ownership.  If, prior to the item's ultimate retrieval, the owner abandons hope of ever locating it, the finder may retain the item as his.  This abandoning of hope is known as "yeiush," and it must occur prior to the retrieval by the finder.  If it occurs after the retrieval, the finder must return the item.  Understanding the essence of yeiush and the manner in which it creates this permit is the subject of a machloket between several Rishonim. 

          Presumably, the simplest approach would be to locate a comparable mechanism and establish yeiush as its derivative.  The most popular and powerful mechanism for relinquishing ownership is known as hefker - a legal divesting of ba'alut (ownership) through a formal declaration.  Perhaps yeiush is a form of hefker: by acknowledging the inability to locate his item, and by resigning himself to its loss, the owner has effectively performed an act of hefker.  In fact, the gemara in Gittin (39b) asserts a parallel between yeiush and hefker when it discusses the release of an eved kena'ani.  The gemara establishes parity between someone who was mafkir an eved and someone who experienced yeiush over a lost eved.  This shadowing between yeiush and hefker lends greater credibility to the structural analogy between the two.  Many believe that Rashi adopts this position - based on his comments to Gittin (39b) as well as his comments to Bava Metzia (20a).  Though statements elsewhere in Rashi's commentaries suggest an independent nature to yeiush (see especially Rashi to Bava Kama 66a), many still impute this position to Rashi. 

          Most Rishonim, however, dismiss this parallel between yeiush and hefker.  They are troubled by limitations to yeiush which would not seem to inhibit a hefker-like process.  For example, as Tosafot in Bava Kama (66a) assert, yeiush as hefker should be effective even if the yeiush occurred subsequent to the retrieval.  If, indeed, yeiush is a form of hefker, why should it matter whether or not the yeiush preceded the retrieval? This limitation might indicate that yeiush operates independently of hefker and is therefore subject to unique limitations.  Other Rishonim point to the fact that yeiush affects only items which have been lost and physically dislocated.  Again, if yeiush is a form of hefker, it should presumably impact even upon items within a person's reshut - as hefker would.  Basically, the apparent limitations on the scope of yeiush convinced many Rishonim that it should be viewed as a separate halakha, rather than a natural derivative of hefker. 

          A second factor implying yeiush's independence is the presence of a Biblical source for this halakha.  The Torah employs the example of simla (garment) as an item which must be returned to its owner when it is lost.  The mishna in Bava Metzia (27a) infers from this iteration that only items similar to simla – in that they possess identifying properties - must be returned.  Most Rishonim (see Rashi, Tosafot and Rambam) explain that in the absence of identifying properties, the owner naturally loses hope of ever retrieving the item, and thus yeiush occurs, allowing the finder to keep the object. Hence, the employment of the term 'simla' provides an implicit source for the concept of yeiush.  The Yerushalmi in Bava Metzia (2:1) suggests a different source for yeiush.  The presence of independent sources for the concept of yeiush would also imply a mechanism which is autonomous of hefker; were it merely a reworking of hefker, presumably no additional pasuk would be necessary. 

          Yet a third indication that yeiush operates independently might stem from certain limiting factors of hefker which do not appear with regard to yiush.  Most notably, hefker must be performed as a verbal declaration in the presence of three people who serve as a beit din to register the legal proclamation.  In the instance of yeiush, we do not find any requirement that yeiush be acknowledged before three people, nor do we find any need for verbal declaration at all. The gemara in Bava Metzia (23a) does cite Rava as claiming, "The essence of yeiush is when the owner SAYS: Woe unto me for my loss! I am relinquishing hope."  This statement does, indeed, suggest that yeiush must at least be verbalized.  However, both Tosafot (Bava Metzia 22a s.v. shataf) and the Ramban (Pesachim 4b, in his discussion of bittul chametz) state explicitly that such verbal articulation is unnecessary.

          Several Acharonim cite a gemara in Bava Kama (66a-b) which also establishes yeiush as an independent force.  The gemara addresses a case of someone who steals chametz prior to Pesach, and allows him to return the chametz after Pesach (in its original, undamaged form).  Generally, the halakha of gezeila allows the thief to return undamaged stolen items without additional payment.  In this case, however, once Pesach has elapsed, the victim presumably experienced yeiush with regard to his stolen chametz.  How, then, asks the gemara, can the thief return chametz which has already undergone yeiush?  The presumption underlying the gemara's question is that subsequent to yeiush, the item no longer belongs to the original owner, and the thief therefore can no longer exempt his payment by returning an item which the victim no longer legally owns.  The gemara responds that yeiush transfers ownership only after and if the recipient intends to acquire the item.  If the current possessor of an item has no intention to achieve ba'alut over the item, yeiush does not effectively remove ba'alut.  In this scenario, the thief had no intention of acquiring the chametz (since it was Pesach, and the chametz was forbidden), and therefore the yeiush does not transfer ba'alut and the physically unchanged chametz may be returned.  This gemara raises some interesting questions about the mechanism of yeiush, but one concept seems clear: yeiush does NOT operate as standard hefker.  If it were classic hefker, it would comprehensively and immediately automatically remove ba'alut.  The delay in the change of ba'alut until acquisitional intent on the part of the possessor indicates a clear discrepancy between yeiush and hefker.