Innovating, Adapting, and Historicizing the Rules for Returning Lost Objects

The Mitzvah of השבת אבידה in the Torah

In the books of Exodus and Deuteronomy, the Torah mandates restoring lost property:

^{שמות כג:ד} כִּי תִפְגַּע שׁוֹר אֹיִבְךָ אוֹ חֲמֹרוֹ תֹּעֶה הָשֵׁב תְּשִׁיבֶנּוּ לוֹ.

^{Exod 23:4} If you meet your enemy’s ox or his donkey going astray, you shall surely return it to him.

^{דברים כב:א} לֹא תִרְאֶה אֶת שׁוֹר אָחִיךָ אוֹ אֶת שֵׂיוֹ נִדָּחִים וְהִתְעַלַּמְתָּ מֵהֶם  הָשֵׁב תְּשִׁיבֵם לְאָחִיךָ. ^כב:ב וְאִם לֹא קָרוֹב אָחִיךָ אֵלֶיךָ וְלֹא יְדַעְתּוֹ וַאֲסַפְתּוֹ אֶל תּוֹךְ בֵּיתֶךָ וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ וַהֲשֵׁבֹתוֹ לוֹ. ^כב:ג וְכֵן תַּעֲשֶׂה לַחֲמֹרוֹ וְכֵן תַּעֲשֶׂה לְשִׂמְלָתוֹ וְכֵן תַּעֲשֶׂה לְכָל אֲבֵדַת אָחִיךָ אֲשֶׁר תֹּאבַד מִמֶּנּוּ וּמְצָאתָהּ  לֹא תוּכַל לְהִתְעַלֵּם.

^{Deut 22:1} You should not see your brother’s ox or his sheep driven away, and hide yourself from them; you shall surely return them to your brother. ^22:2 And if your brother is not close to you and you know him not, then you should gather it into your house and it will be with you until your brother requires it and you shall return it to him. ^22:3 And so should you do with his donkey and so should you do with his garment, and so you should do with every lost thing of your brother’s that he has lost and you have found. You may not hide yourself.

The biblical requirement to return lost property is different from what many people today would conceive of as civil law, which focuses on preventing or compensating damages. To the modern ear, returning a lost object sounds more like a good deed than a legal obligation. Nevertheless, in the ancient Near East, returning lost objects was a relatively standard requirement, enshrined in various legal collections.^[1] In these collections, not returning lost objects was considered theft.

Two Rabbinic Developments

Finders Keepers: The Creation of “Found Property” as a Legal Category

The rabbinic laws of lost property build on the biblical legislation but recast them with different emphases. Already the first mishnah of the second chapter of tractate Bava Metzia, a chapter devoted to the laws of lost property, assumes a rule of “finders keepers.” The biblical laws never discuss the possibility that the finder would keep the object under any circumstance (although this may have been the practical outcome of finding an object whose owner is never located). In other words, in the Torah there is never “found” property in the sense of property that becomes the permanent possession of the finder, only “lost property,” namely property whose real owner is perpetually searching for it.

The rabbis’ concept of found property is encapsulated in a new Mishnaic Hebrew word for “finds” – metziot – that describes the possible right of people who discover unmarked lost objects to legally taken them.

The Invention of הכרזה  and the Process of Actively Searching for the Owners

A different rabbinic development balances out the “finders keepers” rule by helping original owners. While the Torah speaks merely of “gathering in” the stray until the original owner comes to seek its return (Deut 22:2), the rabbis require finders to actively announce the discovery of the property so that the owner has a better opportunity to recover it.

Both the rabbinic emphasis on “finds” and the new requirement to announce might be attributed to growing urbanization and late antique “industrialization.” Manufactured products without special identifying marks cannot be easily connected to a particular owner. Furthermore, as people lived in larger towns and did not know everyone in the town, and traveled regularly, it became necessary to announce any (identifiable) found object in some public forum.

Protocols for Announcing: A Tannaitic Debate

Rabbinic works depict this new obligation of “announcing” in different ways. The best-known source on the obligation of proclaiming appears in the second chapter of Mishnah Bava Metzia (2:6):

ועד מתי חיב להכריז? עד כדי שידעו בו שכניו – דברי רבי מאיר.

Until when is he obligated to proclaim [that he found a lost object]? “Until his neighbors know of it” – the words of R. Meir.

רבי יהודה אומר: שלש רגלים, ואחר הרגל האחרון שבעה ימים, כדי שילך לביתו שלשה ויחזר שלשה ויכריז יום אחד.

R. Yehudah says: “[He is obligated to proclaim for the] three pilgrimage festivals, and after the last pilgrimage festival seven days, so that he may go to his house – three days – and return – three days – and proclaim – one day.”

The Mishnah presents two opinions on the proper way to announce lost property. R. Meir’s approach is simple and straightforward: The finder announces the find until word of mouth gets out to neighbors, in the hope that eventually the original owner will hear that his property has been found. R. Yehudah presents a more specific protocol in which the place and time for announcing are interconnected. The finder must declare the lost property at the most central Jewish meeting place, the Jerusalem Temple, during each of the three festivals; presumably the original owner will hear the announcement when he fulfills his obligation to go on pilgrimage.

One way to conceive of these views is that R. Meir’s ruling is pragmatic while R. Yehudah’s is ideal. This is suggested by the historical fact that R. Yehudah lived in the second half of the second century CE after the Second Temple was destroyed!

A Historical Timeline: Not a Machloket!

A baraita recorded in the Tosefta (t. Bava Metzia 2:6) – an early third century tannaitic (early rabbinic) compilation – includes some of the same material as this Mishnah. This baraita is organized on an historical axis:

^א בראשונה היו מכריזין עליה ג’ רגלים ואחר הרגל האחרון ז’ ימים.

^A In the beginning they would proclaim it for the three pilgrimage festivals and after the last pilgrimage festival seven days.

^ב ומשחרב בית המקדש התקינו שיהו מכריזין עליה ל’ יום.

^B When the Temple was destroyed they enacted that they should proclaim for thirty days.

^ג ומן הסכנה ואילך התקינו שיהא מודיע לשכניו ולקרוביו ולמיודעיו ולאנשי עירו ודיו.

^C And from the [time of] danger and onward they enacted that he should inform his neighbors, relatives, acquaintances, and fellow townspeople and that would suffice.

As opposed to the Mishnah’s two views, this baraita notes three stages. Furthermore, it describes the different views not as concurrent, but as reflecting three distinct historical stages:

(A) The initial, ideal state (attributed in the Mishnah to R. Yehuda but unattributed in the baraita) involves announcing at the pilgrimage festival.

(B) This is followed by a new protocol of announcing for thirty days, which is supposed to reflect the realities following the destruction of the Temple, the cultic center where everyone would meet annually.

(C) The final protocol, which is the “pragmatic” opinion attributed in the Mishnah to R. Meir, is presented by the baraita anonymously.  It refers to even more difficult and dangerous times, possibly the period of the Hadrianic persecutions, when even normal activities like gathering publically would have been hazardous.

The Tosefta presents events that did indeed occur – the Temple was destroyed in 70, this was followed by the Bar Kochba revolt (132-135) and the Hadrianic persecution (135-138)—this was a “time of danger.”

The More Original Source of the Law: Mishnah or Tosefta?

But which formulation of the halacha is more original here—the “debate model” of the Mishnah or the “historical progression model” in the Tosefta?^[2]

Both the Mishnah and Tosefta are tannaitic compilations that collect earlier tannaitic statements.^[3] In this particular case, the Mishnah is likely the earlier source, which has been reworked by the Tosefta. Three pieces of evidence point to this reworking:

• The Mishnah offers its two rulings without additions, while the Tosefta, as its name suggests,^[4] adds a new (historical) framework in which the opinions seem reworked.

• The Tosefta’s second protocol of announcing for thirty days is not at all hinted at in the Mishnah, and it is hard to understand why the compiler of Mishnah, if he was later than the Tosefta, would have omitted it.

• Comparing the Toseftan manuscripts and versions of this line as quoted in the two Talmuds reveals textual variants that may signify lateness.^[5] (In general, texts stabilize after they are produced, so when there are variations in a text, this may mean that it is relatively late.)

A Parallel Reworking:  The Deceivers who Posed as Owners

The Tosefta’s placement of the laws of lost property on a historical axis, and relating them to new and greater dangers is found elsewhere, concerning “deceivers (רמאים)” who pose as the original property owner.  The Mishnah (2:7) states the rule of deceivers without any historical framework:

אמר את האבדה ולא אמר סימניה, לא יתן לו. והרמאי אף על פי שאמר סימניה, לא יתן לו, שנאמר (דברים כב, ב) עד דרש אחיך אתו, עד שתדרש את אחיך אם רמאי הוא אם אינו רמאי.

If he stated the lost property and not its identifying marks, [the finder] should not give it to him. And with a deceiver, even if he stated its identifying marks [the finder] should not give it to him, as it says: “Until your brother searches for it” – [which can be read as] until you search out your brother [to see] if he is a deceiver or not a deceiver.

The Tosefta again places the law into an historical framework (2:6):

בראשונה כל הבא ונותן סימניה היה נוטלה משרבו הרמאין התקינו שיהא זה נותן סימניה ומביא ראיה שאינו רמאי.

In the beginning, whoever came and gave identifying marks would take it (i.e., the lost property). When the deceivers increased, they established that he should give identifying signs and bring evidence that he is not a deceiver.

In both of these cases, the Tosefta is likely reworking its material by inserting, secondarily, an historical framework.  Thus, in both cases, it is prudent to be suspicious of the historical accuracy of its claims, and it is doubtful that the protocols for announcing changed on account of the Temple destruction and the Hadrianic persecutions. Yet even if the Tosefta’s historical claims are inaccurate, we should still take seriously its decision to present the announcing protocols as the result of problems and resistance.

I would like to suggest that the Tosefta presents these laws of property restoration as under attack because it is grappling with the challenges of trying to establish a set of idealistic rules, like those governing property restoration, in a complex world where the rabbis did not have the political power to enforce these rules or the confidence in the goodness of people to act honestly.

Bureaucratic Problems: The Bavli’s Reading of the Tosefta

The Tosefta passage we just examined also appears in the Bavli. Indeed, many of the baraitot quoted in the Bavli are also found in other rabbinic works, including the Yerushalmi and Tosefta. Not infrequently, the Bavli’s presentation of the baraita may reflect changes that took place as the text was transmitted from tannaitic Roman Palestine to amoraic (late rabbinic) Sasanian Babylonia.

The Babylonian Talmud’s version of and interpretation of this baraita (b. Bava Metzia 28b) presents evidence of other challenges that the rabbis experienced regarding the obligation to publically announce a find:

תנו רבנן: בראשונה כל מי שמוצא אבדה מכריז עליה שלשה רגלים ואחר רגל האחרון שבעת ימים כדי שילך לביתו שלשה ויחזור שלשה ויכריז יום אחד.

Our Rabbis taught: In the beginning, whoever would find lost property would proclaim it for the three pilgrimage festivals and after the last pilgrimage festival seven days so that he will go to his house [outside of Jerusalem] – three days – and return [to Jerusalem] – three days – and proclaim – one day.

משחרב בית המקדש התקינו שיהו מכריזין בבתי כנסיות ובבתי מדרשות. משרבו האנסין התקינו שיהא מודיע לשכניו ולמיודעיו ודיו.

When the Temple was destroyed they enacted that they should proclaim in the synagogues and study halls. When the oppressors increased they enacted that he should inform his neighbors and acquaintances and that would suffice.

מאי אנסין? דאמרי אבידתא למלכא.

What are “the oppressors”? That they say: “lost property – to the king!”

ר’ אסי  אשכח ארנקא  דדינרי. חזייה ההוא  רומא’  והוה  קא מחסס.  אמ’ ליה: שקול לדעתך!  לאו פרסאי אנן דאמרי אבדתא למלכא.

R. Assi^[6] found a moneybag of dinars. A Roman saw him and [R. Assi] was apprehensive. He said to him: “Take it for yourself! We are not Persians who say ‘lost property – to the king.’”

The Bavli’s presentation of the baraita contains a number of differences; the most significant is the substitution of the words “when the oppressors (אנסין) increased” for “from the time of danger (סכנה) and onward.”^[7] The Bavli asks about the meaning of the term, and answers that it refers to an imperial policy of seizure. This is then followed by an anecdote in which a Palestinian rabbi is assured by a Roman bystander that he should feel free to take a wallet he found in public, since the Romans who ruled over the Land of Israel “are not like the Persians who say ‘lost property to the king.’”

Public Gathering vs. Governmental Seizure

Unlike the last stage of the baraita in the Tosefta, which apparently refers to the dangerous Hadrianic persecution when people could not gather and publically announce the discovery of property, the Bavli is reading the Tosefta through the contemporary challenges of bureaucratically “oppressive” Sasanian Babylonia. Specifically, the Bavli is concerned about the bureaucratic problem of governmental seizure, and rewrites the third case accordingly. This would have presented a challenge to the rabbinic obligation of announcing, since the very public act that was supposed to get the property back to the original owner could ironically lead to the property being seized by the government and never returned.

Sasanian Rules of Lost Property

In recent years, Talmudists have become interested in relevant non-Jewish sources that have survived from the Sasanian Iranian Empire, where the Bavli was composed. A description of an elaborate Sasanian system of rules governing the restoration of lost property has survived, which to my knowledge is unparalleled in late antiquity in its scope by any treatment except for that of the rabbis, to which it bears certain similarities.

Both the rabbinic and Sasanian systems had technical methods for proving ownership via identifying marks (Hebrew סימן; Middle Persian daxšag), as well as a requirement to announce finds (Hebrew להכריז; Middle Persian srūdan). While this similarity was probably not the product of influence in one direction or the other (the rabbinic system is already found in the Mishnah which was almost certainly not influenced by Middle Persian law), the fact that the Babylonian rabbinic code existed alongside (and in a sense, underneath) the Sasanian system—and disagreed with it—may have led to some friction.   This friction would have been strongest concerning the Persian code’s obligation to report the discovery of lost animals to the town leader (deh sālār). Such reporting could easily lead to corruption or improper seizure, and was perceived by the rabbis as unjust and even oppressive.^[8]

Learning from Ahistorical Narratives

The narrative presented in the Bavli, like that in the Tosefta, is probably not historical.^[9] For one, R. Assi lived in the late third century, before the Roman legal position espoused by the bystander developed in the late fourth century.^[10] In addition, the story is likely a reworking of earlier material found in the Palestinian Talmud (b. Bava Metzia 2:4; 8).^[11]

Nevertheless, the Bavli’s story can still teach us something about the perspective of the people who composed it. At the time when it was told, rabbis must have believed that the Sasanian code of lost property infringed upon the rabbinic law.^[12] This led to a reinterpretation of a baraita to confront contemporary challenges, and it also inspired the creation of talmudic tales where the Roman occupiers of Palestine were depicted as less persecutory than their Persian counterparts.

Reworking Laws to Fit with the Times

Examining passages about these laws reveals how rabbinic texts adapted earlier material, reflecting anxiety about how best to pursue an ideal form of law like השבת אבידה in a less than perfect universe. It did so by creating new historical frameworks for different laws, thereby justifying new laws in an ever-changing world.