Shabbat Parashat Nitzavim Vayeilech | 5769
Ask the Rabbi: Hashavat aveida
Question: Someone locked his bike to the banister next to the steps leading to our building. The wheel blocked a third of the steps. This created a significant inconvenience (especially to an old, sick man) and caused a couple of people to trip (it was not easy to notice the protruding wheel). After waiting several weeks when apparently no one moved the bike and being unable to ascertain the owner’s identity, we broke the chain and moved the bike nearby to a place where it does not disturb. Must we buy a new chain to lock up the bike to prevent its theft? (In our safe neighborhood, carriages and (often) bikes are left unlocked, and they can remain many months without being stolen.)
Answer: We need to first see if you had a right to break the chain and move the bike, as it impacts on your question also. In general, one may “take the law into his own hands” to remove/prevent damages in a manner that causes the least necessary loss to the damager (Bava Kama 28a; Shulchan Aruch, Choshen Mishpat 4:1). One may break things that prevent him from getting out (ibid. 412:2). It seems that the accumulated inconvenience and potential danger the bike caused justified doing something. If you exhausted reasonable efforts to find the owner and have him remove the bike, it was proper to break the chain and remove it.
At this point, why should you not have the normal responsibilities of hashavat aveida (which includes preserving the object until the owner is found- see Tosafot, Sukka 25a)? Perhaps you could claim to be exempt because there is no aveida, as the owner presumably knows where the bike is. Indeed, when one leaves his object purposely in a certain place, no one should take it to return it (see Bava Metzia 26b). However, this is not relevant because when the owner left it, the bike was chained up and now it is not. This resembles the case of one who hid an object in a garbage dump that was not slated to be vacated and now it is slated for removal, in which case there is an obligation of hashavat aveida when feasible (ibid. 24a).
However, a different exemption from hashavat aveida seems to apply. The gemara mentions in a few places (including Bava Batra 87b, Bava Metzia 25b) the situation of aveida mida’at (literally, an intentional losing). The common denominator of the cases is that an owner purposely left his object in a situation where its chances of remaining intact and in his possession are poor. In that case, one is not required to do hashavat aveida. The Rambam (Aveida 11:11) derives this from a pasuk (apparently based on a Talmudic source- see Shut Habach 97) that one does hashavat aveida when the object was “lost from him” (Devarim 22:3), as opposed to an intentional loss. The Rambam says that while there is no mitzva of hashavat aveida in this case, the finder may not claim the object. The Tur (Choshen Mishpat 261) says that the finder may take it because we consider the owner to have been mafkir (relinquish rights to) the object. According to the Rambam, there appears to be a rule that one does not have to go to greater efforts to protect someone else’s possession than the owner did (see Netivot Hamishpat 261:1; Even Haezel, Aveida 11:11). Similarly, in our case, when one left his bike in a manner that he should have expected people to eventually exercise their right to cut the chain, he knowingly exposed it to the prospect of being unprotected. Thus, you are not required to take steps to remove the danger he should have anticipated. The Tur probably agrees to this concept, in cases of aveida mida’at where hefker does not apply (see Bava Batra 87b; Netivot Hamishpat 261:1).
In summary, you are probably not required to obtain a chain for the bike you moved, especially if the bike is in a situation where he still has good chances of getting it back. On the other hand, you do not know what caused the owner to leave the bike as he did, and it would be a responsible move and nice gesture to protect it.
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