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 Shabbat Parashat Vayeira | 5764P’ninat MishpatThe Laws of Returning Lost Articles – IV - Beyond the Letter of the Law
We have seen that the main factor determining whether one has to return an object or not is the question if the original owner’s ownership fell off prior to the object being found. This distinction seems to be more of a technical, legalistic nature than a moral one. After all, if one can return the object, what difference does it make if the original owner gave up hope or not? In general, it is not our place to express an opinion whether we think that a given halacha conforms with our conception of morality or not. However, in this area, it appears that Chazal did.
The gemara (Bava Metzia 24b) says that if one finds an object in a place frequented by idol worshippers, he can assume that the owner gave up hope of getting it back, and the finder can keep it. However, Shmuel instructed Rav Yehuda that if he found an object in such a situation, he should return it to its owner. He explained that this was to conform with the concept of lifnim mishurat hadin (beyond the letter of the law).
The Shulchan Aruch (Choshen Mishpat 259:5) brings this concept as halacha, as he usually cites Talmudic statements which seem to be accepted by (the majority or critical opinions of) Chazal. The Rama (ibid. :7) brings the concept of beyond the letter of the law in another case, that of an object lost at sea, a context in which it is not found explicitly in the gemara. The Shulchan Aruch Harav (Metzia, 18) understands the Rama as not only extending the concept to another case, but in effect, creating a new rule. Whenever an owner reluctantly loses ownership of his item because he realistically gives up hope although he prefers not to, we expect the finder to do the moral thing, which is to return it, even when, strictly speaking, he isn’t obligated to do so. As the Aruch Hashulchan (CM 295:7) points out, the finder does not lose money by doing so; he just fails to gain at someone else’s expense.
As the Shulchan Aruch Harav (ibid.) points out, the finder is not required to announce or search out the owner. Rather, if he is approached or finds out who the owner is, then he should return it. This is logical according to the Aruch Hashulchan’s logic, for if he is required to search for the owner, then the time and energy is itself a loss of sorts. It also appears that unless one is confident that he will be able to reunite the owner with his object, nothing prevents the finder from using the object in the meantime.
Tosafot (Bava Metzia 24b) demonstrates that this extra-legal obligation goes beyond apparently parallel cases of going beyond the letter of the law. The concept often applies to one who does not use a halachic advantage that he deserves for some reason but follows the standard rules that apply to others. Here the suggestion to return is further beyond the letter of the law, as no one in this situation would have a legal/halachic obligation to do so.
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