Responsa for Nedarim 67:3

אחדא קתני

— This law refers to one case only.<span class="x" onmousemove="('comment',' I.e., where the loser may not benefit from the finder. This is the interpretation of the passage according to our text. But the text of Ran is reversed, and (with its explanation) is as follows: This is well on the view that only if the loser may not benefit from the finder it may be returned, but not in the reverse case. Hence, the fee must go to the Temple treasury. if it is beneath the finder's dignity to accept it, for were the loser to retain it, he would be benefiting from the finder. But on the view that even if the finder must not benefit from the loser it may be returned, why must the fee go to the Temple treasury? If the finder declines it, the loser may retain it, since here is no prohibition upon him. If on the other hand the finder wishes to accept it, why may he not do so: in accepting it he is not benefiting from the loser, but merely being paid for lost time? The Talmud replies that though the law permitting the return of the lost article applies to both cases, the statement that the fee must go to the sanctuary applies only to one, viz., where the loser may not benefit from the finder. ');"><sup>3</sup></span>

Teshuvot Maharam

Q. A sold his house to B and undertook to settle with the abutter so that the latter would not take the house away from B. The abutter, also, told B that having no money he did not want to buy the house. B, however, failed to bind the abutter by a kinyan. A borrowed jewelry from his wife and deposited it with C stating: take formal possession of this jewelry on condition that if I fail to settle with the abutter it will belong to B from now on. B, on the other hand, deposited twenty^*Cr. reads: “two;” Mord. reads: “four;” L. and Tesh. Maim. read: “twenty.” marks with C as a guaranty that he would pay the price of the house and that he would not change his mind. After the transaction was concluded, however, the abutter obtained money, paid off B, and took away the house; B, therefore, demanded of C that he turn over to him the valuables A had deposited with him. C told A in the presence of witnesses of B's demand and A replied that he should give the valuables to B "since it is legally coming to him". Is B entitled to the valuables?
A. A gave the valuables to C in order that he deliver them to B should a certain condition not be fulfilled. Such a transaction is called asmakhta and is not binding since it was not made before an authoritative court. When A finally told C to deliver the valuables to B, he was acting under misapprehension that they were due him legally, as his statement indicates. His order, therefore, was not binding and B should return the valuables to A.
SOURCES: Cr. 290; L. 309; Mord. B. B. 324; Tesh. Maim to Kinyan, 3.

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