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Wednesday, May 26, 2010

FINDERS, BUT NOT KEEPERS

“Can I keep him, Mom? He followed me home and he’s real friendly. It won’t be any trouble; I promise! I’ll take care of him. Can I keep him; can I?”

Confronted by a pleading child and a cute, tail-wagging puppy a parent must remain rational. There is more than meets the eye when this domestic drama emerges.

“You know that there is probably some worried little boy or girl wondering if their pet is okay. They love him too! And he is really a part of their family. We need to try to find his real home. For now you can take care of him while we try to find his owners. But just remember, when we find his owners you have to be brave and give him back.”

As a parent you might admire your child’s passion. Their concern and enthusiasm is not to be dismissed. This scenario, however, presents a variety of ethical considerations. Until you can find the puppy’s home you become the caretakers and there are some costs associated with that. How do you manage the balance between welcoming this cute puppy into your home and exercising your objective duty to simply serve as temporary caretakers?

Finding something of value that needs to be returned changes you. It creates a relationship between you and the person who lost the object. It is not unusual to read news reports of objects, often wedding rings, returned to their owner’s years after they are lost. For example: Boy Digs Up Long Lost Wedding Rings in Yard - wbztv.com. The finder needed to expend time and energy to find the rightful owner. The mother of the 3-year old in the story above connected with the woman who had lost the rings. She says, “I explained to her that my 3-year old son was digging outside and possibly found something that belonged to her. And she was like 'you're kidding me. Those were my rings I lost over thirty years ago.' It was amazing. I just got chills talking about it. It's amazing."

The Torah reminds us that we have an obligation to return lost objects of all kinds:
You shall not see your brother’s ox or donkey go astray and turn away; you must return them to your brother… and so shall you do for his clothing, and so for every lost object which he has lost and you have found. You must not turn away. (Deuteronomy 22:1-3)
While the Torah states our obligation, it remains for the Mishnah to provide the details.

Mishnah Baba Metzia 2:7 offers two examples of how to fulfill this obligation when you find a lost animal.
Any [lost animal] which is capable of work and which requires food can be used for labor and must be fed. And if it is not capable of work but requires food, it can be sold, since torah teaches, “you must return it to him.” Pay attention to how to return it.

The mishnah seeks to balance two competing needs. As much as you have an obligation to see after the well-being of the animal, the owner (when found) bears the obligation to repay you for the costs incurred caring for his possession.

As long as the animal is in your possession you have an obligation to care for its well-being. That can add up. In addition to the simple needs of providing food, a stray animal might require a visit to a vet if there are injuries or other concerns. The simple good deed of holding on to a lost animal for a few days can get expensive.

That is why the mishnah allows one who finds a working animal to use his labor. The animal can pay his own upkeep. (Does a found puppy earn its keep as it entertains your children?) When it works, there are no significant extra costs incurred by the finder and the one who lost the animal can retrieve his property without needing to pay a large penalty.

Which leads to the second case in the mishnah (And if it is not capable of work but requires food, it can be sold), which sounds so harsh. If you found a lost animal, would you look to sell it on the open market? When you look under the “lost and found” category on Craigslist you will not find items listed for sale.

What happens, the Mishnah wonders, if the care you provide for a lost animal exceeds its objective worth? What if you have spent a lot of money for food and materials by the time you find the owner, but the total amount is more than the animal is worth? What if the owners respond that they don’t have the expendable cash to repay that amount for an animal they can replace for free from the shelter? Recognizing that there may be an objective value for this animal the Mishnah allows the finder to sell it so he can return a full value to the owner, rather than run up an unreasonable bill that will need to be paid. In real life I would find it a difficult decision to sell someone else’s possession and convince them it was in their own interest for me to do so.

Dealing with lost animals is only once instance of this rule, of course. The mishnah (Baba Metzia 2:1-2) details objects that must be returned because they have distinguishing marks, such as wedding rings, and objects with no identifying marks, such as coins, that do not need to be returned.

None of this is obvious. The common wisdom, “finder-keepers, losers-weepers,” suggests any lost object is fair game, but ignores the truth embedded in the Torah that the loser is our brother. A relationship exists between the one who finds and the one who loses. The one who finds a lost puppy can imagine the sorrow of the one who lost their pet. Since the Torah recognizes the implicit relationship that exists between finder and loser, it teaches we have a positive obligation to return lost objects.

PS. For a longer, more legal look at this principle, look at this related article:
Jewish Law - Articles - Finders Keepers? First Impressions ...

© 2010 Rabbi Louis Rieser

Monday, May 17, 2010

It doesn't have to be a "finders keepers losers weepers" world / Baba Metzia 58b

My husband lost his iPod at the airport in Dan Diego several months ago. It was returned within 10 minutes, even before he knew it was missing. The finder turned on the iPod, found my husband’s name and cell phone number, and called him. This is the ideal: a finder who is scrupulously honest, and a claimant who can easily identify his lost property because of its distinctive characteristics. But in truth there is much room for lies and deception in the matter of lost articles, and Mishnah seeks to find the limit to responsibility and the boundary for presumption of deception.
But first, Torah tells us it should not be a “finders keepers losers weepers” universe: If you see your fellow’s ox or sheep gone astray, do not ignore it; you must take it back to your fellow If your fellow does not live near you and you do not know who he is, you shall bring it home and it shall remain with you until your fellow claims it; then you shall give it back to him. You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find: you must not remain indifferent. (Deuteronomy 22:1-3)
Torah is trying to build a societal culture of consideration in which people go out of their way to take care of one another as they would want others to do for them. But how much is it reasonable to require, and at what point is so much required that people are unwilling to comply? Mishnah seeks to examine those boundaries, and in so doing reveals the inherent danger of our assumptions about human nature.

The first half of Mishnah Baba Metzia 2:7 is found on daf 28b:
If [the claimant] said what the lost article is, but did not [describe] its identifying marks, it should not be given [to the claimant]. If he is a deceiver, even if he says what the identifying marks are, it should not be given to him, as it is written, until your fellow claims it (Deuteronomy 22:2)[meaning] “until you examine your fellow [to determine] whether or not he is a deceiver.”
If I stand out in the middle of the town square to proclaim that I have found a lost article, what should I say? Should I simple say, “I found something!” and wait to see who lost it? Should I say what I found? If I say what I found, should I describe identifying marks (e.g., “I found pitcher’s mitt with a red stain on the inside near the thumb” or “I found a Nokia cell phone with a neon-orange cover”) or should I simply say, “I found a pitcher’s mitt” or “I found a cell phone” and require the claimant to provide details – such as the red stain or the neon-orange cover – to prove he is the rightful owner? How much do we trust people to be honest and not claim items that are not theirs because the lost-and-found bin strikes them as a treasure-trove of free stuff?

Mishnah first attempts to balance the benefit of having people return found items, with the concern that false claimants may appear. Claimants are required to articulate identifying marks to establish their rightful claim. But then concern is expressed about those who would cheat and deceive the finder: how do we handle this possibility? We don’t want to hand over valuable items to such people, and thereby deprive the rightful owner from reclaiming his property. Here the amoraim of the mishnah offer us Dt. 22:2 with a new twist: “until our fellow claims it” is read “until you examine your fellow to determine whether or not he is a deceiver who claims it.”

But how do we know if someone is a deceiver and a cheat? Is this something revealed by previous experience? Or must we examine each and every claimant? Moreover, do we presume people are honest? Or do we presume a priori that their motives are suspect?

Gemara explores this conundrum. If we hand over a lost articles to someone, we might well be giving away something to a deceiver, and depriving the rightful owner of his property. Yet what is the social cost to presuming people are deceptive and should be examined as to their honesty in each and every case? Gemara offers a curious anecdote that delivers a stern warning about prejudging people:
Our Rabbis taught: At first, whoever lost an article would articulate its identifying marks and take it. When deceivers increased in number, it was enacted that he should be told, “Go and bring witnesses that you art not a deceiver, then [you may] take it.”
It once happened that Rav Pappa's father lost a donkey, which others found. When [the father of Rav Pappa] came before Rabbah bar Rav Huna, he told him, “Go and bring witnesses that you are not a deceiver, and [then you may] take it.” So he [the father of Rav Pappa] went and brought witnesses. [Rabbah bar Rav Huna] said to them, “Do you know him to be a deceiver?” “Yes,” they said. “I, a deceiver?!” [the father of Rav Pappa] exclaimed to them. “We meant that you are not a deceiver,” they answered him. “It stands to reason that one does not bring [witnesses] to his disadvantage,” said Rabbah bar Rav Huna.
When Gemara says, “When deceivers increased in number” we might think that someone had examined crime statistics and determined that there is objective truth to this observation. Perhaps in the aftermath of the destruction of the Second Temple and the impoverishment of the Jewish community in Eretz Yisrael, this was the case, but the Gemara was written in Babylonia where the Jewish community was not uniformly impoverished. Moreover, Rabbah bar Rav Huna, the early fourth century amora (d. 322 C.E.) was wealthy in his own right, the owner of fields and forests from which he made his living (Baba Metzia 108a) and he headed an academy in Sura (though, it seems, not the primary academy which his renowned father, Rav Huna, had led).

What is clear is that Rabbah bar Rav Huna assumes the worst of people: they are deceivers until proven otherwise. Hence he requires that even a well-respected man, none other than the father of Rav Pappa, bring witnesses who will attest to his character. And when Rav Pappa’s father does this, Rabbah bar Rav Huna asks his question in such a contorted and negative manner that the witnesses inadvertently testify against the character and integrity of Rav Pappa’s father. They expect Rabbah bar Rav Huna to ask, “Do you know him to be an honest man?” and so the response “Yes” rolls right off their tongues. But this is not how Rabbah bar Rav Huna formulates the question. He asks, “Do you know him to be a deceiver?” The father of Rav Pappa, listening carefully to the exchange, is astonished. He expresses his bewilderment, at which point the witnesses realize what has happened and immediately change their testimony. They have been deceived, and it turns out that Rabbah bar Rav Huna is the deceiver.

Did this happen due to the particular temperament of Rabbah bar Rav Huna? Talmud knows him as a modest man who treated those beneath him in learning and social status with consideration and respect. His treatment of the witnesses brought by Rav Pappa’s father strikes us as completely out of character. Could this be Gemara’s warning that deception is a contagion? When we perceive others as deceptive-until-proven-otherwise, as the Mishnah could be construed to suggest, then we fall into the trap of presuming everyone is a deceiver, and therefore resort to deceptive means to reveal their deceptive ways? When that happens, basic trust is undermined, and indeed “deceivers increase in number.” If, however, we presume that everyone will turn on the iPod in order to locate the owner, we spread the contagion of integrity, and build the society of decency we envision.

© Rabbi Amy Scheinerman

Sunday, May 2, 2010

CONCLUDING THOUGHTS – SOTAH 49B

The end of this tractate is unusual for two reasons. First, while the Mishnah generally is ahistorical, this passage focuses on the losses caused by the successive revolts against Rome. Second, in contrast to other tractates, this tractate does not end with a nechemta, words of consolation or uplift .

David Kraemer notes the Mishnah’s typical silence on the destruction of the Temple, the conversion of Jerusalem to a pagan city, and the Bar Kokhba rebellion.
“Given the historical context in which this document was produced, we should expect to find in it significant responses to the events of the day. Yet, carefully as we might look… there is little in the Mishnah that relates to history at all. But it is not only the silence that startles, Equally surprising is the fact that, despite the destruction of the Temple 130 years before, a major proportion of the Mishnah’s laws is devoted to the Temple…” (Responses to Suffering in Classical Rabbinic Literature, pg. 53)
So the direct mention of the destruction of the Temple and the loss of the sages at the end of this tractate is striking.

The last mishnah of the tractate records the decrees that followed the unsuccessful revolts:
“In the war against Vespasian they decreed against the wearing of wreaths by bridegrooms and against the wedding-drum. In the war against Titus they decreed against the wearing of wreaths by brides and that a one should not teach Greek to his son. In the last war [Bar Kokhba’s] they decreed that a bride should not go out in a palanquin inside the town. But our rabbis permitted it. (B. Sotah 49a)
The very last passage of the tractate (less two sentences) laments the death of 13 notable sages of which these are the last several entries:
“When Ben Azzai died, diligent students came to an end. When Ben Zoma died, exegetes came to an end. When Rabban Simeon ben Gamaliel died, the locust came and troubles multiplied. When Rabbi died, troubles were doubled. When Rabbi died, modesty and fear of sin came to an end. (B. Sotah 49b)

These closing passages, which account for one-third of the last chapter, mark over 40 losses of the kind cited above. Institutions were lost, sages were killed, virtuous behavior disappeared while social, ethical and natural troubles increased. One feels the weight of a community in dissolution.

Considering the tractate as a whole, I realize that this conclusion had been foreshadowed at the beginning. In a sense the entire tractate is a metaphor; the ritual of the Sotah, the unfaithful wife, is the story of the unfaithful people. The ordeal of the bitter waters is paralleled by the Roman destruction.

On the first page of the tractate we learn that marriages are rooted in the very fabric of Creation.
“Rabbi Judah said in the name of Rav: Forty days before the creation of a fetus a Divine Voice goes forth and declares that this child is designated for that one. (B. Sotah 2a)
They are holy, as is our own covenant with the Holy One, conceived before Creation and sealed by the Torah.
“Six things preceded the creation of the world. Some were actually created; others merely arose in God’s mind. These are they: Torah and the Throne of Glory were created, the Patriarchs, Israel, the Temple and the Name of the Messiah only arose in God’s thought. (Genesis Rabbah 1:4)
The bond of marriage, like the covenant between Israel and God, is a holy creation that sustains the world.

Rabbi Hisda, however, voices a warning early on. At first it sounds like he is only commenting on family dynamics:
“Rabbi Hisda taught, “Unfaithfulness in the house is like a worm in a sesame plant.” And Rabbi Hisda said, “Temper in the house is like a worm in the sesame plant.”
The continuation of his teaching, particularly when read against the background of the closing passage of the tractate, clearly draws the parallel with the fate of the nation.
“In the beginning, before Israel sinned, the Divine Presence rested on every one of them, as it says, (Deuteronomy 23:15) For the Lord your God walks with you within the camp… Once they sinned, the Divine Presence separated from them, as it says, (Deuteronomy 23:15) Lest He see some unseemly thing in you and turn away from you. (B. Sotah 3a)
The discussion of the Sotah, the unfaithful wife, lends itself to the discussion of the destruction of Jerusalem, the Temple and all that it stood for.

Given the arc of its discussion, what nechemta, consolation, could be offered at the end of this tractate? By all accounts the devastation caused by Rome in response to the Jewish Wars was massive. The Temple would not be rebuilt. The loss of Jerusalem turned out to be permanent, reinforced by the Emperors Vespasian, Titus, and Domitian; and eventually sealed by the ascension of Christianity after the conversion of Constantine. There was little to lift one up after so great a loss.

Similarly they did not have recourse to the great Sages who brought Torah forward into the new, post-Destruction age. Rather they lamented the deaths of the great sages and with each of them the loss of that sage’s particular skill or virtue. They recounted the spreading disaster; the growth of natural, social and ethical troubles.

The last two lines of the tractate sound odd to me given the long list of losses that precede them, but they may be the only possible nechemta. The last sentences come in response to the Mishnah’s assertion that when Rabbi [Judah Ha-Nasi] died, modesty and fear of sin came to an end.
“Rabbi Joseph said to his Tanna [the one who repeated received traditions], “Do not include the word ‘modesty,’ for I am still here.” Rabbi Nahman said to his Tanna, “Do not include the words ‘fear of sin’ for I am still here.”
In response to the tremendous loss and devastation, the decimation of the population and the death of so many Sages comes a modest ani, I am here, which echoes the response of Abraham when God first called; hineni, here I am. Rabbi Joseph and Rabbi Nahman stand firm in the face of devastation. I hear in their response the power of one person to resolve to carry on the tradition. It is a stance of courage, a singular commitment that preserves our tradition.

© 2010 Rabbi Louis Rieser