|Parsha Perspectives: Tazria-Metzorah: Searching Ancient Walls, Solving Today's Questions|
|Written by Rabbi Tzvi Price|
Someone recently asked the Bais HaVaad the following question. The person had gone to a thrift shop that sold used clothing and had succeeded in finding a nice suit. While wearing the suit for the first time he reached
into one of the pockets and found a hundred dollar bill that must have been left in the suit by the original owner. He wanted to know if he was allowed to keep the money or was he required to return it to the thrift shop.
This kind of question can arise at estate auctions, antique stores, used book stores, etc.... Basically, anywhere that used items are being bought and sold there is a possibility of finding something of value that had been placed in the merchandise by the original owner and forgotten there. Where does the discussion regarding these common scenarios start? A good place to begin would be from a pasuk in this week's Parshah.
In Vayikra 14:34, the pasuk states, "When you arrive in the land of Canaan that I give you as a possession, and I will give tzara'as (a kind of affliction that can appear on skin, clothing, or house surfaces) upon a house in the land of your possession...." Our Sages point out that when discussing the tzara'as of houses the Torah uses an expression that differs from that used regarding tzara'as of the skin. There the Torah states, "A man, when there will be in the skin of his flesh a saheis, or sapochos, or baheres, (three different types of tzara'as)..." (Vayikra 13:2) The Torah seems to be saying that the tzara'as that will appear on houses will be somehow an act of giving by Hashem.
Based on the Medrash Rabah, Rashi explains that, indeed, the tzara'as that was placed on the houses was beneficial to the Jews who had entered the Land of Canaan. Realizing that they were soon to engage in war against the Israelites, the inhabitants of Canaan hid much of their treasures in an attempt to safeguard them until the war was over. One of the places in which they hid their things was deep inside the walls of their houses. After the Israelites were successful in conquering the land, they searched the land for whatever hidden treasures they could find, but some of what had been placed in the walls of the houses remained undiscovered. The halacha regarding a house that has tzara'as is that after a certain point the house must be demolished. In order to reveal the treasure that was hidden inside the house, Hashem would give tzara'as on the house, forcing the owner to knock down the house, and thereby find the much more valuable treasure.
All this is simple enough, but to find the 'treasure' for which we are searching we need to look deeper into these ancient walls. One might ask a rather legalistic question regarding these Canaanite treasures. When a Canaanite house was taken over by a new Jewish owner, did the treasure in the wall also automatically become the property of the Jew, or was it necessary for the Jew to actually find the treasure to become its legal owner? Let us explain.
According to Jewish monetary law, ownership of an object occurs when a legally recognized act of acquisition (a kinyan) is performed upon the object. Until a kinyan is made, ownership is not established. For instance, in order to actually become the owner of your grocery order that was delivered to your door, you must actually lift up the box or drag it into your house. It is technically not yours when it is initially placed in front of your house by the deliveryman. In our case, as soon as the new Israelite owner had taken possession of the Canaanite house, a certain halachically recognized kinyan, called kinyan chatzer, could potentially be made automatically upon the treasure. According to the Torah, a kinyan is considered to have been performed automatically upon an object when the object is located in the acquirer's secured courtyard (chatzer) or property similar to the courtyard archetype (e.g., a house). The question at hand is as follows. Is a kinyan (in this case, kinyan chatzer) performed upon an object valid when the acquirer does not have reason to suspect that the object exists, or is a certain level of knowledge regarding the possibility of the object's existence necessary in order to become its owner?
Let us make this question a little more tangible. What would happen if the owner of the house did not find the hidden Canaanite treasure, but, rather, a stranger found it by tapping on the walls of the house when the owner was away? Who would own the treasure, the owner of the house, or the treasure-hunting tapper? If the owner of the house can make an automatic kinyan chatzer on a treasure that he does not have reason to believe exists, then the treasure is his, but if he can't, then the treasure belongs to the stranger.
This question should sound awfully familiar because it seems to be precisely the same question asked to the Bais Havaad by the man who had found the hundred dollar bill in the suit bought at the thrift shop. If the owner of the thrift shop is able to acquire the money through kinyan chatzer though he did not know about the money's existence, then the money belongs to him. If not, then the money belongs to the man who purchased the suit.
In Bava Metziah 25b, the Talmud states that a person who finds an ancient treasure in the walls of someone else's house can keep his find because he can presume that the treasure was put there by the Amori'im, one of the Canaanite tribes. The Mordechai, in Bava Metziah, siman 258, explains that the owner of the house does not acquire the treasure by means of kinyan chatzer because he had no idea that a treasure might be hidden in the walls of his house. This ruling of the Mordechai is codified in the glosses of the Remah on the Shulchan Aruch in Choshen Mishpat 232:18 and 268:3. Applying this ruling to our case, it would seem that the man who asked the question to the Bais HaVaad could keep the hundred dollars that he found. However, there is one more thing to consider.
The Mordechai explains that in the case of the Mishnah the owner of the house did not have any reason at all to think that there was a treasure buried deep within the walls of his house. During the times of the Mishnah, finding buried Canaanite treasure was not nearly as common as during the period immediately after the Israelite conquest and settlement of the Land of Israel. However, if the case would have been that finding treasure within the walls of one's home was a relatively common occurrence, then the owner of the house does acquire the treasure through kinyan chatzer since the owner of the chatzer does have a certain amount of knowledge regarding the treasure's existence.
In our case it would follow that, according to the Mordechai, the man must give back the money to the thrift shop. Thrift shop owners know that people often inadvertently leave valuables in the things that are given to the thrift shop. Usually, a thorough search is done by the thrift shop on all the items brought to them before they place the merchandise on the store floor. (However, nothing is foolproof, and sometimes things like hundred dollar bills slip through.) The case of a thrift shop is not similar to the Mishnah, and the thrift shop owner is considered to have already acquired the money that had been forgotten in the suit through kinyan chatzer before the purchaser of the suit found the money. Thus, the man is required to return the money to the thrift shop owner. Of course, in a situation in which a thrift shop does not normally come across a certain type of forgotten valuable or does not find things in a certain type of merchandise, then that would be similar to the Mishnah and the customer would be allowed to keep whatever he found.
This discussion was meant to serve as just a small glimpse into the kinds of questions and researched answers that happen at the Bais HaVaad. Numerous questions such as this one (and ones significantly more intricate and challenging) are asked to the Bais HaVaad on a daily basis. Answering them to the very best of our ability is our passion and our mission. The Dayanim, Rabbanim and faculty of the Bais HaVaad are committed and available to help you with a host of Choshen Mishpat services. We invite you to take advantage.
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