Lost in Shul

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Lost in Shul
or: What to do with all of those coats that get left behind

The Problem

As a personal mitzvah, hashavas aveidah (returning lost objects) is generally easily fulfilled, often entailing little more than waiting for the return of the visitor who left his coat behind or returning a dropped wallet dropped to its nearby owner. However, this all changes on a communal level, in synagogues, schools, camps and other public institutions where large numbers of objects, especially clothing, are often left behind. It is certainly possible to simply leave the objects where they are or in a designated “lost and found” location. However, this will often create a problem, as sufficient space or manpower may not exist to store or maintain these objects appropriately, possibly even compromising the institution’s ability to function smoothly.

Various solutions have been offered by leading poskim to address this common problem; this essay will attempt to address a number of them, pointing out the benefits and limitations of each. It should be noted that none of these poskim worked with the idea that the status of a shul is different from that of an individual and therefore the institution is not subject to this mitzvah.[1. However, it should be noted that in Responsa Minchas Yitzchak (8:146), Dayan Weiss did consider the possibility that the shul could acquire through kinyan chatzer.] This is because the obligation to return a lost object lies with the finder, not the owner of the location where the object is found. Each of these approaches will be presented, certain theoretical and practical questions pointed out and practical ramifications highlighted.

Before presenting these solutions, a brief introduction to the mitzvah of hashavas aveidah is in order. A key factor in determining whether there is an obligation to return any given lost object is whether ye’ush (the owner’s abandonment of hope of retrieving that object) has taken place; once he gives up hope of its return there is no longer a mitzvah of hashavas aveidah. However, in order for this act of ye’ush to have meaning in halachah it must take place prior to the object coming into the possession of the finder; once a person has found an object and the mitzvah is incumbent upon him, the only way to be relieved of his obligation is by returning the object. Therefore, in the common case in which money is lost in a public location, it is generally assumed that as soon as the owner realizes that he has lost money in such a location he immediately gives up hope of retrieving his lost money. However, if a person forgets an overcoat at a friend’s home, he expects it to be returned and therefore does not experience ye’ush.

Prevention By Posting A Sign

One increasingly common practice seen in recent years is the posting of signs in coat rooms announcing that objects left more than a certain amount of time (typically a month) will be deemed ownerless and/or will become property of the institution. It is assumed that having posted such a sign, the institution/finder will not be subject to any obligations, whether the coats are left in the coatroom or elsewhere.

Whether such a sign has value and validity in halachah is a most significant question. It is clear that a person cannot merely announce that he is unwilling to perform the mitzvah of hashavas aveidah any more than he can announce that he will not honor his parents. Generally, stipulations can only be established in transactions that are based on mutual consent, such as sales or contracts, but not on personal responsibilities. Addressing this concern, Rav Moshe Sternbuch[2. T’shuvos V’hanhagos 1:817.] explains that once such a sign is posted, by definition, everyone who utilizes the space of that institution accepts this condition and indeed has intent to transfer his lost property to the ownership of the institution. Accordingly, it is not the finder who is now refusing or stipulating that he will not do the mitzvah but the owner who is (willingly) relinquishing ownership.

This is far from a simple premise, since most people never think that they will leave their coats behind and, even if they do, hope and plan to retrieve them. Accordingly they likely never intend to cede their possessions, signs notwithstanding. This could then enter into the halachic category of “asmachta,” a promise or commitment that is stated with insufficient seriousness or commitment and is generally not binding.[3. Sanhedrin 24b; that passage employs this concept to explain why gambling debts may not be viewed as valid debts (Rashi and Tosafos s.v. kol, define parameters of asmachta). Also see Bava Metzi’a 74a where certain transactions are not deemed as binding due to the lack of commitment by one or both of the parties. See Mishneh Torah, Hilchos Mechirah 11:6.] This problem is compounded by the fact that as more and more institutions post such signs but do not attend to the matter in a timely manner, it becomes less likely that people will take the signs seriously enough to engender intent to cede their coats to the institution. [Clearly this last problem would be solved if these signs were acted upon and would no longer be viewed as a “bluff.”]

However, such a sign may still serve a useful role in remedying the problem. If a person is aware of the sign and realizes that he left his coat in the shul coatroom, the sign may cause him to have ye’ush if he now assumes (correctly or not) that he will not get his coat back. In cases where the owner of the coat knows that the warning is not actually followed or even when it is but he still hopes to return in time to retrieve his coat, this “strategy” may not be effective and the presence of the sign will likely not accomplish its goal.[4. It should be noted that at the end of this responsum, Rav Sternbuch writes that this would be binding even if a person did not see the sign because, without a doubt, all those who enter do so accepting the rules and regulations of the shul/mikvah. Even if he did not see the sign there is no question that had he seen it, accepting these rules would not have deterred him from entering. Whether a posek considers these assumptions compelling is one of the questions upon which the use of this approach would depend.]

Additionally, this would only work in places where signs are posted, such as coatrooms, but a tallis or siddur left in the shul itself would not be included in the sign placed in the coatroom. This problem could be readily solved by posting a sign at the entrance to the shul building but currently this is not commonly done.[5. Whether due to lack of awareness or the fact that such a sign may appear strange at the entrance to a public institution, even in communities where such signs are commonly placed in a coatroom, they are not placed at the entrance to a shul building or sanctuary.] However, since in most Shuls it is common for regular attendees to leave their tallis/tefillin/siddur for the next day or the next Shabbos, often keeping them there for extended periods, such a sign would be most out of place.[6. This idea would seem to have more utility in the beis midrash of a yeshiva which is cleaned each Friday or in a location used as a shul but with no core membership. Were such a sign posted in a shul where it is common to leave tallis/tefillin for extended times, this too might enter the category of asmachta, as it would not be viewed seriously.]

An alternative of the idea of transferring property after the passage of time would be posting a sign clearly indicating that items left beyond a certain date will be subject to a storage fee. This avoids the questions about the intent of the coat’s owner because this is a formal fee for the usage of the space and not subject to the whims or hopes of the one who has misplaced his coat.[7. The fact that in some cases this fee is not collected may be considered a lack of serious intent (asmachta), although in this particular case it may be understood that the owner of the property (the shul) may simply waive the fee as its administrators see fit, forgiving the debt.] The lost object, once its storage fee equals its cost, effectively becomes “sold” in exchange for the fees owed.[8. For more details on the selling of found objects, see the section on “Exchanging the Object for Money”.] Again, this would not seem to apply to objects commonly left and stored in the shul such as tallis and tefillin.

This idea is not commonly implemented in shuls, probably due to practical issues such as setting (reasonable) fees[9. While theoretically any fee could be set, to suggest a high storage fee when there is no real cost could well run into issue of ona’ah (price gouging) or asmachta (being simply unrealistic). Given that coats can cost hundreds of dollars, reasonable rental fees may not solve the problem until an extended period of time has passed, significantly limiting the application of this solution.] that at one time are both realistic and will also help address the problem. If there is a realistic place to employ this method it would seem to be for a summer camp where the object will be left there for ten months or longer, allowing a reasonable fee to add up to a significant sum during that extended period of time.[10. A possible problem with this application might be the fact that many campers are minors below Bar/Bas Mitzvah age and not capable of entering into a rental agreement.]

Even if one or both of these solutions are deemed acceptable in Halacha, they can only help for objects that are left behind after a sign has been posted; most commonly these issues only come to the fore (initially) after a significant collection of lost clothing has been amassed leading to this dilemma. Accordingly, it is important to have solutions that can work even when prior planning has not taken place.

Where There Are No (Meaningful) Signs

It is clear from the Talmud[11. Bava Metzi’a 23a; Mishneh Torah, Hilchos Gezeila V’Aveida 14:3.] that a lost object cannot become the property of the finder unless ye’ush occurred prior to the object coming into the finder’s hands. This would seem to preclude invoking ye’ush on a lost coat because people generally see the coat immediately, before the owner is even aware of the loss. However, Rav Yitzchak Yaakov Weiss[12. Responsa Minchas Yitzchak 8:146.] points out that this threshold is not reached when the finder first sees the lost object. Rather, the critical moment for ye’ush is when the obligation to return the object is first incumbent on the finder. That only occurs when the finder lifts the object, not when he merely spots it.[13. It should be noted that the prohibition of “lo suchal l’hisalem” (not to pretend that one has not seen the lost object) applies as soon as one spots the lost object but the formal obligation of returning the object does not begin until the finder has picked it up.] Accordingly, in a case where the coat is “safely” hanging in a coatroom there is no mitzvah on the “finder” to pick up the coat and search for the owner because the best way to return the coat in that case is to leave it in the coatroom in case the rightful owner returns.[14. This is unlike the case where a coat is left behind in a private home, where the obligation of hashavas aveidah sets in right away.] Given the reality that the shul generally does not deal with lost objects until after they have been left behind for a long time, it would be safe to assume that by the time that the shul deals with it, ye’ush has already taken place and the shul administration is free to dispose of the coat as it sees fit.

Despite having presented a detailed explanation as to why this approach should work, Rav Weiss himself hesitated to rule merely based on this halachah because there is significant debate among the earlier poskim regarding its specific application.[15. At the beginning of that same responsum, he too recommended posting a sign stating that the institution will only accept responsibility for lost items for a limited amount of time, after which the items will become the institution’s property. This, of course, would only help for the future which is why Dayan Weiss addressed these other alternatives for dealing with items left behind in the absence of a sign even though he found them less than fully satisfactory.] He only permitted this arrangement when funds are also set aside to replace the object if a claim is made, as described below.

Exchanging the Object For Money

Teaching about returning lost animals, the Talmud[16. Bava Metzi’a 28b; Choshen Mishpat 267:22.] distinguishes between those which “earn their keep” such as cows that give milk and hens that lay eggs, and others that cost to maintain but do not produce any tangible value. Regarding this second group it rules that after three days they should be sold and the money set aside for the owners; were this not done the cost of maintaining the animal would likely eclipse its value, rendering the entire concept of returning a lost object meaningless. Similarly, if one has found produce that will spoil in short order, he must sell it and set aside the cash for the owner.[17. Bava Metzi’a 38a; Mishneh Torah, Hilchos Gezeila V’Aveida 13:16.] The Shulchan Aruch extends this concept somewhat, ruling that one who finds tefillin may also set aside their cash value and keep them for himself. The Aruch HaShulchan[18. Choshen Mishpat 267:14.] understands this to mean that any object that is not unique (so that a person would not have an emotional connection to it, as opposed to personal jewelry like a wedding ring) and is easily replaced may be taken as one’s own provided that the full cost of its replacement is set aside.

Based on this halachah the entire problem of lost items in shul can be solved relatively easily. An inventory of all found items can be made (perhaps even including photos of the objects), and money set aside for payment of any claims. Of course if too many objects are found this can add up to a large sum of money, creating a new and potentially more difficult problem for the shul. However, since few such claims are likely to be made (as is evidenced by the fact that these coats remain unclaimed for years) it might not be necessary to set aside more than a rather token sum, or just to allocate funds on a budget line.[19. This would be similar to the idea mentioned in Minchas Yitzchak (8:146) and T’shuvos V’hanhagos (1:818), who each write that money should be placed in the hands of a Beis Din pending the return of the rightful owner. The board of a shul might well have this same status for purposes of hashavas aveidah, although given that they would be forced to pay in the event of a claim this role may need to be filled by a less involved party]

However, the Aruch Hashulchan‘s approach is not accepted by many of the classical poskim. Based on the words of the Rambam,[20. Mishneh Torah, Hilchos Gezeila V’Aveida 13:14.] both the Sema[21. Choshen Mishpat 267:30.] and the Chelkas M’chokek[22. Choshen Mishpat 267:16.] (the primary commentaries in Choshen Mishpat) reject this broad understanding, explaining that the case of the tefillin has an added factor: the halachic assumption that the owner is fundamentally pleased when his possessions are used by others to perform mitzvos. This factor along with the fact that tefillin are readily replaced combine to create this unique permission. Lacking either of these two factors, these poskim did not allow replacing other lost objects with money. So while these poskim would not allow the sale of articles of clothing found in a shul, they would presumably[23. I use the word “presumably” because it is nearly impossible to properly appraise the cost of tefillin without checking the scrolls inside them. Therefore, whatever value is assigned to the boxes will be a highly inaccurate appraisal. It is likely that such large differentials in price were not common in their day.

Additionally, the concept that every Jew is pleased to see his possessions used (even without his formal permission) for mitzvah purposes, while certainly correct regarding borrowing tallis/tefillin left in shul, may not be applicable to setting aside the money and keeping tefillin given the mindset we often see today. This is a question well beyond the purview of this article.] permit the sale of tefillin, tallis and siddurim that are left behind, solving a small portion of our problem.

Additionally, even these poskim ruled that the found object can be sold in cases where it will cause the finder a loss, such as a non-working animal or produce which will deteriorate. Accordingly, a good case could be made to say that if a significant amount of space will be needed to hold onto the large number of found objects, such that it will prevent the proper functioning of the institution,[24. This could include loss of a classroom used for learning or youth activities, or so much clutter in a coatroom that those attending the shul would not have a proper place to hang their coats and might be deterred from attending.] this might be considered the equivalent of a non-working animal or fruits that spoil. Therefore, all authorities would permit selling the coats.

At the end of that same responsum, Rav Weiss writes that he only felt comfortable permitting selling or taking the found object when money is set aside for a potential claim. As mentioned above, if there are a large number of coats this could create a difficult burden for a shul.[25. It should also be noted that part of his logic in permitting this practice is that these objects tend to deteriorate over time and are similar to perishable produce. While coats do indeed become dusty and perhaps soiled, it takes an extremely long time for significant damage to take place. Additionally if garments are properly covered with clear plastic as done by dry-cleaners this degradation could be substantially avoided.]

Rav Sternbuch[26. T’shuvos V’hanhagos 1:818. It should be noted that these two responsa are printed consecutively, with #817 being about public institutions and #818 about private people. At the very end of #817 he writes in parentheses “see our words below in #818.” Since there is no reason in halachah that this same solution should not be available to a shul, the likely explanation for addressing one of these solutions in reference to a shul and the other in reference to a private person is that posting a sign is only an option in a public institution and not a private home. At the same time it is also correct that according to his approach that the entire sum of money must be set aside, this is not a practical solution for a public institution.] also made this same suggestion but strikingly only regarding a private person but not for public institutions. While he did not explain why there should be any difference, presumably this is because a public institution would have to set aside significant amounts of money. [As mentioned above, a good case can be made that on a communal level money need not be set aside as long as the leadership of the institution has committed itself to such restitution].

Most significantly, Rav Sternbuch adds that when the object has been exchanged for money and is no longer in the finder’s possession, the criteria for identifying the object is by necessity lessened. Therefore, any claims of ownership must be accepted. However, thanks to technology this need not create an inordinate financial exposure for the shul or a private person. With quality digital photography so readily available it would be quite easy to keep careful records of all such objects, so that claims would still need to meet the normal criteria.

Hefker Beis Din Hefker[27. The following sign is posted at dry cleaning establishments in the State of NY: “In Accordance with New York State law garments not picked up within six months will be donated to charity.” This is mentioned here as this is quite parallel to the concept of Hefker Beis Din, as the state has used its authority to assign property rights.]

Not finding any of the above solutions fully satisfactory, Rav Hershel Schachter[28. Oral communication with the author, 2013.] has advised convening a Beis Din and declaring all lost objects hefker (ownerless). Once the lost objects have been declared ownerless the institution is then free to dispose of them as it sees fit. While this solution may seem rather radical, it is grounded on numerous passages in the Talmud which accord the power of reassigning assets to the Beis Din or to the Seven Elders of the City.[29. Gittin 36b.] In addition to this approach avoiding reliance on the acceptance of the owner or on the posting of a sign in a prominent location, or the right to exchange the object for cash, this approach also solves the problem of lost objects that belong to children.[30. When this was presented as a shiur some attendees argued that the parents never really transferred ownership of the clothes to the child, merely providing it for his/her use, as is often evidenced by the clothing’s use for younger siblings or being discarded when worn out. Another suggested that since younger children misplace so many possessions the very act of handing the object over to the child is the parent’s act of ye’ush. I question this second assumption because parents are generally distressed when their children misplace needed clothes.] Children cannot enter into contractual agreements nor are they capable of having ye’ush in the eyes of halachah. Therefore, some of the other proposals discussed do not work for children’s lost objects.

The potential problem with this solution is that this power to render items hefker is not generally utilized by a Beis Din in our day. It might only be available for a Beis Din of great stature,[31. Gittin 36b; Mishneh Torah, Hilchos Shmitah V’Yovel 9:17; Radvaz and Kesef Mishneh (ad loc.); Shulchan Aruch, CM 2:1.] particularly in cases that will result in a loss of money to one party and a gain to another. However, a closer examination shows that this limitation applies more to litigation and should not affect our case, as the Aruch HaShulchan[32. Choshen Mishpat 2:2.] writes: “And this power is only for great sages or for the elders of the community, as the elders of a community in their own community have the power of the great Sanhedrin, and in our day it is placed upon the rabbi and elders of the community to mend the breaches in Israel with all of their abilities and any obligations they impose on the community must be paid even if there is gain to one party and a loss to the other since it is done for the well-being of the community (Tikunei HaTzibbur) or to prevent violations (Migdar Milsa).” Our case of shuls and other institutions becoming cluttered with large amounts of found objects would certainly seem to fit into this category of Tikunei HaTzibbur mentioned by the Aruch HaShulchan.

In a typical American shul where there is both a rabbi and a board, it would seem that they would have this status. On a practical level, given that the board is most interested in resolving this dilemma, they typically turn to their rabbi for a halachic resolution. The rabbi would then inform them that he will convene a Beis Din for this purpose (explaining how it works). They would then assent to his proceeding with the Beis Din hearing. At this point the process would fit into the framework described by the Aruch HaShulchan, and applied to our case by Rav Schachter.

A Broader Application

Addressing this topic in the various ways detailed above not only enables a shul to clean out its coatroom, it also provides a unique opportunity. That opportunity has nothing to do with coats, scarves or even tefillin; it is about real life Torah. So much of the study of Talmud in yeshiva and more recently in Daf Yomi focuses on Seder Nezikin, all about the laws of property, the rights, obligations, and responsibilities as seen in the Torah and the teachings of our Sages. All too often this entire area of the Torah is viewed as an abstraction with little relevance or practical application. This discussion shows not only that Nezikin is part of daily Jewish living, but that its implementation in any given time and place requires a careful study and evaluation.

Hopefully this message can go beyond returning or discarding lost objects and can be extended to the many other areas of life where our responsibilities, ethics and morality stem directly from the laws found in Nezikin. This is important for the specific applications and obligations as well as the sensitivities to the rights and needs of others that are often lacking.
———

About Asher Bush

Rabbi Asher Bush is the rav of Congregation Ahavas Yisrael in Wesley Hills, NY and is a longtime member of the faculty at Frisch Yeshiva High School. He is the author of Responsa Sho’el B’Shlomo and serves as the Chairman of the Va’ad Halacha of the Rabbinical Council of America.

2 comments

  1. There is much that can be added to the discussion. Since some people don’t like my rhetoric I will just list by points without comment.

    1. R’ Moshe Feinstein’s teshuvot were not mentioned (Ch”M vol 2 s’ 45 and Or’ch vol 5 s’ 5). He says that one need not suspect that somebody did not see the sign. Although he does admit that if we know that person was a foreigner that sign would not help.
    2. R’ Nissim Karelitz is quoted as saying that although a sign is preferable if one was not put up the gabbai still has the right to do as he sees fit with things left their for an extended period of time even if no sign was put up. This is because everybody understands that when something is brought into a shul it is brought with the cognizance that the objects may only be brought under his permission which only allows that they be brought in for a short period (Hashvat Aveida Kihilchata p 79 ff 14). This argument is used every day in Jewish schools when things that should not have been brought in are confiscated or when things left over from last semester are disposed of.
    3. R’ Elyashiv is quoted as saying when one is unsure if yiush has occurred he may pick up the item with the condition that he not become a shomer and then wait a period of time until you are definitely sure that the owner was miyayesh and acquire it at that time (ibid p 64 ff 19, see also Pitchei Choshen in Hilchot Metzia vAveida 257 ff 23)
    I also doubt the applicability Asmachta to the situation discussed. Asmachta refers to obligating oneself beyond the normal measure in a situation where the condition is unsure to ever occur. Losing one’s coat as a penalty for leaving it too long is not excessive.

  2. 1. The author probably assumes that it is obvious that the shul will take all reasonable efforts to find the owner and will only make use of these devices if the shul’s efforts fail. It would be a good idea to say so explicitly.
    2. These devices may be necessary but they probably do have the effect of reducing the effort made to find the owner.
    3. Addressing hashavat aveidah by focusing on these devices risks the impression that Talmud study is more about minimizing one’s obligations rather than returning lost objects. Maybe we should have a practical discussion about what efforts a shul must make to fulfill the mitzvah of hashavat aveidah.

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