Ask the Rabbi: Taking a Different Object than Lost | Rabbi Daniel Mann | Beit Midrash

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Question: I think I lost "air pods" on an Israeli bus, so I went to their lost and found to try to find them. They showed me a stash of dozens of them, but I did not find mine. They offered me to take an equivalent set, which is their policy because there are enough to go around for everyone who lost and comes for them. May I take someone else’s lost air pods?

Answer: While it is not simple to apply the gemara’s rules on when one is required to do hashavat aveida (returning lost objects, =hshav) to modern cases, it appears the Jewish bus company is obligated. Between the brand of air pods, the bus (or possibilities of buses) it was left on, and the date, there is enough of a siman.
Presumably, a clear majority of air pods in the stash were lost quite a while ago, and if their owners did not come to claim them yet, most of them are after yei’ush. This alone does not erase the bus company’s obligation to return them because yei’ush must precede the finder’s taking them (Bava Metzia 21b). However, Tosafot (Bava Kama 66a) posits that yei’ush has taken hold, just that the finder cannot remove the existing obligation of hshav. According to the simple understanding of Tosafot, that obligation is not transferred to you if you received them after yei’ush (see Kehillot Yaakov, Bava Metzia 25). While you should not facilitate the company’s abrogation of hshav, it should suffice for you if they have legitimate grounds (see below) to believe they have done all they need to.
However, there is another approach to the matter of yei’ush after the finder finds it. The Ramban (to ibid. 26a) and Ritva (to ibid. 21b) explain that the obligation of hshav makes the finder a shomer for the loser. Consequently, the object is considered in the loser’s possession, in which case we say that yei’ush has no impact. Accordingly, the yei’ush will not help regarding you either. Without bringing further analysis (see K’tzot Hachoshen 259:1; Imrei Moshe 37), it is difficult to justify taking the air pods based on the standard rules of yei’ush. We now look for other ideas.
We have discussed (see Living the Halachic Process III, I-12 & IV, I-4) that operators of venues who are concerned about being overburdened with lost objects can stipulate to those who frequent them how long they will hold onto them. This probably works based on mechila (relinquishing) of the right to hshav. It is proper to stipulate in an explicit manner so the losers will accept the provision. However, it is plausible that those who use a large transportation system realize that they have lost and found policies and implicitly accept them.

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This idea is augmented by other plausible grounds for leniency. While one is expected to exert himself to do hshav, he is not required to outlay money that will not be returned for it (Shulchan Aruch, Choshen Mishpat 265:1). Large bus companies often provide lost and found services that cost money (labor and space) as part of their customer service, and it is likely they are not required to do so (at least, for free). Therefore, if they agree to do so voluntarily, they should be able to set their own reasonable policies, even if their policy would not be halachically valid if they were fully obligated in hshav.
Finally, the idea of allowing people to essentially swap air pods (you can take Reuven’s and if Revuen asks for his, he can take Shimon’s) could possibly conform with the halacha for a case where it is not feasible or required (based on sheer volume) for the company to keep lost items forever. In some cases, it is permitted for the finder to sell the object and be prepared to give the proceeds to the loser (Shulchan Aruch, CM 267:23-25). While the policy you describe is different from that halacha, it seems primarily equivalent (i.e., there is a plan by which the loser will be compensated, likely to his satisfaction).
Therefore, for a combination of the grounds mentioned, we can justify the company’s policy as a win-win situation for almost all and allow you to take someone else’s lost object.

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