When the Torah discusses returning lost objects it states as follows:
You must do the same to a donkey, a garment (simla), or anything else that your brother loses and you find. You must not ignore it.
The Mishnah (2:5) asks:
The simla was [already] included, so why was it singled out? To compare all things to it, teaching that just as a garment is distinguished in that it has identifying marks (simanim) and it has claimants, so too any [lost object] that has identifying marks and has claimant must be announced (in order to find the owner).
From the above Mishnah it would seem that Torah is teaching us that we must return the object to person that provides the relevant simanim.
However this is the exact question of the Gemara (Bava Metzia 27a) – is the reliance on simanim biblical or rabbinic?7
The Ramban asks, if simanim were rabbinic then why would anyone ever be required to return a lost object? The Ramban and Ritva explain that the question of simanim does not apply to unusual or rare simanim (“simanim muvhakim”) for they clearly work on a biblical level.8 The Rashba and Ran add that such detailed simanim are equivalent to witness testimony and a pasuk is not required to support it. The question of the Gemara rather applies to regular simanim.
A number of attempts at answering this question are made, yet the matter is left unresolved. When our Mishnah is cited as a potential proof that simanim are biblical, it is rejected. The Gemara explains that the focus of the Mishnah may be that when an object has claimants the object must be returned; i.e. the owners have not given up hope at finding the object (me’ya’esh). The point about simanim may have only been included “incidentally”. What does this suggestion mean?
Rashi explains that the “incidental” inclusion could have been to associate the rabbinic decree with the pasuk. Alternatively the Tosfot explain that even if simanim alone are rabbinic it is important for the other biblical criteria stated in the Mishnah – yi’ush. In others words, if an item has simanim it is indicative that the owner will not have given up hope.
Perhaps with this understanding we can explain in greater detail a Gemara from Eiruvin (54b). There the Gemara states: “Rav Chisda says, the Torah is only acquired (kone) through simanim”. Rashi explains that this refers to the abbreviated symbols that are used in order to aid in committing learning to memory. The Maharsha explains that these simanim are vital to ensure a true kinyan banefesh so that Torah will not be forgotten.
Perhaps we can offer another insight. If one learns Torah to the level that he can at provide simanim then this is at least indicative that there is no yi’ush – he has not given up hope. If however he learns and revises his Torah with intensity such that he can provide simanim muvhakin, then he has witness testimony that he has a kinyan on Torah – it is undoubtedly his.
7 The Gemara explains that the practical difference would be whether one can return a get based on simanim. If simanim is rabbinic, then they have the power to introduce this enactment in monetary laws, however for prohibitory laws (issurim) they could not.
8 See the Kesef Mishnah (Gezeilah Ve’Aveida 13:3) that brings a similar distinction between simanim muvhakin and simanim muvhakin be’yoter when explaining an apparent contradiction in the Rambam in Hilchot Gezeilah Ve’Aveida and Hilchot Gittin.
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