Presence

In the fourth season finale of HBO's Curb Your Enthusiasm, Larry David is about to star as Max Bialystoyk in Mel Brook's Broadway musical, The Producers, with David Schwimmer as Leo Bloom. Before the show, Schwimmer loses his watch, which Larry finds, but then loses (or so he thinks), an argument ensues as to who is responsible for the lost watch. Later, Larry discovers that the watch was acutally stolen from him by one of the hotel workers; he recovers the watch and returns it to Schwimmer, and The Producers is a big hit (much to Mel Brooks' chagrin). See the above clip.

The question is: had the watch not been found, who would have been responsible? Would Larry have to either reimburse or replace the watch? Or is Schwimmer out of luck? Usually, things don't work out to well for Mr. David. Whose side is the law on?

Fortunately for us, this is a famous debate in the Talmud. What is the halacha when someone finds a lost object, but then that object is either lost, stolen or accidentally damaged? The Talmud, in tractate Bava Metzia, 29A (and other places) brings down the famous case of pruta d'Rav Yosef, the penny of Rav Yosef.

When one finds a lost object, one becomes a guardian over that object; ostensibly, one is an unpaid guardian, which would mean that should anything happen to the object while one has guarding it, one would not be liable. Rav Yosef, however, has a famous opinion which changes the game: Rav Yosef holds that when one guarding a lost object, since they are at times taking care that the lost object is maintained (making sure it remains functional, clean, etc.), they are considered "involved in a mitzvah", and, should they happen to be approached by a poor person asking for money while caring for the lost object, they could claim that they are exempt from the mitzvah of tzedakah, as they are involved in the mitzvah of hashovas aveidah, returning a lost object. The monetary savings, albeit insignificant and probably theoretical, do have some actual value to the guardian. When applied in this case, it turns out that, according to Rav Yosef, Larry is benefiting, however minutely, from watching over David's watch. Therefore, he is considered a shomer sachar, a paid guardian, and would be obligated to reimburse David should the watch be lost or stolen (but not if it was accidentally damaged). For those that do not hold like Rav Yosef (Rabah, in this case), Larry would simply be a shomer hinam, an unpaid guardian, in which case he would not have any responsibilities vis-a-vis the watch, and would not be obligated to pay back Mr. Schwimmer.

The Rambam, in Hilchos Gezeilah V'Avedah (13:10), holds like R. Yosef (which would mean that Larry would be on the hook for the watch); other rishonim, such as the Ri and the Rosh, hold like Rabah, that Larry was a shomer hinam and free of responsibility. The Rambam's opinion, however, is favored, and the Shulchan Aruch, in Choshen Mishpat 267:16 agrees, paskening that one who is guarding a lost object is considered like shomer sachar. As usual, things aren't looking good for Larry.

But wait! The Ramah adds that, "just as in a case of collateral, we have the same ruling here." This cryptic statement can be understood with the help of the Meiras Einaim, who explains that in a case one takes collateral on a loan, but the collateral is worth more than the value of the loan, we are uncertain if the lender is responsible for the value above the total amount of the loan in the same way as he is for the principal value. For the principal value, the lender is certainly considered a shomer schar, and would be responsible for that portion of the collateral. But the value of the collateral beyond the total amount of the loan? We aren't sure, and so we are lenient and treat him as an unpaid guardian. So to, in the case of the guardian of a lost object, we say that we are unsure, and therefore Larry would be, quite uncharacteristically, off the hook.

Happy Purim!