2) AN ITEM THAT IS "SAFEK HINU'ACH"
QUESTION: The Mishnah states that one is not permitted to take Gozalos without a Siman that are found behind a fence. The Gemara explains that since the Gozalos hop from place to place, one cannot be certain that they were placed intentionally in this place by their owner and thus he may not take them because of the rule of "Safek Hinu'ach." This rule states that if one finds an object in a slightly protected area where it might have been placed by the owner intentionally, he may not take it. The Gemara adds that if a person does take such an object, "he does not return it" ("Lo Yachzir").

RASHI explains that he does not return it because no one can give a Siman to claim the object. Rashi seems to understand that the words "Lo Yachzir" do not mean that the finder may not return the object to the place in which he found it, but rather "Lo Yachzir" means that the finder may not give the object to a person who claims that it is his, because the finder may not honor a claim without a Siman. Rashi later writes this more clearly (37b, DH v'Im Natal). Rashi there concludes that the finder must hold the object until Eliyahu ha'Navi comes or until the true owner brings witnesses who testify that he placed the object there.

According to Rashi, why is it necessary for the Gemara to teach that one should not return a lost object to a claimant who does not give a Siman? The verse, "Ad Derosh Achicha Oso" (Devarim 22:2), teaches that an Aveidah may not be returned unless the claimant presents Simanim that it belongs to him (and according to the opinion that Simanim are d'Rabanan, he must present witnesses that it belongs to him). (TOSFOS, end of DH v'Im)

ANSWERS:
(a) At certain times an Aveidah is returned without a Siman. The Gemara (24a) teaches that an object without a Siman may be returned to a Talmid Chacham based on his Tevi'us Ayin alone, since he is known to tell the truth. Perhaps the Beraisa means that even if a Talmid Chacham wants to claim this object, it may not be returned based on his word alone.

However, this answer is difficult for two reasons. First, Rashi does not mention anything about returning the object specifically to a Talmid Chacham. Second, if an object normally is returned to a Talmid Chacham without a Siman, then why should the case of "Safek Hinu'ach" be any different? The Tevi'us Ayin of a Talmid Chacham should be enough for such an object to be returned to him as well.

In fact, it seems that the Aveidah indeed should be returned to a Talmid Chacham based on Tevi'us Ayin, because Tevi'us Ayin is the best form of Siman (see 19a, where the Gemara seems to equate it with a "Siman Muvhak" with regard to a Get). When Rashi writes that one should not return the Aveidah because it has no Siman, he means that if it is not claimed by a Talmid Chacham it should not be returned. Thus, the question remains: why must the Gemara teach that the Aveidah is not to be returned without a Siman?

(b) One might have interpreted the verse of "Ad Derosh Achicha Oso" as referring only to an object which can be identified based on Simanim, while an object that has no Siman may be returned based on the claimant's word alone. One might have thought that the Torah requires that the claimant give a Siman to retrieve a lost item in order to protect the true owner (so that no one else will be able to claim to be the owner). When an object has no Siman, however, this rule seems to be to the owner's detriment, since it prevents him from retrieving his object; it would be in his best interests to allow him to collect it without a Siman. If the Torah would insist that the claimant provide a Siman, a person would not be able to retrieve his Aveidah that has no Siman. The Gemara therefore teaches that even an object with no Siman should not be returned without a Siman, because there is still a possible way, albeit a difficult one, for the owner to retrieve it: if he brings witnesses who testify that the object belongs to him (even though such witnesses are difficult to find).

According to the opinion that Simanim are mid'Rabanan, there is a more straightforward explanation of the Gemara. The Gemara later (27b) explains according to this opinion why the Rabanan instituted that an Aveidah may be returned merely with Simanim and without witnesses, even though the Torah requires witnesses. The Rabanan knew that such an enactment would be in the best interest of the owner, since it is difficult to find witnesses who can testify that the object belongs to him. Therefore, the owner of an Aveidah would prefer that the object be returned through Simanim even though it might be returned to the wrong person. Based on the same logic, one might think that the Rabanan permit one to return an Aveidah without a Siman (Safek Hinu'ach), even though it might be returned to the wrong person. The Gemara therefore must teach that it is not returned without a Siman, but rather it may be returned only when witnesses testify that it belongs to the claimant.