Parashat Ki Tetzei

Deuteronomy 21:10–25:19

August 21, 2010 / 11 Elul 5770

This week's commentary was written by Rabbi Daniel S. Nevins, Pearl Resnick Dean of The Rabbinical School and dean of the Division of Religious Leadership, JTS.

Few sights are as pathetic as the mountain of lost items accumulated at a summer camp or school at the end of the season. Clothes that once were valuable to their owners (or at least, to their parents) now lie dirty and discarded in a noisome heap that no one wants to touch. Perhaps in the premodern world, where people stayed put and personal effort was required to manufacture each item, fewer things got lost. Perhaps not. Our Torah portion devotes three verses to the requirement to return lost property (20:1–3), expanding on a parallel passage in Exodus (23:4–5). Our ancestors often owned walking property—livestock that grazed out in the commons and was apt to wander off. Things would get lost, and the Torah commanded Israel to return property to its owner.

The Rabbis called this mitzvah hashavat aveidah (the return of lost objects) and they developed a detailed system to analyze the extent of responsibility. To start, how can you tell that an item is lost? They offer a commonsense standard: if you find a cow grazing in a field, don't assume that the owner is unaware. But if you find a donkey with its saddle bags dislodged and dragging behind, or a cow trampling an orchard, assume that the animal is lost, and go help out (Midrash Sifre Devarim 222).

At what point does the finder become responsible for the lost item? In the Talmud, the Rabbis consider a maximal standard (re'iah: from the moment the item is visible) and a minimal standard (pegiah: from the moment it is touched) before settling on an intermediate measure—266 cubits, about 160 yards away. How far must the finder travel to return another person's property? (Remember, they did not have the option of phoning the owner or shipping the item COD.) How often and for how long should the finder announce the item's recovery? How detailed should the description be? These questions and many more are addressed in Tractate Bava Metzia.

The Rabbis consider psychological aspects of the return of lost property, such as the point at which an owner can be assumed to have given up hope of recovery. The crucial factor is the presence or absence of identification marks (simanim). If I lose a book with my name and address recorded within, there is a chance that it will be found and returned to me even many years hence. If I lose a twenty-dollar bill on the sidewalk in Times Square, there is no chance that it will be recognized as mine and returned. And then, of course, there are ambiguous cases—an item that is not perfectly identified, yet is unusual enough that it might be recognized as mine. In such cases I would probably maintain hope for a few days or even weeks, but then give it up for lost. The rabbis call this state of despair yei-ush. I think of this word as an instance of onomatopoeia—yei-ush is the sound a person makes when exhaling with despair, metaphorically releasing their last hope in a literal release of breath rushing past clenched teeth. If the finder can establish that the owner must have abandoned hope, then instead of returning the object, she may keep it for herself.

The Rabbis were also attentive to the social context of the finder and the property, noting that it could be embarrassing to return a found object to its owner. Imagine that the lost item is a goat that is grazing on your front yard, and that you are an elderly scholar. Returning the goat means running after it to capture the nimble beast and then dragging it across town to its owner. The Rabbis recognize that sometimes this is too much to ask. They reverse the plain meaning of the text—"you shall not ignore it"—and claim that sometimes, you may ignore an item if it will be too costly (in social or financial currency) to return. Human dignity was so great a concern that it could trump the biblical demand to return property.

Finally, the Torah recognizes human nature—we are happy to help our friends and look out for their property, but the Torah warns us to do the same for our enemies. Indeed, the Rabbis say that one must give priority to returning the property of our enemies. In an audacious mode, the Rabbis say that the Torah's entire purpose is to "subdue the evil inclination" (Bava Metzia 32b). I like to think that they were concerned not only with taming the petty instincts of a person who finds lost property, but also with restoring good relations between people who had been enemies. In this sense, the "lost possession" is friendship, and the commandment is to turn an enemy back into a brother.

"Lost property" is a concrete concept that is amenable to abstraction. What is the most valuable property of the Jewish people? Is it not the Torah itself, which is called "the inheritance of Jacob's congregation" (Deut. 33:5)? The Torah, which belongs to all of us, is nevertheless a lost inheritance for most Jews. An ancient story about Rabbi Yannai makes this point—if you meet a Jew who knows nothing of the tradition, do not mock him, but become his teacher (Vayikra Rabba 9:3). The Hasidic author Sefat Emet said that every day a heavenly voice announces that a valuable lost object—the Torah—has been found and is waiting to be claimed (Ki Tetzei for 5661). He finds a nice hint of this in the verse "until your brother comes to seek it (drosh)." On Shabbat, the Jewish soul remembers that it is missing something, and it goes to seek (drosh) the Torah and study it (drash).

I believe that this mitzvah of returning lost property is the ultimate task of every teacher and student of Torah. The Jewish People is well familiar with popular culture, but the vast majority of our people are clueless about their lost treasure. Our duty is to announce the clues—the simanim—that mark this possession as valuable. Our job is to show our fellow Jews that the Torah does not belong to some scholarly elite, but that it is theirs to enjoy, to learn from, and to reclaim.

The publication and distribution of the JTS Commentary are made possible by a generous grant from Rita Dee and Harold (z"l) Hassenfeld.