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 Shabbat Parashat Chayei Sarah | 5765P’ninat MishpatReturning Lost Objects - V - Proof of Ownership
We tend to think of the readiness of the finder of a lost object (aveida) to hand it over to the person who comes to claim it as an act of generosity. However, this “generosity” can, at times, be a sign of shirking responsibility. As mentioned before, one who retrieves an aveida becomes responsible to look after it. Not only does that mean that he ensure that it doesn’t get lost or broken, but also that it is not returned to the wrong person.
How does one know that the aveida belongs to the one who claims it? There are two basic ways to identify an object. One is by taking note of one or more identifying signs (simanim),such as a scratch, color, size, etc. Another is to recognize it in a more general, overall way (tviut eina). The latter is more reliable (that is the way we identify our friends and relatives). On the other hand, it is hard to know whether the person who says he recognizes the aveida is telling the truth.
Tviut eina can be corroborated in two ways. The simplest is if unconnected witnesses are the ones who recognize the aveida and identify its owner (Bava Matzia 27b). (Some commentators discuss the problem of how the witnesses’ identification precludes the possibility that after the witnesses saw the object by the supposed owner, he sold it to the person who lost it.) The second case one can rely on the identification is if the supposed owner is a talmud chacham (ibid.24a) or another who is known not to lie (Aruch Hashulchan, CM 262:25).
The system of identifying the object with simanim (without allowing the claimant to view the aveida) is also valid. However, the gemara (ibid 27 a-b) is unsure whether average simanim are sufficient from a Torah perspective or whether we rely upon them based on a rabbinic institution. The rationale for a rabbinic institution is that people who lose things would prefer that finders return objects based on simanim and not demand more conclusive proof. This is because the real owner’s chances of getting the aveida back are higher if he can vie for the chance to give the best simanim than if we raise the bar of acceptable evidence so high that even he will not be able to prove the ownership.
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