Question: If a finder finds a lost object with an identifiable feature but then loses the item himself, must he pay the value of the lost object to the original owner?
Short Answer: No, assuming a finder was not negligent in guarding the object, he is not liable if the lost object is lost or stolen under his watch.
I. Paid Watchman vs. Watching for Free
The Rambam (Hilchos S’chirus 1:1-2), based on numerous sources in the Gemara, explains the different rules and liabilities of watchmen. A shomer chinam, a watchman who agrees to guard an object for free, is exempt from having to pay the owner damages if the object is stolen or lost from his possession. The shomer chinam is also exempt from liability if the object is accidentally destroyed, such as when a watched animal dies. In these cases, the shomer chinam swears that he performed an adequate job watching the object, and then he has no further liability.
A shomer sachar, a paid watchman, on the other hand, is obligated to pay the owner damages if the object is lost or stolen under his watch. While the shomer sachar may swear that he adequately watched the object and thus exempts himself from liability if the object is accidentally destroyed, this same exemption is not available where the object is lost or stolen.
II. What Is A Finder?
A key issue with respect to a finder is whether he has the status of a shomer chinam or a shomer sachar. Indeed, the Gemara in a few places discusses this issue.
The Gemara in Bava Kama (56b) cites the opinions of two Amora’im regarding the watchman status of a finder of a lost object. Rabah rules that a finder is similar to a shomer chinam, and thus may exempt himself by swearing if he himself loses the object or it is stolen. Rav Yosef, however, rules that a finder is similar to a shomer sachar, and thus is liable if the found object is subsequently lost or stolen. The Gemara further elaborates on the reasoning of these Amora’im by setting forth two “versions” of their dispute.
In the first version, Rabah holds that the finder is like a shomer chinam because he is not receiving any monetary payment. Rav Yosef holds that the finder is like a shomer sachar because he benefits financially by guarding the lost object, as he does not need to give charity to a poor person who knocks at his door while he is attending to the lost object. In other words, his oseik b’mitzvah of hashavas aveidah exempts him from the mitzvah of tz’dakah.
In the second version, Rabah still holds that the finder is like a shomer chinam because he is not receiving any monetary payment. Rav Yosef, however, explains that the finder is like a shomer sachar because Hashem requires him – even against his will – to pick up, guard, and return the lost object.
The Gemara in Bava M’tzia (29a) likewise cites the opinions of Rabah and Rav Yosef but without providing any explanation for their opinions.
III. Whom Do We Follow?
The Rambam (Hilchos G’zeilah V’Aveidah 13:10) rules like the first version of Rav Yosef, that the finder is like a paid watchman because he is exempt from giving tz’dakah while attending to the object. Indeed, Tosafos (Bava Kama 56b) notes that the Behag and Rabbeinu Chananel agree, as well, that the finder is like a paid watchman. They cite a proof from the Gemara in N’darim (33b-34a). The Mishnah (N’darim 33a) states that where one forbids himself from benefiting from his friend and his friend’s possessions, “he” may still return a lost object to “him.” The Gemara debates the meaning of the words “he” and “him” in the Mishnah.
One opinion states that the Gemara means that the finder may only return the lost object where the owner is forbidden to benefit from the possessions of the finder. In such a case, the finder may return the lost object, as he is not giving “benefit” to the owner but is simply returning the owner’s own item to him. However, if the finder is forbidden to benefit from the owner’s possession, he may NOT return a lost object to the owner, as by doing so, the finder benefits because he now does not need to give tz’dakah to a poor person (i.e., the opinion of Rav Yosef).
A second opinion in the Gemara disagrees, and even if the finder is forbidden to benefit from the owner’s possession, he must return a lost object to the owner because poor people soliciting him while he is performing hashavas aveidah is uncommon. Yet, this opinion agrees that – had poor people been common while performing hashavas aveidah – such “benefit” is enough to forbid the mitzvah.
The Behag and Rabbeinu Chananel prove from this Gemara that a finder in general is considered a paid watchman, as both opinions in the Gemara N’darim appear to accept this reasoning.
The Ri, however, disagrees completely with the ruling of the Rambam, the Behag, and Rabbeinu Chananel. He holds that we pasken like Rabah, and thus a finder is like a shomer chinam, a watchman who works for free, and thus a finder is not liable if the object is subsequently lost or stolen from his possession. The Ri disputes the proof from the Gemara in N’darim as well. Indeed, even Rabah agrees that should the finder encounter a poor person during his watch, he would not have to give him tz’dakah, but Rabah holds that this “exemption” of tz’dakah does not turn the finder into a paid watchman.
IV. Shulchan Aruch vs. Rema
The Shulchan Aruch (Choshen Mishpat 267:16) rules like the Rambam, the Behag, and Rabbeinu Chananel, that the finder is like a paid watchman and is thus liable if the object is stolen or lost under his watch. As an aside, from the language of the Shulchan Aruch, as well as the language of the Rambam on whom the Shulchan Aruch is based, it appears that the finder has the status of a paid watchman the entire time that the item is in his possession, even though he is certainly not actively involved in the mitzvah of hashavas aveidah the entire time.
This is in contrast to the opinion of Tosafos (Bava Kama 56b), who appears to understand that the finder is only considered a paid watchman while he is actively involved in the mitzvah of hashavas aveidah. Note, though, that the Maasei Rokeach understands that the Rambam only views the finder as a shomer sachar when he is actively involved in the mitzvah of hashavas aveidah.
The Rama disagrees with the Shulchan Aruch and rules like the Ri. Thus, according to the Rama, a finder has the status of a shomer chinam and is not liable if the item is stolen or lost under his watch. The Rama references a similar ruling by a lender who holds security of the borrower and the security is stolen or lost.
Both the Sm”A (17) and the Shach (14) conclude that practically, because it is a safeik how to pasken, we will not allow the owner to demand payment from the finder should the item be stolen or lost during his watch. However, if the owner “grabs” payment, and the finder subsequently protests, we will not allow the finder to retrieve the “payment” that he made.
V. The Lost Object That Damages
But what about when the object “damages” someone (e.g., a cat scratches someone)? Is the finder obligated to pay the victim damages?
The Ohr Sameach (Hilchos Nizkei Mamon 4:4) addresses this question and rules that it is dependent on the two versions of the Gemara and the reason of Rav Yosef. According to the first version, that Rav Yosef rules that the finder is a shomer sachar because he saves tz’dakah that he would otherwise give a poor person, the finder is liable to pay damages to the victim just as a regular shomer sachar would be liable. However, according to the second version, that Rav Yosef’s opinion is based on the fact that Hashem requires him to fulfill the mitzvah and return the object, perhaps this “requirement” does not make the finder liable for damage done by the lost object.
The Ohr Sameach concludes, though, that, according to Rabah, that the finder is a shomer chinam, the finder is certainly not liable for damages. Since the Rama follows Rabah, presumably the practical import is that a finder is not liable for damages caused by the lost object.
Next Week’s Topic: May an owner offer a reward to anyone who finds his lost object? May the finder keep the reward?