2) IDENTIFYING AN OBJECT BASED ON ADJACENT OBJECTS
QUESTION: The Gemara teaches that the identity of a dead person cannot be determined based on the Simanim of his clothing, even if Simanim are d'Oraisa, because of the concern that the clothing might have been borrowed from someone else. Nevertheless, a person who lost a donkey may claim it based only on the Simanim of the donkey's saddle, because people never borrow donkey saddles. The Gemara quotes a Beraisa that states that when a Get is found tied to a wallet or to a signet ring, or it is found among a person's utensils in his home, it may be returned to the owner of the object to which it is attached. The Halachah assumes that the owner of the Get is the owner of the wallet, ring, or utensils. The Gemara asks, in light of its previous argument, why the Beraisa says that the Get may be returned. Why are the Rabanan not concerned that perhaps the owner of the wallet lent it to someone else, who then tied a Get to it and forgot about it? The Gemara answers that people do not lend out their wallets and rings; they do not lend wallets because it is an omen of misfortune to lend them out, and they do not lend signet rings because they could be used by the borrowers to forge a signature. It therefore may be assumed that the Get belongs to the owner of the wallet or signet ring.

The Beraisa, however, also teaches that a Get is returned when it is found among one's personal utensils in his home, because the utensils belong to the owner of the house. The same question seems to apply to that case as well. Why are the Rabanan not concerned that the owner may have lent a utensil to someone who put a Get in it and then returned it but did not remove the Get? After all, the Gemara earlier states that a body cannot be identified based on the clothing ("Kelim") on it, because the clothing might be borrowed. (RASHI, Yevamos 120b)

ANSWERS:
(a) RASHI in Yevamos (120b) answers that the "Kelim" that may not be used to determine the identity of a corpse are the clothing that are on the corpse. In contrast, the "Kelim" that may be used to identify the owner of a Get are personal containers of the type that a person normally does not lend to others. This is the answer that most Rishonim here give.

(b) The RASH MI'SHANTZ (cited by the Shitah Mekubetzes) answers that the Get that was found among Kelim was not found in the Kelim or attached to the Kelim, but it was found next to the Kelim. Therefore, it makes no difference if the Kelim were lent to someone else; the Get clearly was not brought back with the Kelim.

3) TRUSTING THE PERSON WHO DESCRIBES THE "SIMANIM" OF A LOST OBJECT
QUESTIONS: The Gemara suggests that a lost object may not be returned to a person who describes the Simanim of another object to which it is attached, if that second object is something that people normally lend to others. It is possible that the owner of the second object lent it to the owner of the first object, who then lost both objects. Therefore, even though the claimant knows the Simanim of the second object, this is not sufficient proof that the first object also belongs to him.

(a) If the Rabanan consider this possibility (that an object might have been lent out) to be a valid concern, then how can any lost object ever be returned to a person who knows its Simanim? Perhaps the claimant once borrowed the object, and that is how he knows its Simanim. Furthermore, a finder should never be required to return an object to a person who describes its Simanim, since it is possible that that person owned the object at some time in the past but has since sold it. Just as Simanim do not prove that the claimant is the owner -- and not a borrower -- of the object, they also should not prove that the claimant is the object's current owner.

(b) The Gemara explains that a lost donkey is returned based on the Simanim of its saddle only because people do not lend out donkey saddles. How can this be reconciled with the Mishnah earlier (24b) which states that lost fruits are returned based on the Simanim of the container in which the fruits are found? In that case as well it is possible that the owner lent his container to someone else and the borrower put fruit inside and then lost the container.

ANSWERS:
(a) There are two approaches in the Rishonim to answer these questions. (See RAMBAN.)

1. When a person claims to be the owner of an object and is able to give its Simanim, the finder does not need to be concerned that he may have sold the object; a person who has proof that he owned something in the past is assumed to be the owner now (he has a Chazakah). (Although the Gemara (28a) mentions a case in which the Rabanan are concerned that the person who gives an object's Simanim may have sold it, that concern exists only when the other claimant brings witnesses who testify that he lost the object.)

With regard to the possibility that the claimant may be aware of the Simanim only because he once borrowed the object, since a borrower normally does not hold on to an object long enough to memorize its Simanim (see Chagigah 22b), the Rabanan do not consider that to be a concern.

2. The RAMBAN and other Rishonim suggest a second answer. If a person sold an object and the buyer lost it, the seller probably would not be aware that the object was lost and attempt to reclaim it from the finder. Similarly, if a person once borrowed an object that was subsequently lost by its owner, the borrower probably would not be aware that it was lost. Therefore, there is no reason to suspect that a person who attempts to claim a lost object is really a previous owner or borrower of the object. In contrast, if a person lent his donkey saddle to someone else who then lost the donkey and the saddle, the borrower would have had to tell the lender how his saddle was lost. Consequently, a lender would be aware that his saddle and the borrower's donkey were lost together. It is therefore reasonable to suspect that a person who attempts to claim a donkey with the Simanim of its saddle is actually the owner of the saddle but not the owner of the donkey.

(b) With regard to the fruits that are returned based on the Siman of the vessel, all the Rishonim explain that this law is an enactment of the Rabanan. Although such containers are commonly lent out and the claimant therefore should not be entitled to the fruits inside them, the Rabanan nevertheless decreed that a finder should return a lost object based on the Simanim of another object to which it is attached or inside which it is found. This enactment was made for the benefit of the owners, and it is similar to the general Halachah that a lost object is returned based on Simanim, according to the opinion that Simanim are d'Rabanan. When the Gemara discusses the concern that the accompanying object might have been borrowed, it does so only with regard to returning a Get, which is subject to the more stringent d'Oraisa requirements, and with regard to the Beraisa (27a) which implies that the Din d'Oraisa is that a donkey should be returned based on the Simanim of the saddle. (See TOSFOS to 20b, DH Matza, and Rishonim here.)

The Acharonim question this approach. The ONEG YOM TOV (Even ha'Ezer 135) asks that this idea is not consistent with the logic behind the general requirement to return an object with Simanim. According to the view that Simanim are d'Rabanan, the Gemara explains that an Aveidah may be returned based on Simanim only because the owner would agree to this arrangement. The owner would reason that even if someone else falsely identifies the object with average Simanim, he will be able to give a better Siman and retrieve it (see TOSFOS DH v'Ana). This logic, however, would not apply to the Simanim of another object attached to the first, or to the case of fruits found inside a vessel. The owner of the fruits would not want them to be returned to a person who can provide the Simanim of the vessel, because if the container is borrowed its owner would be more familiar with its Simanim. Thus, the fruits could be claimed unjustly by the owner of the vessel.

The TUMIM (CM 65:12) and CHASAM SOFER (EH 1:95) raise another question. The Mishnah earlier (20a) teaches that when one finds a Shtar inside a container he may return the Shtar to a person who can describe the Simanim of the container. This seems to be the same law that applies to fruit found in a vessel. However, it is not possible to interpret this law as a Takanah d'Rabanan. The Gemara states that when a number of Shtaros are found wrapped together or three Shtaros are found that have the same borrower (or the same lender), the Rabanan do not apply even the regular Takanah of Simanim, since the borrower would not agree for his Shtar to be returned to the lender. Based on the same logic, it is not possible that the Rabanan made a Takanah to return a Shtar based on the Simanim of the vessel in which it was found. Since the Shtar might belong to the borrower and he would not agree that it be returned to the lender, the Rabanan would not make such a Takanah. This seems to disprove the approach of the Rishonim.

The questions of the Acharonim, however, are based on the general rules of returning an object based on its own Simanim. Perhaps there is a difference between returning an object based on its own Simanim and returning an object based on the Simanim of another object. The owner of a lost object would be more reluctant to allow it to be returned to anyone who is familiar with its own Simanim, since any person in the world can approach the finder and describe certain standard Simanim that are common to most objects of that type. In contrast, an owner would be less reluctant to allow his object to be returned to a person familiar with the Simanim of an accompanying object, since there is only one other person who might be able to claim it: the person who owns the accompanying object.

Moreover, when an object has Simanim, even if the Rabanan would not allow it to be returned based on its Simanim, the owner would still be able to claim the object if he brings witnesses who can testify that he owns it (if he can find such witnesses). The Gemara here, however, discusses an object which has no Simanim of its own; that is why the claimant must rely on the Simanim of an object attached to it. Even if, mid'Oraisa, a person can claim an object only with witnesses, if the object has no Simanim he will be Me'ya'esh and he will not be able to claim it (as explained earlier; see Insights to 27a). Therefore, the owner would agree to have the object returned to whoever describes the Simanim of the object attached to it; otherwise, it would be impossible for him to retrieve it.

This answers the question of the Oneg Yom Tov. Although the Gemara explains that the owner of a lost object can present a better claim than a false claimant who is able to describe its Simanim, that logic is needed only to explain why the owner would agree for his object to be returned based on its own Simanim. On the other hand, an owner would always agree for his object to be returned based on the Simanim of another object, because that also represents a gain for him; if not for that Halachah, he would never be able to retrieve his object.

The question of the Tumim (from the case of a Shtar that was found inside of a vessel) may be answered as follows. Perhaps the borrower would also want the Shtar to be returned to the claimant, because he would also benefit in a similar case. The borrower himself may lend money to someone else, in which case he would want to be able to retrieve his own Shtar in this way if he were to lose it. Thus, every borrower would agree to the existence of such a law because it might benefit him at a different time, when he becomes a lender. Why, then, does the Gemara state that a borrower would not want a Shtar to be returned based on its own Simanim? If the Shtar itself has Simanim, the borrower would prefer that the lender not be able to retrieve it based on its Simanim. Since there is a way to retrieve a Shtar that has Simanim (i.e. with witnesses), the borrower would not be concerned that he may one day be unable to retrieve a lost Shtar of his own. If a Shtar has no Simanim of its own, however, the only possible way for the owner to retrieve it would be to provide the Simanim of another object found with it. The owner will not be able to bring witnesses who can testify that the object is his, because an owner can find such witnesses only if he can describe the Simanim of the object to them. In such a case, a borrower would prefer for the Halachah to allow the lender to retrieve the Shtar so that he himself will not suffer a complete loss in a similar case.

Alternatively, although the Gemara originally suggests that the Mishnah which allows a Shtar to be returned based on a Siman must maintain that Simanim are d'Oraisa, the Gemara later allows for the possibility that Simanim are only d'Rabanan. The Rishonim explain how to reconcile the Mishnah with that opinion. Their answers can also be applied to the Tumim's question. (M. Kornfeld)

The SHACH (CM 65:26) argues with all of the Rishonim and suggests another way to explain the Mishnah which permits one to return a Shtar based on the Siman of its container. He explains that the case of a lost donkey that was found with a saddle is a case in which the finder announces that he found a saddle and a donkey. In that case, the Gemara says that if saddles were objects that were commonly lent to others, then the person who claims the saddle with Simanim would not be able to claim the donkey. The Mishnah, however, refers to a case in which the finder announces only that he found a Shtar and the person who attempts to claim it volunteers the information that the Shtar was found in a container. That person will be able to retrieve the Shtar when he gives the Simanim of the container, because in such a case there is no concern that the container may have been borrowed.

The Shach further suggests that the container might be a type of container that is normally not lent out to others.