Halakhah for Bava Metzia 2:7

אָמַר אֶת הָאֲבֵדָה וְלֹא אָמַר סִימָנֶיהָ, לֹא יִתֶּן לוֹ. וְהָ רַמַּאי, אַף עַל פִּי שֶׁאָמַר סִימָנֶיהָ, לֹא יִתֶּן לוֹ, שֶׁנֶּאֱמַר (דברים כב) עַד דְּרשׁ אָחִיךָ אֹתוֹ, עַד שֶׁתִּדְרשׁ אֶת אָחִיךָ אִם רַמַּאי הוּא אִם אֵינוֹ רַמָּאי. כָּל דָּבָר שֶׁעוֹשֶׂה וְאוֹכֵל, יַעֲשֶׂה וְיֹאכַל. וְדָבָר שֶׁאֵין עוֹשֶׂה וְאוֹכֵל, יִמָּכֵר, שֶׁנֶּאֱמַר (שם) וַהֲשֵׁבֹתוֹ לוֹ, רְאֵה הֵיאַךְ תְּשִׁיבֶנּוּ לוֹ. מַה יְּהֵא בַדָּמִים. רַבִּי טַרְפוֹן אוֹמֵר, יִשְׁתַּמֵּשׁ בָּהֶן, לְפִיכָךְ אִם אָבְדוּ חַיָּב בְּאַחֲרָיוּתָן. רַבִּי עֲקִיבָא אוֹמֵר, לֹא יִשְׁתַּמֵּשׁ בָּהֶן, לְפִיכָךְ אִם אָבְדוּ אֵינוֹ חַיָּב בְּאַחֲרָיוּתָן:

If he named the lost object but not its simanim, it should not be returned to him. And if he is (known as) a deceiver, even if he does give its simanim, it should not be returned to him, it being written (Deuteronomy 22:2): "until you seek out your brother" — until you seek out your brother to determine whether or not he is a deceiver. Whatever (animal) works and eats [i.e., If the lost animal is one whose work is worth the cost of its food, such as an ox or an ass], let it work and eat [and let the finder not sell it. For everyone prefers his own beast, with which he is familiar and which he has trained to its will. And he (the finder) need not care for it forever, but for a hen and a large beast, twelve months; for grazing calves and foals (i.e., those which are not raised for fattening), and, likewise, for kids and lambs, three months. For fattening calves, thirty days; for small ganders and roosters, thirty days; for large ones, which eat a lot, three days. From that point on, he takes them for himself at their estimated cost, or sells them to others and holds onto the money.]; whatever does not work and eat, let it be sold, it being written (Ibid.): "Then you shall return it to him" — See how to return it to him. What is to be done with the money? R. Tarfon says: He may use it. Therefore, if it is lost, he must make restoration. [Since the rabbis permitted him to use it, even if he does not use it, it is as if he did, and he must make restoration. R. Akiva says: He may not use it. Therefore, if it is lost, he need not make restoration. [The halachah is in accordance with R. Tarfon vis-à-vis the money received for the sale of the lost object; but found money itself, as when he finds money in a pouch, or three coins one atop the other, may not be used at all.]

Gray Matter II

The Gemara (Bava Metzia 24b) relates that Mar Shmuel ruled that one “must” return a lost object if one positively knows the owner’s identity. Mar Shmuel based his ruling on lifnim mishurat hadin, whereas the strict letter of Torah law often entitles the finder to keep a lost item.⁶The Gemara devotes the second chapter of Bava Metzia to discussing when one may keep a lost item, when one should leave the item where it is, and when one must attempt to return it to its owner. The Rishonim debate the nature of Mar Shmuel’s insistence that one “must” act lifnim mishurat hadin.⁷The possibility of coercing to act lifnim mishurat hadin raises the question of how precisely lifnim mishurat hadin differs from the letter of the law if a Jew must comply with both. Rav Aharon Lichtenstein (Leaves of Faith 2:46-48) grapples with this question at length and argues, “Lifnim mishurat hadin is the sphere of contextual morality…. Guided by his polestar(s), the contextualist employs his moral sense to evaluate and intuit the best way of eliciting maximal good from the existential predicament confronting him.” The Mordechai (Bava Metzia 257) cites the Ra’avan and Ra’avyah, who assert that a beit din may coerce a litigant to act lifnim mishurat hadin provided that he can afford to do so. However, the Beit Yosef (Choshen Mishpat 12) notes that the Rosh (Bava Metzia 2:7) writes, “We do not coerce him to act this way, as we cannot coerce to act lifnim mishurat hadin.”

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