1) "MINHAG GARU'A" OR "LIFNIM MI'SHURAS HA'DIN?"
QUESTION: The Mishnah states that if customs officers took one's donkey and replaced it with a different donkey, or if thieves took one's clothing and replaced it with different clothing, the replacements now belong to him. This is because the original owner is assumed to have had Ye'ush; he despaired from ever receiving his property back, and thus someone else can acquire it.
The Gemara (in its second version) states that although the Mishnah says that the replacements belong to him, nevertheless if he wants to return them he should return them to the original owner. Even though Ye'ush alone enabled the second owner to acquire it, if he feels that "I cannot keep property which is not mine," he should return it to the original owner. RASHI (DH Im) explains that one who returns such objects is a pious person.
What is the purpose of returning such objects? Not only has the owner already had Ye'ush, but there was also Shinuy Reshus (the object moved from the domain of the first owner into someone else's domain, a factor which enables a second owner to acquire it). These two factors, Ye'ush and Shinuy Reshus, fully enable the new owner to acquire the object. Why is there any reason, even if he is a pious person, to return it?
(a) The REMA (CM 356:7) implies that the custom now is to return every stolen object, even after Ye'ush and Shinuy Reshus, because of Dina d'Malchusa (the law of the land). However, the SHACH writes that the Rema does not mean that this is the main reason to follow this practice. Rather, the Rema means "this is now the custom" among the Jewish people to return such objects, and this is why it is the law. Although one does not normally follow a "Minhag Garu'a" (inappropriate custom) which contradicts Torah law, nevertheless one should follow this custom because it was instituted by the people (i.e. scholars) of the generation. Moreover, it happens to be consistent with the law of the land as well. (It is not clear whether the Shach actually maintains that this is the true explanation of the Rema, or that the Rema's words merely are correct when interpreted in this fashion, although this might not have been the Rema's intent.)
(b) The KETZOS HA'CHOSHEN (CM 259:3) proves from the Gemara here that giving back an object, even after Ye'ush and Shinuy Reshus, is a praiseworthy act and certainly is not a "Minhag Garu'a." Such an act is similar to the conduct of the father of Shmuel, as related in Bava Metzia (24b). The father of Shmuel found donkeys in the desert, and he returned them to their owner twelve months after they had been lost, even though the owner had given up hope of ever finding them. He acted "Lifnim mi'Shuras ha'Din" (beyond the letter of the law), a form of conduct derived from the verse, "You should do what is upright and good in the eyes of Hash-m" (Devarim 6:18; see Tosfos to Bava Metzia 24b, DH Lifnim). The act of giving back stolen objects after Ye'ush and Shinuy Reshus certainly is included in "Lifnim mi'Shuras ha'Din." (D. BLOOM)
2) WHEN AN INNOCENT STATEMENT OF A WOMAN OR MINOR IS ACCEPTABLE TESTIMONY
QUESTION: The Mishnah (114a) discusses the law of a "Nechil," a swarm of bees, which became lost. If the original owner of the swarm had Ye'ush, the swarm belongs to the person whose domain the swarm entered. Rebbi Yochanan ben Berokah states that a woman or minor is believed to say that "this Nechil went out from here." He means that when the owner did not have Ye'ush, such testimony establishes that the swarm belongs to the original owner.
The Gemara (114b) questions Rebbi Yochanan ben Berokah's ruling. How can a woman or minor be believed if they are not valid witnesses? Rav Yehudah answers in the name of Shmuel that the Mishnah discusses a case in which the original owners are chasing the swarm of bees, and the woman or minor is "Mesi'ach Lefi Tumo" (they randomly mention in casual conversation what happened, and not as testimony in court).
RASHI (DH Meradfin) explains that the fact that the owner was chasing after the bees before the minor spoke is "Raglayim l'Davar" (acceptable circumstantial evidence) that the bees in fact belong to the person chasing them.
The Gemara quotes Rav Ashi who ruled that "Mesi'ach Lefi Tumo" is acceptable testimony only in cases of Edus Ishah, for the purpose of establishing that a woman's husband has died so that she may remarry. Ravina asks that the Mishnah here (according to the explanation of Rav Yehudah in the name of Shmuel) seems to contradict Rav Ashi, because it applies the concept of "Mesi'ach Lefi Tumo" to another case -- the case of the swarm of bees. The Gemara answers that the case of the swarm of bees is different, because the bees belong to their owner only mid'Rabanan.
RASHI (DH Kinyan) explains that mid'Oraisa the bees are ownerless. They belong to the person holding them only because of the Rabanan's enactment that they belong to the person in possession of them, an enactment made in order to prevent disputes about who owns the bees. (See TOSFOS YOM TOV, DH Nechil, and TIFERES YISROEL #13, who explains further why mid'Oraisa the bees do not belong to the person holding them.) Therefore, the Rabanan accept the "Mesi'ach Lefi Tumo" testimony of a minor in this case. The only matter of Torah law for which "Mesi'ach Lefi Tumo" testimony is acceptable is Edus Ishah, as Rav Ashi says.
Ravina's question on Rav Ashi is difficult to understand. Testimony which is "Mesi'ach Lefi Tumo" is accepted in cases of Edus Ishah unconditionally, without any accompanying qualifications. In contrast, the Gemara here states that "Mesi'ach Lefi Tumo" is sufficient testimony only when there is another factor which provides evidence about who owns the bees; the fact that the claimant is chasing after the swarm provides grounds to believe that the bees belong to him. What is Ravina's question on Rav Ashi? Rav Ashi ruled that only for Edus Ishah is "Mesi'ach Lefi Tumo" alone acceptable testimony, with no other supporting factors.
(a) The YAM SHEL SHLOMO (9:28, DH v'Yesh) answers that the additional condition -- that the owner is chasing after the swarm -- is necessary only when one does not know whether there was Ye'ush or not. The fact that the owner is chasing the swarm helps prove that there was no Ye'ush. However, if it was known that the owner did not have Ye'ush, the "Mesi'ach Lefi Tumo" testimony of the woman or minor is acceptable even if the owner is not chasing the swarm.
The MAHARSHAL writes that this answer seems to conflict with Rashi's explanation that the fact that the owner is chasing the swarm creates a situation of "Raglayim l'Davar" that the bees belong to him. However, the Maharshal suggests a way to reconcile the Yam Shel Shlomo's answer with the words of Rashi. Perhaps Rashi intends to explain merely how we know that there is no Ye'ush on the part of the owner. If the owner is presumed to have had Ye'ush, establishing that he was the previous owner would make no difference; the person in possession of the bees now may keep them. Rashi therefore explains that because he is chasing the swarm there is "Raglayim l'Davar" that it belongs to him and that he did not have Ye'ush. Therefore, the bees are not ownerless.
(b) The SHEV SHEMAITSA (7:10, DH u'Mevu'ar) answers that in fact Edus Ishah also contains a factor of "Raglayim l'Davar" no less powerful than the "Raglayim l'Davar" in the case of the owner chasing the bees. This is apparent from the Gemara in Yevamos (93b) which says that a woman is careful to verify that the testimony given that her husband has died is true before she remarries. This is because she knows that if she remarries on the basis of the testimony and afterwards her husband shows up alive, she will have to leave both men, and any children she bore from the second will be Mamzerim. Therefore, there is "Raglayim l'Davar" that if the wife is prepared to remarry on the basis of the testimony, the testimony must be true. Accordingly, it is only because of this "Raglayim l'Davar" that the "Mesi'ach Lefi Tumo" testimony of the woman or minor is accepted. This is the reason why Ravina asks a question on Rav Ashi based on the comparison between the testimony in the case of the swarm of bees and the testimony in the case of Edus Ishah. (D. BLOOM)