With the start of the second perek, we began learning about hashavat aveidah – returning a lost object. The Mishnayot discuss when a object is considered ownerless and may be kept, when a object must be taken and efforts made to identify the owner and when a object must be left and not touched. The Mishnayot also discuss what are considered identifying marks of a lost object and the obligations placed on the person who found the object while he is trying to locate its owner.
The eighth Mishnah mentions an interesting exemption (2:8):
If he finds a bag, box or anything that he usually would not carry, he leaves it there.
The Gemara explains that, by way of example, this refers to a zaken for who it would be beneath his honour to retrieve such an object and is therefore allowed to leave it there.9 The measure provided is if it were his own object, would he leave the object due to the potential slight on his kavod.
Who is this “zaken”? Why do we have such a novel exemption from a Torah mitzvah for the sake of “honour”?
The Ritva (Shavuot 30b) explains that this is referring to an elderly chacham who has more than just his own personal honour at stake; there is also kavod ha’Torah. He explains therefore if it was only a elderly respectable or wealthy gentleman, then the mitzvah of hashavat aveidah takes preference.10
The Rambam (Gezeilah ve’Aveidah ) however rules that this exemption also applies to an elderly respectable gentlemen (“zaken mechubad”).11 The Shulchan Aruch (263:3) uses the same language implying that by hashavat aveidah we have a unique exemption that applies if fulfilling the mitzvah conflicts with the personal kavod.
Is one nevertheless allowed to forgo his own kavod and return the lost object? The Rambam () rules that “someone who walks in the straight and good way should act beyond the strict law and nevertheless return the object…” In other words, even though the Torah does not demand the zaken to return the object, it is nevertheless a good and proper course to take.
The Rosh however writes that once the Torah exempts one from the mitzvah he is prohibited from degrading kavod ha’Torah. If he wants to act beyond the letter of the law, he must still leave the object and may volunteer to compensate his friend for the money he lost.
The Beit Yosef explains that Rambam may nevertheless feel that returning the object, even though it is beneath him, is not a slight on kavod ha’Torah. Quite the reverse! Kavod shamayim is indeed increased in that the person wants to assist his friend despite its appearing beneath him.
But what if kavod ha’Torah is not at stake? The Aruch HaShulchan explains that in such a case everyone would agree that the personal kavod may certainly be set aside.
When addressing the question of whether one can nonetheless return the lost object the Rama writes that “some argue that it is nonetheless forbidden to return [the object] since it is beneath his kavod…”. From a simple reading, the Rama does not appear to differentiate between personal kavod and kavod ha’Torah.12
One could suggest that perhaps the Rama rules that one may even be prohibited to forgo his personal kavod. Why?
The Tosfot, when explaining when kavod ha’bri’ut does or does not override mitzvot cites the case in Gemara Brachot. There the Gemara explains that if one finds himself wearing kilayim in the market place he must remove his clothing there and then because he is considered as actively transgressing the prohibition. The Tosfot explains if was not considered as actively transgressing the prohibition then kavod ha’bri’ut would override the mitzvah. He explains, citing Yevamot, that “there is nothing more repulsive to Hashem than one walking naked in the market place”.
We can perhaps glean from this Tosfot that the Rama may hold that there are some situations, some matters of honour that are not subject to desires of the person. There are basic matters of self respect, as a human being, one cannot forgo.
9 The Gemara (30a) explains that this exemption is learnt from the word in pasuk “v’hitalamta”. The Gemara understands that even though ordinarily it is forbidden to ignore or pass by a lost object, there are indeed some situations where one is permitted to do so. That case is the one referred to is where it is beneath the honour of the zaken to retrieve such an object.
10 This is also the opinion of the Ramban.
11 This is also the opinion of the Nimukei Yosef (Bava Metzia 19b in the )
12 The Be’er Heitev does associate the Rama with the Rosh and ties it kavod ha’Torah.
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