Yosef and Baruch were neighbors who often helped one another regarding simchos. When Baruch’s son became a chosson, Baruch asked Yosef if he could borrow his tuxedo for the wedding.
“It would be my pleasure!” Yosef replied.
“I’ll return it cleaned and pressed,” Baruch said gratefully when he came to pick up the tuxedo.
“No need – just bring it back after the wedding,” replied Yosef. “I prefer to dry-clean it at a place near my office.”
The wedding was beautiful, and the tuxedo fit perfectly. A few days later, Baruch returned it, neatly hung in its garment bag. “Thanks again,” he said warmly. “You really helped me out!”
Later that night, Baruch called Yosef. “I left something in the tuxedo pocket – an envelope with $2,000 cash,” he said. “I prepared it for tips but didn’t end up using it. Could you please check?”
Yosef went straight to the closet, slipped his hand into the inner pocket, and felt an envelope.
“You’re right,” he said. “I found it – but there’s only $1,500 inside.”
“That can’t be!” said Baruch, startled. “I’m certain there was $2,000.”
“I’m telling you, that’s all that’s here,” said Yosef. “The envelope wasn’t sealed – maybe some bills slipped out when you took the tuxedo off.”
“Bills can’t fall out of an envelope in a pocket,” said Baruch quietly. “I’m sure of the amount. I counted twice before the wedding.”
Baruch didn’t really suspect Yosef of stealing, but the problem of the missing $500 needed to be clarified.
“I don’t know what to say,” said Yosef. “I’ll do whatever halacha requires.”
“Let’s ask Rabbi Dayan,” suggested Baruch.
The following day, the two came to Rabbi Dayan and asked:
“Does Yosef have any responsibility for the missing $500?”
“Usually, a person who admits partially is required to make a Biblical oath of modeh b’miktzas,” replied Rabbi Dayan (C.M. 75:2).
“However, the Mishna (Gittin 48b) teaches that a person who finds and returns a lost item is not obligated to swear, even if the owner claims that there was more. Chazal instituted this exemption on account of tikun ha’olam, lest people be hesitant to return lost items (C.M. 267:27).
Shulchan Aruch (ibid.) rules that the finder is exempt even if the owner claims that he lost two pouches that were tied together and could not be detached on their own, rejecting the opinion of Rabi Yitzchak (Gittin 51a), who obligates the finder to swear in this situation.
Nonetheless, Sma (267:42) maintains that when the owner claims outright that he saw the finder pick up both pouches – whereas the finder denies this – that is already like any other definitive claim with partial admission, which warrants an oath.
The Taz disagrees and maintains that Chazal exempted the finder from swearing even in this case, lest a person be hesitant to pick up the item so that he should not be brought to swearing. He brings proof from the ruling of the Tur that if the finder were to admit that he found two items but claim that he had already returned one, he would be exempt from an oath, even though the owner claimed outright that the finder hadn’t returned anything yet.
Terumas Hakri (267:27) links this dispute to a controversy between the Rishonim in understanding the sugya of Rabi Yitzchak.
Nonetheless, in this case, it seems that the exemption would apply only if Yosef had initiated the dialogue and notified Baruch that he’d found money in the jacket.
However, here, where Baruch initiated and told Yosef that he’d left the envelope in the jacket, seemingly the Taz would agree that this is not included in the exemption of meishiv aveidah and would be considered like any other claim with partial admission.
Thus, since Baruch claims definitively that the envelope contained $2,000, whereas Yosef claims that he found only $1,500, Yosef is considered a modeh b’miktzas and required to swear or compromise unless Baruch trusts him and exempts him from swearing.
“Nonetheless,” concluded Rabbi Dayan, “if Yosef is prepared to immediately return the $1,500 that he admits to finding, he would not be obligated in a modeh b’miktzas oath (heilech) (C.M. 87:1).”
Verdict: Chazal exempted a person who returns a lost item from an oath of modeh b’miktzas when the owner of the item claims that there was more. Some require an oath if the owner claims that he saw the finder pick up more. However, if the owner of the forgotten item initiates, he seemingly is not included in the exemption.