Bava Metzia, Chapter 2, Mishnah 7. The Mishnah before us is divided into two parts: the first part deals with how to apply the giving of identifying marks in order to return a lost object, and the second part - which in the Gemara is considered a completely separate Mishnah - deals with the scope of the obligation to care for a found object.
The First Part - Giving Identifying Marks:
The Mishnah begins: "Amar es ha'aveidah velo amar simaneha, lo yiten lo" - if someone identifies the lost object but does not provide identifying marks for it, he should not give the lost object to him. The philosophical foundation behind this law is that the finder of a lost object becomes, by Torah law, a watchman for his fellow who lost his item, in order to return it to his hands. Therefore, handing the object over to anyone who claims "this is mine" is reckless and irresponsible.
It is not enough for the finder to announce "I found a shirt" and the other person replies "Indeed, I lost a shirt." Even if he announced "I found a garment" and the other replied "I lost a shirt," or if he added and noted "a white shirt" - this is not enough. The claimant must provide a specific identifying detail, and only then is it permissible to return the lost object to him. Otherwise, the finder turns out to be a poor watchman, having handed over a shirt belonging to someone else, rather than to its true owner.
All this applies to an ordinary person, but the Mishnah continues: "Veharamai, af al pi she'amar simaneha, lo yiten lo" - and a deceiver, even if he stated its identifying marks, he should not give it to him. Even if the requester provides a fairly accurate description - "a white shirt, a certain brand, size 16" - it should not be given to him. The reason is that we suspect he may have heard his neighbor lamenting that he lost his shirt, and since he knows the young man, he had previously peeked at the collar of the garment and learned the size, and now he comes to take for himself a shirt that is not his.
The Source of the Law in the Torah:
The proof for the obligation to receive identifying marks is from the verse in Deuteronomy 22:2: "Vehayah imcha ad drosh achicha oso" - and it shall be with you until your brother seeks it. In its simple sense, the meaning is that the object will remain with the finder until his brother comes and claims it. However, the Gemara challenges this: it is obvious that the object will remain with him until the other person comes and asks for it, for if not, how could he return it to him? Therefore, it explains that "seeks" (doresh) refers to the finder - he must examine and investigate the one claiming to have lost the object, to verify that it is indeed his. As the language of the Mishnah states: "Ad shetidrosh es achicha im ramai hu im eino ramai" - until you examine your brother to see whether he is a deceiver or whether he is not a deceiver. And when a person is presumed to be a deceiver, we suspect his intentions are malicious, and we do not give it to him.
The question is asked: in what way can a Jew who has acquired a bad reputation get his lost object back? Regarding this, two approaches are stated:
The Approach of the Rambam: He must bring two witnesses to confirm that the shirt belongs to him. This opinion is also brought in the Shulchan Aruch.
A Second Approach: If he provided definitive identifying marks (simanim muvhakim) - very specific marks, which testify that he is intimately familiar with the object and could not have learned them from someone else - this too is proof, and the lost object can be returned to him.
The Second Part - The Scope of the Obligation to Care for a Lost Object:
How far does the finder's obligation go in caring for the object? The active rule here is that the Torah obligates a person to invest his time and energy to return his fellow's lost object, but it does not obligate him to spend his own money on it. If it is a pen that was found, it is enough for it to be placed on a shelf. But what is the law for someone who finds a cow or a chicken? Must he feed the chicken for a full year until the owner comes and claims it?
To this, the Mishnah answers that the matter depends on the nature of the lost object:
"Kol davar she'oseh v'ochel" - An item that both 'does', meaning it generates income (a hen that lays eggs to be sold, or a cow that can plow a field and be hired out for a day's work), and also 'eats', meaning it incurs maintenance costs. The halachah is "ya'aseh v'yochel" - the finder must work it, hire it out, or milk the cow, and use the income received from the animal to pay for its food, so that it essentially pays for itself. According to one opinion, this applies for an entire year, at least twelve months.
"V'davar she'eino oseh v'ochel" - An item that does not generate profit but does incur expenses, such as a hen that does not lay eggs or a calf, which are not fit for labor and do not produce milk, and all that remains is to feed them. In such a case, "yimacher" - it should be sold, and the money is given to the one who lost it.
Why is this the proper procedure? Since the finder is allowed to receive reimbursement for all his expenses related to returning the lost item, this could lead to a distorted outcome. Suppose a hen is worth one hundred, and feeding it costs one per day. After a hundred days, the person who lost the hen would find himself in debt to the finder. When he comes to collect what is his, the finder will tell him, "You owe me money for your lost item" - and this is not appropriate. Therefore, it is preferable for the owner that the hen be sold immediately; the finder takes the money, deducts his expenses (if he fed it for thirty days - thirty), and returns the balance to the owner.
The source for this is: "Shene'emar: v'hasheivoto lo" - This is the end of the verse cited earlier. Simply understood, it means that when the loser comes to request his item, he should return it to him. However, the Mishnah expounds: "Re'eh eich teshivenu lo" - the finder must consider in advance exactly what he will return. Presenting the owner with a bill for guarding the hen does no one any favors. Therefore, he must look deeper and say: It is better that I sell it now, thereby minimizing the loss, and we will return the remainder to the owner.
"Mah yehei badamim":
The hen was sold, and the finder has a hundred in hand. Is he allowed to spend the money, or must he put it in an envelope and wait for the owner to arrive? The Tannaim dispute this:
Rabbi Tarfon omer: "Yishtamesh bahen" - He is permitted to use the money, "lefichach im avdu - chayav be'achrayutan" - therefore, if it is lost, he bears responsibility for it, and must repay it.
Rabbi Akiva omer: "Lo yishtamesh bahen" - He is forbidden to use the money, "lefichach im avdu - eino chayav be'achrayutan" - therefore, if it is lost, he does not bear responsibility for it.
The meaning of this dispute depends on another Amoraic dispute, between Rabbah and Rav Yosef. We generally avoid getting into these matters, but this point touches on an important fundamental principle in the laws of returning lost objects: While the lost item is in the finder's possession, is his status that of an unpaid watchman or a paid watchman?
We will discuss the laws of watchmen further along in the tractate, with God's help, but the fundamental difference is this:
Shomer chinam: Someone doing a favor for his friend. If a person goes on vacation and asks his friend to watch his animal until his return, the watchman is exempt even in cases of theft or loss. If the animal was stolen or lost, and when the owner returns he answers, "I do not know where it is," he is exempt, since an unpaid watchman is not liable for these types of payments.
Shomer sachar: Someone who takes payment for his guarding. Since the owner pays him to assume responsibility, he is liable for theft and loss.
Rabbah and Rav Yosef disagree whether the finder of a lost item has the status of an unpaid watchman or a paid watchman. At first glance, it would be simple to say that he is an unpaid watchman, as he is merely doing a favor for the person who lost the item. However, there is logic to say otherwise. First, the very fact that the Torah commands him to assume responsibility and return the item implies that God's will is for him to take upon himself an extra level of responsibility. Second, we find in the Gemara that one who is engaged in a mitzvah is exempt from another mitzvah. While he is preoccupied with locating the owner of the lost item, if a poor person asks him for charity, he can say, "I cannot deal with this right now, as I am engaged in another mitzvah," and he is exempt. It turns out that he has a certain financial benefit in that he is not required to give to the poor person while handling the lost item.
On the other hand, one can argue: How many times does it actually happen that a person is in the middle of returning a lost item and a poor person asks him for charity? In practice, there is no practical financial gain here. Hence the dispute whether the finder is an unpaid watchman or a paid watchman over the lost item.
Elevating the level of liability for the money:
Once the object is sold and the finder holds its money, the level of liability increases. According to the opinion that the finder is considered a paid watchman for the object itself, once he uses the money - as Rabbi Tarfon permits him to do - he is no longer merely a paid watchman who benefits from the money. Rather, his status becomes that of a borrower. A borrower is one who takes an object for his own use, and all the benefit is his. One who borrows a lawnmower from his friend bears full responsibility, and even in circumstances beyond his control - if it was struck by lightning or armed robbers came and stole it - he is obligated to pay, because the lender says to him: "I lent you the lawnmower, and I am not listening to excuses - return it to me."
Therefore, according to the view that the finder is a paid watchman, Rabbi Tarfon's meaning when he states, "Lefichach im avdu chayav beacharayusan" - therefore, if they are lost, he bears responsibility for them, is that he is liable even if the money was lost due to unavoidable circumstances beyond his control, since he has become a borrower. However, according to the second view, that the finder is an unpaid watchman, by using the money he only rises to the level of a paid watchman. According to this, his being responsible for them applies only when the money is lost in a normal manner, and not by unavoidable accident. The Bartenura explains this according to the first view.
The same applies to the words of Rabbi Akiva, who says that it is forbidden to use the money, and therefore if it is lost - he is not responsible for it. If the finder of a lost item is an unpaid watchman, since he is not permitted to use even the money, he remains at the level of an unpaid watchman and is completely exempt. However, if his status is that of a paid watchman, he remains a paid watchman, and is responsible if the money is lost in the manner of a lost item, and he is only exempt in a case of unavoidable accident, in circumstances beyond his control.
In summary: In this Mishnah we learned two matters. In its first part - that we do not return a lost item to someone who merely identifies it, but rather to someone who provides signs for it, whereas a deceiver does not receive it even with signs, but only with witnesses or distinct signs; and everything is learned from the verse, "Ad derosh achicha oso" - until your brother seeks it, which is expounded to mean, "Ad shedidrosh es achicha im ramai hu im eino ramai" - until you examine your brother whether he is a deceiver or not. In its second part - that something that works and eats should work and eat, and something that does not work and eat should be sold and he returns its money to the owners, as learned from the verse, "Vahasheivoso lo" - and you shall restore it to him, meaning, see how you shall restore it to him. Regarding the money, Rabbi Tarfon and Rabbi Akiva disagree, and their dispute hinges on the definition of a watchman of a lost item - whether he is an unpaid watchman or a paid watchman - and on the question of how far his responsibility extends.