SALT - Sunday, 8 Elul 5779 - September 8, 2019

  • Rav David Silverberg
            The Torah in Parashat Ki-Teitzei (22:1-3) presents the mitzva of hashavat aveida – returning lost objects to their owner.  If a person happens to see an object which somebody appears to have lost, he must pick up the item and keep it until it can be returned to its rightful owner.  The Torah formulates this command by stating that one should not “ignore” (“ve-hit’alamta…lo tukhal le-hit’aleim”) the item, but should rather take the time to return it to its owner.
            The Gemara in Masekhet Bava Metzia (30a) famously infers from the Torah’s formulation that although generally one is forbidden from “ignoring” somebody else’s lost object which he finds, there are occasions when he is allowed to “ignore” it.  One such case is that of a kohen who sees an object in a cemetery.  As it is forbidden for a kohen to enter a cemetery, he is absolved from the requirement to return the object to its owner.  The more surprising instance where “ignoring” is permitted is the case of “zakein ve-eino lefi khevodo” – if a distinguished person finds an object which would be beneath his dignity to carry in public.  If it would be dishonorable for the person to bring the object to his home until it can be returned to its owner, he is exempt from the mitzva of hashavat aveida.  The Gemara explains that the distinguished individual must determine whether the indignity he would experience is such that had this been his own object, he would leave it and not retrieve it, despite the financial loss entailed.  If this would have been his decision had it been his object, then he is exempt from the obligation to return the item to its owner.  This halakha is codified by the Shulchan Arukh (C.M. 263:1).
            The Rishonim debate the question of whether it is admirable for the person of distinction in such a case to extend beyond the call of duty and return the object despite his exemption.  The Rambam, in Hilkhot Gezeila Va-aveida (11:17), writes that one who “follows the good, straight path” should take the object to fulfill the mitzva even if being seen with such an item is beneath his dignity.  The Rosh (Bava Metzia 2:21), by contrast, ruled that it is forbidden for this individual to compromise his dignity for the sake of returning the object.  The Shulchan Arukh (C.M. 263:3) follows the Rambam’s view, whereas the Rama brings the opposing view of the Rosh.
            A number of Acharonim raised the question of how to reconcile the Rosh’s opinion with the well-established rule that “rav she-machal al kevodo, kevodo machul” – a Torah scholar is allowed to waive the honor due to him by virtue of his stature (Kiddushin 32b).  Although people are obligated to treat a scholar with respect, the scholar himself is permitted to decline the displays of respect, in which case the people are absolved of this obligation.  Why, then, does the Rosh forbid a scholar from returning a lost object in the case of “eino lefi khevodo”?
            The simple answer, suggested already by the Perisha (C.M. 272), is that Halakha distinguishes in this regard between foregoing on special expressions of respect, and actual degradation.  A scholar may, for example, waive the honor of having people rise out of respect for him, but this does not mean – at least according to the view of the Rosh – that he is permitted to act in a way which brings him dishonor, such as walking around with a dirty trash can to return it to its honor.
            The Rosh writes that if the person of distinction in such a case wishes to extend beyond the strict call of duty, he should pay the object’s owner out of his own pocket the value of the item.  Since his stature of distinction in effect caused the owner to lose the item, he can compensate the owner for this loss by paying him.  This option is based on the story told in the Gemara (Bava Metzia 30b) of Rabbi Yishmael, who paid the owner for a lost item which he did not return because of his distinguished stature.  The Rosh understood that Rabbi Yishmael was not permitted to compromise his dignity to return the object, and so, in his desire to compensate the owner, he chose to pay for the lost item.
            Interestingly, the Beit Yosef points to this story of Rabbi Yishmael as a possible proof for the Rambam’s view, allowing a distinguished person to compromise his dignity for the sake of hashavat aveida.  Rav Yitzchak Blazer, in his Peri Yitzchak (56), explained that in the view of the Beit Yosef (explaining the Rambam’s position), once Halakha forbids – and not merely exempts – a distinguished person from returning a lost object, the person has no reason to compensate the owner, even as a measure of piety.  If Halakha tells this prominent figure that he must not compromise his dignity for the sake of returning the object, he is entirely dissociated from this entire matter, and so even on the level of lifnim mi-shurat ha-din (beyond the strict letter of the law), there is no compensation to speak of.  And thus the fact that Rabbi Yishmael paid the owner out of pocket might have indicated to the Rambam that a distinguished person is permitted to return the object at the expense of his honor if he wishes.