Question: May a claimant reclaim his lost object from the finder based on simanim (identifying features) alone or are character witnesses also necessary?
Short Answer: Depending on the value of the lost object, the nature of the simanim, and the righteousness of the claimant, character witnesses may be required.
I. Three Types of Simanim
The Sm”a (Choshen Mishpat 267:7) cites the Magid Mishneh who sets forth three levels of simanim with respect to returning a lost object. The first level, called “siman muvhak gamur,” is a siman that is super-distinctive, such as a hole next to a certain letter on the object. This first level has the status of two witnesses even mi’d’Oraisa.
The second level, called “siman muvhak,” is a siman based on some distinctive features, such as the size or weight of the object. Whether this second level of simanim are d’Oraisa or d’Rabbanan is heavily debated in the Gemara (Bava M’tzia 27a-28a). A ramification, according to the Gemara, is whether you should return a get (divorce document) to a messenger who loses the get on his way to deliver it to the woman. If simanim are d’Oraisa, it must be returned. If simanim are only d’Rabbanan, perhaps such enactment (i.e., to return lost items based on simanim muvhakim) only applies by monetary items and not to “issur v’heter” like divorce documents. The Gemara ultimately concludes that these simanim are d’Oraisa, based on the pasuk “ad d’rosh achicha oso,” that you need to first check (via simanim) if the claimant is a fraudster before you return the object to him.
The third level, called “siman she’eino muvhak,” is a siman based on generic features, such as color. This siman is generally insufficient to reclaim a lost object. [Note though that Rav P. Bodner (Halachos of Other People’s Money, p. 160, n. 79) cites a “talmid chacham” who wants to suggest that nowadays where we mass-produce many items and thus they all look alike, perhaps color or other weak siman is sufficient. However, Rav Yosef Shalom Elyashiv zt”l disagreed; only categories of simanim that are accepted in the Gemara/Rishonim are sufficient].
II. Are Simanim Sufficient?
But are simanim sufficient nowadays? The Gemara (Bava M’tzia 28b) recounts that “originally,” lost objects were simply claimed by the owner through simanim. However, after fraudsters became more common, the Rabbis required that the owner also bring witnesses that he was not a fraudster, i.e., character witnesses. This Gemara is codified in the Shulchan Aruch (Choshen Mishpat 267:6).
The Rama (ibid), however, notes that “some say” that even nowadays we return a lost object based on simanim alone, as long as the claimant sets forth the “simanim muvhakim.” This is the opinion of the Rosh.
However, it is unclear from the words of the Rosh, as well as the Rama, which “level” of simanim muvhakim are sufficient to reclaim the object without having to bring character witnesses. The Sm”a (9) interprets the Rosh/Rama as ruling that even regular simanim muvhakim, such as size or weight of the object is sufficient. This would make the Rosh/Rama argue with the previous halachah in the Shulchan Aruch (Choshen Mishpat 267:5), which expressly rules that “simanim muvhakim” alone are insufficient to reclaim a lost object nowadays; rather, character witnesses are necessary, as well.
On the other hand, the Shach disagrees. The only time the Rosh/Rama allows “simanim muvhakim” to reclaim a lost object without character witnesses is where the claimant states the simanim muvhakim “g’murim” such as a hole in a certain letter of the object.
The Aruch HaShulchan (6) notes a third opinion – the Taz – who rules that even simanim muvhakim “g’murim” are insufficient unless the claimant brings character witnesses.
III. The Talmid Chacham Exception
Yet, both the Sm”a (10) [according to the strict opinion in the Shulchan Aruch] and the Shach (4) note a key exception where character witnesses are not required to reclaim a lost object with regular simanim muvhakim. This exception is where the claimant is a talmid chacham.
Interestingly, the sefer Aveidas Achicha (p. 290) cites the ruling of Rav Shmuel Wosner zt”l that anyone who has the “appearance of a chareidi” is included in this exception and does not need to bring character witnesses. Moreover, the sefer Hashavas Aveidah K’Halachah (4:1:8) cites Rav Nissim Karelitz zt”l who ruled that it is sufficient for the finder to simply ascertain that the claimant is truthfully asserting simanim. No further character witnesses are required.
Indeed, Rav Bodner (ibid, p. 180-181) cites Rav Zalman Nechemia Goldberg zt”l that nowadays, where there are few instances of fraud with respect to cheap objects that are lost, no character witnesses are required. Thus, Rav Bodner notes that only “for valuable items” must character witnesses be brought, unless the claimant is “a mature yeshivah student or kollel yungerman.”
Next Week’s Topic: Is it permitted to simply return a lost object to a lost and found department in a store, or must you try to track down the owner yourself?