1) WHAT THE MISHNAH LEARNS FROM "SIMLAH"
QUESTION: The Mishnah derives from the verse (Devarim 22:3) which singles out a "Simlah," a cloak, as a lost item which must be returned, that just as a Simlah -- which has "Simanim" and "Tov'im" (people who claim it as theirs) -- must be returned, so, too, any object that has Simanim and Tov'im must be returned.
What does the Mishnah mean when it says that a Simlah has "Tov'im," people who claim it?
RASHI explains that a Simlah is an object whose owner is not known to have despaired of retrieving it. Why is it obvious that a Simlah always has Tov'im? Rashi explains that a cloak is manmade and is not an object of Hefker. Hence, it obviously belongs to someone and did not come from Hefker.
How does this logic prove that the owner was not Me'ya'esh from the cloak? Perhaps it had an owner, as Rashi explains, but then the owner was Me'ya'esh from it after he lost it. (Rishonim)
(a) Apparently, Rashi understands that the Limud from "Simlah" is based on the Torah's choice to mention an object that cannot come from Hefker as an example of an Aveidah. The Mishnah understands that the Torah is referring specifically to a Simlah that is found before Ye'ush, when the owner still has ownership of it. If the Torah would have given an example of an object that could have originated from Hefker, one might have understood that the owner's Ye'ush does not affect the finder's obligation to return a lost object.
According to this understanding, the Mishnah does not quote the verse as a source that Ye'ush is considered like Hefker. Apparently, that is known from another source. Rather, the Mishnah proves that if the owner was Mafkir the object or Me'ya'esh from it after he lost it, there is no obligation to return it. This is consistent with Rashi's comments in Bava Kama (66a, DH Motzei), where he writes that the source for Ye'ush is the Beraisa that discusses the case of "Shatfah Nahar" (22b). Rashi's source for this is the Yerushalmi, cited by TOSFOS (end of DH Mah).
(b) The RA'AVAD (cited by the Shitah Mekubetzes) explains that a person normally is not Me'ya'esh from a personal item such as an article of clothing. Therefore, the Mishnah derives from the paradigm of Simlah, a cloak, that one is obligated to return only an Aveidah from which the owner was not Me'ya'esh.
(c) TOSFOS (DH Mah) explains the Mishnah differently. According to Tosfos, when the Mishnah states that a Simlah has Simanim and Tov'im, it refers to a single feature of a Simlah. The Mishnah means that because a Simlah has Simanim, therefore the owner will seek it out and will not be Me'ya'esh. That is, the existence of "Tov'im" is a result of the Simanim. If the object has no Simanim, it need not be returned because the owner probably had Ye'ush. Tosfos adds that this is true not only if Simanim are d'Oraisa, but even if Simanim are d'Rabanan. Even if Simanim are d'Rabanan, a person hopes to retrieve his lost object only when it has a Siman, because the Siman enables him to procure witnesses who can testify that he owns it (which is the only way, mid'Oraisa, for him to retrieve his lost object). In order to find such witnesses, the owner will have to identify the object to them with its Simanim. Moreover, even before he brings witnesses, the owner can determine that his object was found (and that there is a reason to exert himself to find witnesses) only if he first describes it to the finder by its Simanim (since, otherwise, the finder will not show it to him).
Tosfos proves that even according to the opinion that Simanim are not d'Oraisa that the Simanim cause the owner not to despair, since the Rabanan would otherwise assume that the owner is Me'ya'esh even on an Aveidah with a Siman. If Simanim are not accepted by the Torah, then the owner can prove his ownership only if he brings witnesses, and no one relies on finding witnesses to prove that an Aveidah is his. (Otherwise, a person would not be Me'ya'esh even on an Aveidah that has no Siman.) Since the Halachah clearly states that one who finds an object with a Siman must return it, it is clear that the owner is assumed to rely on the Siman and does not have Ye'ush.
The RAMBAN adds that when an object has a Siman, it is possible for the owner to identify it with a Siman Muvhak, which is certainly d'Oraisa (for the owner can explain in great detail exactly where the Siman is and what it looks like). If it has no Siman, then it certainly does not have a Siman Muvhak.
The Gemara later (27b) attempts to prove from the Mishnah that Simanim are d'Oraisa. According to Tosfos, however, the Mishnah mentions Simanim only as the factor that causes the owner not to have Ye'ush. The Mishnah does not seem to attribute any intrinsic significance to Simanim. What, then, is the Gemara's attempted proof?
Apparently, the inference is from the fact that the Mishnah does not say explicitly that because of Simanim, the object has Tov'im. The most straightforward reading of the Mishnah (which is unlike the interpretation of Tosfos) implies that Simanim are d'Oraisa. The Gemara rejects the proof, however, and explains that the Mishnah uses this wording only as an "Asmachta" for the Halachah d'Rabanan of Simanim; the main point of the verse, however, is that the owner is not Me'ya'esh because a Simlah normally has Simanim.
(d) The RAMBAN and RITVA cite a Tosefta (2:5) which states that "Simlah" teaches that the value of a lost object must be at least a Perutah in order for the finder to be obligated to return it. This might be what the Mishnah means when it says that a lost object, like a Simlah, must have Tov'im. A person will try to claim an object only when it has some monetary value.
The Gemara, however, cites a Beraisa which derives the Halachah of Shaveh Perutah from a different source. The Tana Kama derives it from "Asher Tovad" (Devarim 22:3), and Rebbi Yehudah derives it from "u'Matzasah." Neither opinion seems to be in agreement with the Tosefta.
The Ritva explains that the Gemara is in agreement with the Tosefta. The Beraisa quotes a Derashah from "Asher Tovad" (or "u'Matzasah") because those words refer to the "Simlah" mentioned earlier in the verse. Both Derashos are necessary. The Derashah from "Simlah" alone might have been understood to convey a different Halachah, such as the Halachah of Simanim. Therefore, the Derashah from the end of the verse is needed to indicate that it refers to the Halachah of Shaveh Perutah. The Derashah of "Asher Tovad" or "u'Matzasah," on the other hand, might have been understood as a Ribuy that obligates the finder to return an object worth less than a Perutah. Thus, the Derashah from Simlah is needed to indicate that it is actually a Mi'ut that excludes such an object from the obligation.
Alternatively, the Tosefta may have a third source for the Halachah that one need not return an object worth less than a Perutah, and this third source argues with the Tana Kama and Rebbi Yehudah who derive the law from "Asher Tovad" or from "u'Matzasah."
According to Rashi, the Tosefta may be reconciled easily with the Mishnah. Rashi understands that the word "Simlah" teaches that if the owner is Mafkir an object after he loses it, the finder is not required to return it. Hence, the Derashah from "Simlah" also teaches that when a person loses an object worth less than a Perutah, the finder is not required to return it. Since a person does not attach value to objects worth less than a Perutah (see Sanhedrin 55a), the owner certainly is Mafkir it even if it has a Siman.
2) IDENTIFYING AN OBJECT BASED ON ADJACENT OBJECTS
QUESTION: The Gemara teaches that the identity of a dead person cannot be determined based on the Simanim of his clothing, even if Simanim are d'Oraisa, because of the concern that the clothing might have been borrowed from someone else. Nevertheless, a person who lost a donkey may claim it based only on the Simanim of the donkey's saddle, because people never borrow donkey saddles. The Gemara quotes a Beraisa that states that when a Get is found tied to a wallet or to a signet ring, or it is found among a person's utensils in his home, it may be returned to the owner of the object to which it is attached. The Halachah assumes that the owner of the Get is the owner of the wallet, ring, or utensils. The Gemara asks, in light of its previous argument, why the Beraisa says that the Get may be returned. Why are the Rabanan not concerned that perhaps the owner of the wallet lent it to someone else, who then tied a Get to it and forgot about it? The Gemara answers that people do not lend out their wallets and rings; they do not lend wallets because it is an omen of misfortune to lend them out, and they do not lend signet rings because they could be used by the borrowers to forge a signature. It therefore may be assumed that the Get belongs to the owner of the wallet or signet ring.
The Beraisa, however, also teaches that a Get is returned when it is found among one's personal utensils in his home, because the utensils belong to the owner of the house. The same question seems to apply to that case as well. Why are the Rabanan not concerned that the owner may have lent a utensil to someone who put a Get in it and then returned it but did not remove the Get? After all, the Gemara earlier states that a body cannot be identified based on the clothing ("Kelim") on it, because the clothing might be borrowed. (RASHI, Yevamos 120b)
(a) RASHI in Yevamos (120b) answers that the "Kelim" that may not be used to determine the identity of a corpse are the clothing that are on the corpse. In contrast, the "Kelim" that may be used to identify the owner of a Get are personal containers of the type that a person normally does not lend to others. This is the answer that most Rishonim here give.
(b) The RASH MI'SHANTZ (cited by the Shitah Mekubetzes) answers that the Get that was found among Kelim was not found in the Kelim or attached to the Kelim, but it was found next to the Kelim. Therefore, it makes no difference if the Kelim were lent to someone else; the Get clearly was not brought back with the Kelim.
3) TRUSTING THE PERSON WHO DESCRIBES THE "SIMANIM" OF A LOST OBJECT
QUESTIONS: The Gemara suggests that a lost object may not be returned to a person who describes the Simanim of another object to which it is attached, if that second object is something that people normally lend to others. It is possible that the owner of the second object lent it to the owner of the first object, who then lost both objects. Therefore, even though the claimant knows the Simanim of the second object, this is not sufficient proof that the first object also belongs to him.
(a) If the Rabanan consider this possibility (that an object might have been lent out) to be a valid concern, then how can any lost object ever be returned to a person who knows its Simanim? Perhaps the claimant once borrowed the object, and that is how he knows its Simanim. Furthermore, a finder should never be required to return an object to a person who describes its Simanim, since it is possible that that person owned the object at some time in the past but has since sold it. Just as Simanim do not prove that the claimant is the owner -- and not a borrower -- of the object, they also should not prove that the claimant is the object's current owner.
(b) The Gemara explains that a lost donkey is returned based on the Simanim of its saddle only because people do not lend out donkey saddles. How can this be reconciled with the Mishnah earlier (24b) which states that lost fruits are returned based on the Simanim of the container in which the fruits are found? In that case as well it is possible that the owner lent his container to someone else and the borrower put fruit inside and then lost the container.
(a) There are two approaches in the Rishonim to answer these questions. (See RAMBAN.)
1. When a person claims to be the owner of an object and is able to give its Simanim, the finder does not need to be concerned that he may have sold the object; a person who has proof that he owned something in the past is assumed to be the owner now (he has a Chazakah). (Although the Gemara (28a) mentions a case in which the Rabanan are concerned that the person who gives an object's Simanim may have sold it, that concern exists only when the other claimant brings witnesses who testify that he lost the object.)
With regard to the possibility that the claimant may be aware of the Simanim only because he once borrowed the object, since a borrower normally does not hold on to an object long enough to memorize its Simanim (see Chagigah 22b), the Rabanan do not consider that to be a concern.
2. The RAMBAN and other Rishonim suggest a second answer. If a person sold an object and the buyer lost it, the seller probably would not be aware that the object was lost and attempt to reclaim it from the finder. Similarly, if a person once borrowed an object that was subsequently lost by its owner, the borrower probably would not be aware that it was lost. Therefore, there is no reason to suspect that a person who attempts to claim a lost object is really a previous owner or borrower of the object. In contrast, if a person lent his donkey saddle to someone else who then lost the donkey and the saddle, the borrower would have had to tell the lender how his saddle was lost. Consequently, a lender would be aware that his saddle and the borrower's donkey were lost together. It is therefore reasonable to suspect that a person who attempts to claim a donkey with the Simanim of its saddle is actually the owner of the saddle but not the owner of the donkey.
(b) With regard to the fruits that are returned based on the Siman of the vessel, all the Rishonim explain that this law is an enactment of the Rabanan. Although such containers are commonly lent out and the claimant therefore should not be entitled to the fruits inside them, the Rabanan nevertheless decreed that a finder should return a lost object based on the Simanim of another object to which it is attached or inside which it is found. This enactment was made for the benefit of the owners, and it is similar to the general Halachah that a lost object is returned based on Simanim, according to the opinion that Simanim are d'Rabanan. When the Gemara discusses the concern that the accompanying object might have been borrowed, it does so only with regard to returning a Get, which is subject to the more stringent d'Oraisa requirements, and with regard to the Beraisa (27a) which implies that the Din d'Oraisa is that a donkey should be returned based on the Simanim of the saddle. (See TOSFOS to 20b, DH Matza, and Rishonim here.)
The Acharonim question this approach. The ONEG YOM TOV (Even ha'Ezer 135) asks that this idea is not consistent with the logic behind the general requirement to return an object with Simanim. According to the view that Simanim are d'Rabanan, the Gemara explains that an Aveidah may be returned based on Simanim only because the owner would agree to this arrangement. The owner would reason that even if someone else falsely identifies the object with average Simanim, he will be able to give a better Siman and retrieve it (see TOSFOS DH v'Ana). This logic, however, would not apply to the Simanim of another object attached to the first, or to the case of fruits found inside a vessel. The owner of the fruits would not want them to be returned to a person who can provide the Simanim of the vessel, because if the container is borrowed its owner would be more familiar with its Simanim. Thus, the fruits could be claimed unjustly by the owner of the vessel.
The TUMIM (CM 65:12) and CHASAM SOFER (EH 1:95) raise another question. The Mishnah earlier (20a) teaches that when one finds a Shtar inside a container he may return the Shtar to a person who can describe the Simanim of the container. This seems to be the same law that applies to fruit found in a vessel. However, it is not possible to interpret this law as a Takanah d'Rabanan. The Gemara states that when a number of Shtaros are found wrapped together or three Shtaros are found that have the same borrower (or the same lender), the Rabanan do not apply even the regular Takanah of Simanim, since the borrower would not agree for his Shtar to be returned to the lender. Based on the same logic, it is not possible that the Rabanan made a Takanah to return a Shtar based on the Simanim of the vessel in which it was found. Since the Shtar might belong to the borrower and he would not agree that it be returned to the lender, the Rabanan would not make such a Takanah. This seems to disprove the approach of the Rishonim.
The questions of the Acharonim, however, are based on the general rules of returning an object based on its own Simanim. Perhaps there is a difference between returning an object based on its own Simanim and returning an object based on the Simanim of another object. The owner of a lost object would be more reluctant to allow it to be returned to anyone who is familiar with its own Simanim, since any person in the world can approach the finder and describe certain standard Simanim that are common to most objects of that type. In contrast, an owner would be less reluctant to allow his object to be returned to a person familiar with the Simanim of an accompanying object, since there is only one other person who might be able to claim it: the person who owns the accompanying object.
Moreover, when an object has Simanim, even if the Rabanan would not allow it to be returned based on its Simanim, the owner would still be able to claim the object if he brings witnesses who can testify that he owns it (if he can find such witnesses). The Gemara here, however, discusses an object which has no Simanim of its own; that is why the claimant must rely on the Simanim of an object attached to it. Even if, mid'Oraisa, a person can claim an object only with witnesses, if the object has no Simanim he will be Me'ya'esh and he will not be able to claim it (as explained earlier; see Insights to 27a). Therefore, the owner would agree to have the object returned to whoever describes the Simanim of the object attached to it; otherwise, it would be impossible for him to retrieve it.
This answers the question of the Oneg Yom Tov. Although the Gemara explains that the owner of a lost object can present a better claim than a false claimant who is able to describe its Simanim, that logic is needed only to explain why the owner would agree for his object to be returned based on its own Simanim. On the other hand, an owner would always agree for his object to be returned based on the Simanim of another object, because that also represents a gain for him; if not for that Halachah, he would never be able to retrieve his object.
The question of the Tumim (from the case of a Shtar that was found inside of a vessel) may be answered as follows. Perhaps the borrower would also want the Shtar to be returned to the claimant, because he would also benefit in a similar case. The borrower himself may lend money to someone else, in which case he would want to be able to retrieve his own Shtar in this way if he were to lose it. Thus, every borrower would agree to the existence of such a law because it might benefit him at a different time, when he becomes a lender. Why, then, does the Gemara state that a borrower would not want a Shtar to be returned based on its own Simanim? If the Shtar itself has Simanim, the borrower would prefer that the lender not be able to retrieve it based on its Simanim. Since there is a way to retrieve a Shtar that has Simanim (i.e. with witnesses), the borrower would not be concerned that he may one day be unable to retrieve a lost Shtar of his own. If a Shtar has no Simanim of its own, however, the only possible way for the owner to retrieve it would be to provide the Simanim of another object found with it. The owner will not be able to bring witnesses who can testify that the object is his, because an owner can find such witnesses only if he can describe the Simanim of the object to them. In such a case, a borrower would prefer for the Halachah to allow the lender to retrieve the Shtar so that he himself will not suffer a complete loss in a similar case.
Alternatively, although the Gemara originally suggests that the Mishnah which allows a Shtar to be returned based on a Siman must maintain that Simanim are d'Oraisa, the Gemara later allows for the possibility that Simanim are only d'Rabanan. The Rishonim explain how to reconcile the Mishnah with that opinion. Their answers can also be applied to the Tumim's question. (M. KORNFELD)
The SHACH (CM 65:26) argues with all of the Rishonim and suggests another way to explain the Mishnah which permits one to return a Shtar based on the Siman of its container. He explains that the case of a lost donkey that was found with a saddle is a case in which the finder announces that he found a saddle and a donkey. In that case, the Gemara says that if saddles were objects that were commonly lent to others, then the person who claims the saddle with Simanim would not be able to claim the donkey. The Mishnah, however, refers to a case in which the finder announces only that he found a Shtar and the person who attempts to claim it volunteers the information that the Shtar was found in a container. That person will be able to retrieve the Shtar when he gives the Simanim of the container, because in such a case there is no concern that the container may have been borrowed.
The Shach further suggests that the container might be a type of container that is normally not lent out to others.