לרפואת
Car Accident Victims:
לאה הדסה בת מיכל חנה לרפו''ש
Leah Hadassah bas Michal Chana (11-years-old)
חוה בת מיכל חנה לרפו''ש
Chava bas Michal Chana (7-years-old)
יוכבד רבקה בת מיכל חנה לרפו''ש
Yocheved Rivka bas Michal Chana (5-years-old)
גדלי' דוד בן מיכל חנה לרפו''ש
Gedalya Dovid Ben Michal Chana (4-years-old)
לע"נ סבתי חנה בת ר' מאיר זאב
The halacha is that if one finds a מציאה AFTER יאוש then he can keep it. But if he finds it BEFORE יאוש then it must be returned. The reason is either because the obligation to retuen the object takes effect the moment he found it [Tosfos Bava Kamma 66] or because he is considered a שומר אבידה, a guardian for the rightful owner [Ramban Milchamos Hashem 26 Bava Metzia 26],
The Minchas Chinuch [מצוה תקל"ט] says that this doesn't apply to a kotton and that if he finds an object with intention to return the object and later the owner has יאוש and then the kotton reached Bar Mitzva age, he may keep the object. Why? Since he is a kotton the object never really came into his possession and it is as if it is sitting on the ground untouched. Hence, we can't say that there is an obligation to return the object or that he is a שומר אבידה.
This requires further understanding [in the Mir they say "צריך עיון בזה"]. Why is the יאוש effective to allow the kotton to keep the object? He was obligated to both return and guard the object because of the חיוב חינוך?!!
In other words, we can ask both according to Tosfos [who say that the reason יאוש isn't effective is because he is obligated to return the object] and according to the Ramban [who explains that the reason is because he is a שומר אבידה] that a kotton has a חיוב דרבנן to both return and guard the object, so why shouldn't he be obligated in השבה?
Two possible answers:
1] Indeed, as long as he is a kotton he is obligated to return the object מדרבנן because of his חיוב חינוך. However, once he became a gadol the obligation falls away and at that moment the יאוש had already taken place, so there is no obligation to return the object.
But this would depend on the question of whether the חיוב חינוך continues into adulthood. We find this issue when a kotton started counting Omer and then because a gadol. Does he continue counting with a bracha? Some say he does because the חיוב חינוך still applies in addition to the completely new חיוב מדאורייתא. Others argue that he may not continue counting with a bracha because you can't start counting in the middle [because the counting must be complete "תמימות"] and once he becomes a gadol it is a completely new count. A similar question would apply when a kotton forgets mincha and then becomes a gadol. Does he daven 2 maarivs? If he is still obligated in חינוך then yes. So if we say that the חיוב חינוך no longer applies we can understand why he is not obligated in השבה.
2] Since מדאורייתא there is a חלות יאוש, his חיוב דרבנן isn't powerful enough to override that. So once he becomes a gadol it is HIS!!
[מאוצרות הגר"א גנחובסקי זצ"ל]
