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When can you keep money or other articles you found in someone else’s property

מהגולשים  יז טבת, תשסד  1/11/2004

Another English lesson that we got from our visitors. as part of the growth of browsers from the English speaking country's to our site.

The time was a few days before Pesach. These are always very nervous days, full of activity, especially in the religious sections of Jerusalem. On one of these days the old washing machine of Reb Moshe died. Moishe was a devout chassidic Jew and for him this was the worst possible time for the washing machine to stop functioning. True the repairman had warned Moishe that this would soon happen. The washing machine was very old, it was the first machine the young, newly wed couple, had bought when they married twenty years and eight children ago. But now, before Pesach, when they had hardly enough money for the special Pesach groceries and wine, now to get saddled with this additional tremendous expense, it was just too much. Moishe was very distressed, where would he find the money for the new washing machine? In addition to all his troubles the washing machine had to be replaced before Pesach. During the seven days of Pesach a religious Jew does not wash his dirty laundry. It had to be replaced fast, before Pesach, so they could stack up the clean laundry in preparation for the seven day Holyday. Moishe’s wife had a more optimistic personality. She witnessed Moishe’s distress with a brave smile and said “ Moishe it says that G-d reimburses us for all the Shabbat and Holyday expenses, trust G-d he will find a way to reimburse you”. Moishe took heart, yes G-d would indeed reimburse those that trusted Him. But, how is he going to advance the payments until G-d reimburses him? Pondering his poor luck Moishe went on the street to see if he can borrow some money someplace. As Moishe was strolling, looking this way and that way, greeting someone here and there, he came under a porch overhanging the sidewalk and right from heaven a wad of dollars fell on his hat. Moishe bent down and retrieved the wad of hundred dollar bills and noticed that there was a substantial number of bills in his hand. Now, giving thanks to G-d Moishe looked up to see where the dollars came from. Amidst a new rain of dollars he saw an elderly lady dusting out some books for Pesach and the dollars were pouring out of the books. Moishe picked up these dollars too and when he thought the blessed rain stopped he ran up the steps to return these dollars, as any devout Jew would, and to possibly borrow some for his pressing purchase. Moishe rang the doorbell once, he rang it again, and eventually a very infirm elderly man opened the door and looked at Moishe inquiringly. Moishe started telling of the rain of money that fell on him but it was obvious that the elderly man did not hear well. The elderly man heard the mention of money, that was something he understood, he quickly went to the next room and returned with a couple of coins in his hand which he generously offered to Moishe. Obviously the man did not grasp the import of Moishe’s story, he thought Moishe came to collect some charity. In this neighborhood many poor people collect charity to defray the high Pesach expense. While Moishe was figuring out how to convey his story in a more intelligible way the man’s wife, the elderly lady Moishe saw cleaning the books on the porch joined the conversation. Moishe retold the story of the rain of dollars falling out of the books. The elderly couple pleaded total ignorance, no, they hardly have sufficient money for their daily existence, to think that they would have a hidden stash, it can not be. Moishe again insisted that he saw the money fall from the books, where else could it come from, dollars do not fall from heaven, he said dubiously, hoping to be contradicted. Ah, suddenly the old lady remembered. These books were given to them when a neighbor of theirs, a childless man died. Could it be he had saved up this money? Well, Moishe doesn’t know what to do with his good luck, he goes home nursing the wad of bills. But on the way home his conscience started nagging him, who does this money belong to? He went to the local Rabbi to ask his advice. The Rabbi summarized the situation: it doesn’t really belong to the elderly couple, they didn’t even know the money was there, the deceased had no family or heirs, so why should it not belong to Moishe. Strange are the ways of the Lord, give thanks for his gifts and go buy your washing machine, the Rabbi concluded. Is this a far-fetched story? No, there are many like it. Recently a man bequeathed his house to the Soldiers’ Benevolent Society. The man had no close family. After his death the Society sold the house to a builder and he planned to build three houses on the plot. The builder brought in a clearing company with a tractor to raise the house. In the process of demolishing the house the tractor operator noticed a well-wrapped package, the package contained valuables. The operator did not hesitate and took the package home. Was he right? Maybe the package should belong to the builder, it was his property, or to the Society, they only sold the house not the valuable package, etc. This problem is addressed in the Talmud, the Mishne in Baba Metzia p. 25b says: If one finds an article amidst debris or in an old wall the article belongs to him. If he finds something in a new wall: if in the outer half of the wall he can take it, it he found it in the inner half of the wall it belongs to the owner of the house. The Mishne continues that if the house used to be rented out then it belongs to the finder and not the owner of the house. In Talmudic Law possession is achieved in various ways. It is achieved by grasping and raising an object or by pulling it. Possession of real estate is achieved by a written contract. Another way of achieving possession is the possession achieved by your plot of land, the Talmudic phrase is “kinyan chazer”. If an unclaimed object falls into your yard it passes to your possession through the possessive power exercised by your yard. In the two examples brought above, the case of the money found in the books or the case of the valuables found in the wreck of the house willed to the Benevolent Society, can be examined under the rule of the possessive power exercised by persons’ houses or yards. As we see from the Mishne the possessive power of the yard is limited. Thus the Mishne does not ascribe this power to an old wall, or to the outside, publicly accessible part of the wall. What are the finer criteria required for the possessive powers of the plot to be realized? The limiting criteria are: 1. The plot has to be a guarded plot, a fenced in plot not freely accessible to the public. If it is open, unguarded, lacking a fence its possessive powers are relinquished or at least diminished. This criterion is completely accepted and used to explain the situation presented by the Mishne. The old wall and the outside part of the new wall did not offer sufficient privacy, this diminished their possessive power. The Radack, one of the big law interpreters, poskim, uses this criterion exclusively to limit the possessive power of kinyan chazer. If this is the only limit then Moishe had better return the money, the demolished house is a more dubious problem. 2. The Tosfes and the Rambam add another criterion: if the owner of the plot did not find the treasure and is also not likely to find it then the possessive power of the plot is relinquished. Thus the tractor operator can claim the valuables he found in the demolished house. Can Moishe claim the money? Or would the elderly couple find the money in the books? Yes, they probably would find it if the old lady kept cleaning the books every year. 3. Mordechai, also a big law interpreter, a posek, who lived about six hundred years ago, had a different criterion: the possessive power of a man’s plot is valid for objects the seller and buyer intended to be included in the transaction. The plot will not have power for objects the seller-buyer were unaware of. Using this criterion Moishe and the tractor operator can keep their finds. How do you decide? The most accepted is the Rambam, but Mordechai also has many adherents. Depends on the Bet Din.
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