Much of the second perek of Bava Metzia deals with finding, identifying, caring for and returning lost objects. The eleventh Mishnah dealt with cases of conflict, where a number of lost items are found but only one can be recovered.
The first case is where one finds their own lost item and that of their father. The Mishnah rules that the person’s own object come first. Rav Yehuda in the name of Rav (33a) explains that this is based on the verse: “However, may there be no destitute among you…” (Devarim 15:4). Rashi explains that the Torah is cautioning that your property comes first in this case, otherwise you may become destitute. (The Gemara continues by warning that anyone that is too particular in keeping this pasuk will in the end fulfil it, i.e. become destitute).
The Mishnah continues by explaining that it is also the law when faced with the choice between recovering one’s own lost item and his Rav’s. The Mishnah then explains that if confronted with his Rav’s and his fathers, then unless his father is a talmid chacham then his Rav’s comes first. The Tanaim and the Rishonim debate the definition of one’s Rav and talmid chacham referred to in the Mishnah. We however will focus on the first case.
While the Mishnah ruled that one’s own lost object is recovered in preference one’s father’s, the Tifferet Yisrael however believe that this it not always the case. If the father instructed him to recover his lost object then his father’s comes first. The Gemara (32a) teaches that the honour of one’s parents is even to the extent that if the parent takes that child’s wallet and throws it in the sea in his presence, the child will not embarrass him and try to prevent the loss. The Tifferet Yisrael infers that in this case, since it is not just that a loss is being incurred, but the father is set to gain, if the father asked his son to recover his lost item then his father’s item comes first.
The Tifferet Yisrael however sites a different answer based on the Tosfot commenting on our Gemara. The Tosfot ask that priorities become circular in the following case. What is the law if kavod of the father is in conflict with both recovering the son’s own lost item and recovering his Rav’s lost item. As outlined above kavod overrides his own property. However his Rav’s lost item overrides his father’s, yet his own lost item overrides his Rav’s. Citing the Ri, the Tosfot (Kiddushin 32a) answer that his own item would still take precedence. This is because one is only obligated to suffer a loss for his parent’s honour if the benefit comes directly from that loss. Using the example from Kidushin, the father achieves some sort of satisfaction from casting the wallet aside. Or using the example from Tosfothere, if the father says slaughter your animal for me, then he would be obligated. In this case however, no direct benefit is being gained from the son abandoning his item. According to the Tosfotthen, in our case where there is a choice between his own item and his father’s, even if the father asked him to find his lost object, his own item would come first.
The Maharit questions the Tosfot’s thinking. The Gemara (Avoda Zara 23a) records the case of Dama ben Netina who refused to wake his father in order to retrieve the keys thereby preventing his access to precious stones. This is despite the fact that they were needed for the effod and the buyers were will to pay an inflated price. The case of Dama ben Netina is held up as prime example of honouring one’s parents. Since the benefit was not a direct result of the loss, then according to the Tosftot, Dama ben Netina should have been able to wake his father.
The Maharit (Kiddushin 32a) provides two answers. The first is that in the case of Dama ben Netina, he was not suffering a loss; he was simply prevented from making a profit. In such a case, kavod comes first. The second answer is that while one need not suffer a loss at the expensive of kavod if it is not directly related, this does not mean that one can cause pain and disgrace. That would have undoubtedly been the result in the case of Dama ben Netina.
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