MINE AND THINE: THE PROBLEM OF PRIORITY IN CIVIL LAW (“HASHAVAT AVEDAH”)

The classic text for discussions of self-sacrifice in Judaism is, as the peoples well know, the famous dispute between Rabbi Akiba and Ben Patura about two peoples in the desert; one holds the only flask of water, and the question is whether he should keep it for himself or not. The Bible, ever-anxious to impose responsibility, concerns itself with obligation alone, speaking only of what the finder must do. The Talmud, on the other hand, considers a much broader range of issues and adopts a more nuanced posture. Obliging the individual to stipulate so as to impose upon him the duty of hashavat avedah might also be considered an illegitimate extension of the biblical norm; the process of stipulation might, after all, be seen as non-intrinsic to the act of restoration. The scriptural passage, even as midrashically understood, only allows for two directives: either the people must attend to the lost object, or not.