Hashavat Aveida (I)

 

One of the central 'ethical laws' which shape the world of bein adam la-chaveiro is the mitzva of hashavat aveida - returning lost items.  The Torah describes the mitzva in two locations (Shemot 23 and Devarim 34), with the more elaborate description appearing in Sefer Devarim.  Conceivably, returning lost items became far more complex with the transition from a centralized desert encampment to a more scattered national experience.  It was therefore necessary to highlight the mitzva prior to entering Eretz Yisrael.  Indeed, many halakhot stated in the gemara to facilitate the restoration of lost items seem incompatible with a society which has grown so dramatically.  Great care must be taken to update the world of hashavat aveida to the modern context.

 

     In terms of the actual mitzva, one issue seems to constantly resurface: Should the mitzva be defined as pertaining to the actual item and its restoration, or should the mitzva revolve around the original owner and his potential financial loss?  Although this question is reminiscent of the general 'gavra vs. cheftza' issue, it has a unique role and a particular centrality within the world of hashavat aveida.  What type of mitzva did the Torah envision, and what kind of law did it legislate?  Does it encourage us to respond to the financial vulnerability of the original owner and endeavor to protect those endangered interests? Or, is the mitzva defined, more specifically, as focused upon the actual item?  Since an item has been dislocated from its original owner, that item (which clearly belongs to someone else) must be relocated.

 

     One interesting consequence of this question might be the scope of the mitzva.  Can the actual mitzva apply in cases in which there is no dislocated item, but another Jew's interests are endangered?  The gemara appears to apply the mitzva in such a case when it rules (Bava Metzia 31a) that the mitzva applies to a situation in which water threatens someone else's field.  The mitzva of hashavat aveida would then obligate one to protect that field by diverting the waters.  In this instance, it seems, no item has been dislocated from the physical possession of the owner and been relocated into another person's receivership.  Yet, the gemara nevertheless asserts the applicability of the mitzva in this situation, possibly affirming the mitzva as a person-based responsibility to address financial vulnerabilities.  The Minchat Chinukh (578) was troubled by this gemara and altered the simple reading.  Although the actual mitzva of hashavat aveida cannot apply to this circumstance (since no object has been lost and recovered), the gemara applies to this case the prohibition of 'lo tukhal le-hitalem.'  Aside from the actual obligation to restore lost items, the Torah legislates a prohibition against ignoring opportunities for hashavat aveida by literally or figuratively 'looking the other way.'  Though in most instances the obligation and the prohibition overlap, there might be several scenarios in which one applies and the other does not.  According to the Minchat Chinukh, aveidat karka (threatened land) constitutes such a case.  Although the mitzva cannot apply, since no item has been physically dislocated, the prohibition against ignoring the danger does. 

 

     A second gemara which seems to conclude in favor of a mitzva even when no object has been dislocated, appears in Sanhedrin (73a) and Bava Kama (81b) - gemarot which classify the mitzva to save a life under the category of hashavat aveida.  By repeating a verb to return items in a more general syntax - "va-hasheivoto lo" (Devarim 22;2), the Torah extends the mitzva to include even saving lives.  In fact, the Rambam, in his commentary to the mishna (Nedarim 4;4), infers from these gemarot that the obligation of a doctor to heal a patient stems from the mitzva of hashavat aveida.  These gemarot and the logical extension of the Rambam both suggest a 'person-based' view of the mitzva; the mitzva applies even without a specific dislocated item which must be restored. 

 

However, there is some uncertainty about the position of the Rambam and the Shulchan Arukh regarding this clause.  Both the Rambam (Hilkhot Rotzei'ach U-shemirat Nefesh, Perek 1) and Shulchan Arukh (Choshen Mishpat 427) omit this pasuk when citing the responsibility to save another's life.  This omission suggests that the gemara's conclusion is not necessarily accepted universally (even though the Rambam's comments in his commentary to the mishna in Nedarim DO suggest agreement with this principle).  Furthermore, even if we adopt the gemara's position, we might still question whether this clause is reflective of the general definition of hashavat aveida.  By deriving the mitzva to save a life from an extra term in the parasha of hashavat aveida, does the gemara intend that such behavior is an INTEGRATED part of the miztva? Or, does the gemara merely intend that the extra term (stated within the parasha of hashavat aveida) dictates a SEPARATE mitzva to save human lives?

 

     This ambiguity is latent within the aforementioned gemara in Sanhedrin (73a).  The gemara actually questions the need for this derasha inasmuch as we are already obligated to save lives based upon a different pasuk – "Lo ta'amod al dam rei'ekha."  The gemara replies that the pasuk of lo ta'amod merely obligates us to make personal efforts to save lives, but not necessarily to invest money toward this cause.  The second obligation of va-hasheivoto lo dictates that we must also spend money.  By referring to saving lives within the parasha of hashavat aveida – a mitzva which normally entails spending money – the Torah legislated that lives must be saved even at personal, financial expense. Given that lo ta'amod already establishes a baseline mitzva toward saving lives, is the second derasha of va-hasheivoto lo merely updating and extending the scope of lo ta'amod (to include financial expenditure)? If so, then the act of saving a life might not be legally included within the category of hashavat aveida, but would fall solely within the framework of lo ta'amod.  The reference of va-hashevoto merely extends the scope of the mitzva of lo ta'amod.  Or, is saving a life actually considered a form of hashavat aveida, and the expanded scope is merely a consequence of the text that saving lives falls into two partially overlapping categories - lo ta'amod and hashavat aveida? 

 

     The Maharshal (in his comments to Choshen Mishpat 426) poses an interesting consequence of this issue: Would an elderly person be obligated to save a life?  Since an elderly person is excused from the narrow mitzva of hashavat aveida, he might be similarly exempt from saving a life - which presumably is a derivative of this mitzva.  His premise is obvious: saving lives falls clearly within the category of hashavat aveida and is therefore subject to its internal laws and even its exemptions.  To be sure, the Maharshal is faced with a separate concern: even though the elderly should be exempt from the obligation of hashavat aveida, they might not be exempt from the obligation of lo ta'amod.  Our inquiry surrounded the question of whether saving lives is also included within hashavat aveida; it was taken as a given that the obligation stems from lo ta'amod.  Perhaps the question might be rephrased as follows: Would an elderly person be obligated to spend money to save a life.  Being that the obligation to spend money stems from the hashavat aveida aspect of saving lives, perhaps an elderly person would be exempt.  The basic obligation to save a life - without personal expense - which stems from the pasuk of lo ta'amod would inevitably apply to a zaken as well.  See the Maharshal's discussion for a fuller elaboration on this question.