Do simanim play the same role in hashavat aveidah and hetter agunot? The Gemara (see Bava Metzia 27b) indicates that they do play the same role. The Gemara compares the relative standing of simanim in both areas of Halacha: if simanim beinoniyim (mid-level simanim, which are shared by a few people or objects but not by most people or objects) are biblically valid, then they must be equally valid for hashavat aveidha and hetter agunot. If they are biblically invalid, then they must be equally invalid for hashavat aveidha and hetter agunot. By contrast,
the Rambam seems to write that simanim do not play the same role for hashavat aveidah and hetter agunot; he rules that simanim are biblically valid proof of a lost object’s identity but are not biblically valid proof regarding the identity of an agunah’s missing husband.
Rav Soloveitchik, while not addressing the discrepancy between the Gemara and the Rambam, suggested a possible rationale for the Rambam’s distinction between hashavat aveidah and hetter agunot. In the context of hashavat aveidah, simanim do not serve to identify the lost item. Rather, simanim serve to prove the honesty of the person claiming ownership of the item. The lost item is identified by the presumed owner’s eye-recognition (tevi’ut ayin) after his honesty has been established. By contrast, in the context of hetter agunot, simanim serve to identify the agunah’s missing husband, something that on a biblical level they are incapable of doing.
The thesis that eye-recognition rather than simanim establishes the lost item’s identity is supported by the fact that a talmid chacham is believed to claim ownership of a lost item without providing simanim. Since talmidei chachamim are presumed by halacha to be honest, they do not need simanim to prove their honesty. Further support for this idea may be adduced from the Gemara’s statement (Chullin 96a) that eye-recognition is better than simanim. The Gemara notes that if witnesses report the simanim of murderers, we cannot convict the murderers solely on that basis. If the witnesses claim eye-recognition of those murderers, though, we can convict them. The Gemara notes, however, that this concept seems to run counter to the halacha that we return aveidot based on simanim, yet we do not return aveidot based on eye-recognition. Rabbi Soloveitchik’s idea resolves this inconsistency; really, aveidot are only returned based on eye-recognition; simanim are insufficient to identify the aveidah (just as they are insufficient to identify the agunah’s missing husband, and just as they are insufficient to identify murderers), and they are required only to ascertain the honesty of the aveidah’s presumed owner.
The Pnei Yehoshua writes that a claim of certainty (ta’anat bari) is sufficient grounds to claim money if there is no known possessor (muchzak). If so, it is hard to understand the need for simanim in the context of an aveidah, as nobody is muchzak on an aveidah. Why, then, do we require simanim to return an aveidah? Based on Rabbi Soloveitchik’s analysis, we can address this difficulty. The Torah imposes an obligation to ascertain the honesty of someone claiming the right to an aveidah by requiring him to provide simanim. Having determined his honesty, we in fact return the aveidah based on his ta’anat bari and eye-recognition.