Hashavat Aveida Part 2
The previous shiur discussed the essence of the mitzva of hashavat aveida and whether it is defined as a mitzva surrounding the gavra or the cheftza. The shiur examined the global ramifications of this question and, specifically, whether the mitzva might extend to situations in which no particular item was lost. Clearly, though, this question would impact upon the nature of the mitzva even within classic examples of hashavat aveida – returning lost items. This shiur will examine some of the consequences within the more conventional cases of returning lost items.
At what point does the obligation commence? The gemara in Bava Metzia (26b) discusses a person who collects a lost item with intent to steal rather than return. Such an individual has violated (among other mitzvot) the mitzva of hashavat aveida. This gemara suggests that the mitzva only commences with the actual collection of the item. A second gemara (30a) describes a predicament where performance of hashavat aveida is obstructed by multiple mitzvot. If a kohen seeks to perform hashavat aveida but must travel through a cemetery to retrieve the item, he faces both an asei and lo tesei impeding his path (a kohen is forbidden from entering a graveyard by both a positive and negative commandment). In this instance, the gemara asserts, even though he is obligated in hashavat aveida, he should decline the mitzva. The implication, though, is that, under normal circumstances one becomes obligated in the mitzva of hashavat aveida immediately upon seeing a lost item - even before collection. In this case, however, even though the obligation has taken effect, the kohen should decline the mitzva so as not to violate a different mitzva. In general, though, the mitzva commences even prior to collection.
The apparent contradiction between these two gemarot can already be glimpsed in different textual nuances in the Torah itself. In Parashat Mishpatim, the Torah introduces the mitzva of hashavat aveida with the term, "ki tifga" – "when you encounter," whereas the operative term in Ki Teitzei is, "lo tireh" – that one should not see a lost item and ignore it rather than returning it. Which event launches the mitzva - seeing it, or encountering it (suggesting some form of physical contact)? Each gemara adopts a different term and provides a slightly different impression.
The Rishonim took very different approaches to this issue. The Ramban ruled that the mitzva applies only after actual collection, and he labors to reconcile the different impression which emerges from Bava Metzia (30a). By contrast, the Rambam and Ran argue that the mitzva begins immediately upon witnessing a lost item, and they in turn are forced to reinterpret the gemara on 26b. Quite possibly, the machloket is based upon the broader issue of how to define hashavat aveida. Clearly, the original owner's vulnerability precedes the actual collection of the item by the finder. If the mitzva is defined as protecting the financial interests of others, then it should begin as soon as those interests are noticed – when one first witnesses a lost item. If, however, the mitzva is defined as restoring dislocated items, one might argue that the full dislocation occurs only when a finder collects it. Even though the item had already been lost, it had not entered a different person's possession. From both a legal and empirical standpoint, the item is, at this point, still 'attached' to its original owner. Once it is collected by another person, the dislocation process has culminated and the obligation to restore the item begins.
This machloket expresses itself in yet another related area. Having questioned when the obligation to perform the mitzva begins, we might explore which act is considered the actual performance of the mitzva. Clearly, the actual re-depositing of the item in the owner's property (the actual return) would be considered an act of a mitzva. But would the previous actions (efforts invested in collecting the item, watching the item, etc.) also be considered part of the mitzva, or merely hekhsher mitzva (preparatory actions vital toward the ultimate performance of the mitzva, but not legally defined as the actual ma'aseh mitzva)? This question would greatly impact the question of asei docheh lo ta'aseh – situations in which the mitzva can only be executed by violating a lo ta'aseh (such as the aforementioned case of a kohen entering a cemetery). The Ramban rules that only the actual return can be classified as a ma'aseh mitzva, whereas the Ran claims that the entire process of retrieving and restoring the item can be considered the ma'aseh mitzva. It is likely that this machloket runs parallel to the debate mentioned earlier. If we view the mitzva as a "cheftza-centric" obligation, to restore lost items, we might indeed adopt the Ramban's strict definition: only at the point in which the item is repositioned in its original location is the mitzva being performed. The Ramban consistently views the mitzva as relocating lost items. As such, the obligation only starts once the person collects the item, and the legal ma'aseh mitzva is limited to the actual return of the item. By contrast, the Ran believed that the mitzva involves the concern for the financial interests of others. The obligation to do so devolves once the situation has been witnessed (even before collection), and the entire process leading up to the return of the item may be defined as the ma'aseh mitzva.
Yet another consequence of this issue would pertain to an interesting machloket as to how we define an item as an aveida. Typically, a 'lost item' is one which was dislocated from the owner without his knowledge. This item must be retrieved, guarded, preserved and, ultimately, returned. What about an item which was intentionally placed in an area by the owner and subsequently forgotten? This question is debated by Tosafot and the Ramban in Bava Metzia 25b. Tosafot rule that as the item was forgotten, the laws of aveida apply and the passerby is obligated to retrieve and restore. The Ramban, by contrast, argued that since the item was not dislocated without the owner's knowledge, but was placed there intentionally, the guidelines of aveida do not apply. Perhaps this debate, too, can be pitched within the larger question of how to understand the mitzva of hashavat aveida and, by extension, the definition of aveida. If the mitzva revolves around protecting the financial interests of the owner, little discrimination would be made between unintentionally dislocated items and items which were knowingly placed but subsequently forgotten. In each instance, the financial interests of the owner are at stake and the mitzva dictates that those interests be protected. If, however, hashavat aveida demands the restoration of halakhically dislocated items, it might be limited only to items which were 'fumbled.' Items which were positioned but subsequently forgotten would not be considered aveidot. This position of the Ramban might then be consistent with his position that hashavat aveida constitutes the restoration of legally 'lost' items, rather than a general mission to protect the financial welfare of others.