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Shabbat Parashat Bechukotai 5774
P'ninat Mishpat: Buying Usurped Merchandise(based around Shut Maharit, Choshen Mishpat 12)
Some Jewish merchants sent clearly identified Judaica to
The fundamental halacha is that one who retrieves his stolen object from a buyer from the thief (the official, in this case) does not have to reimburse the buyer. In many cases, though, there is a takanat hashuk to protect the unsuspecting buyer by making the victim of the theft reimburse the buyer for what he spent on it (the victim then sues the thief). However, the gemara (Bava Kama 115a) says that this takana was not said when the buyer bought from a known thief, and this is the ruling of the Rambam. The Ri, on the other hand, says that even if the seller is a known thief, the buyer is still to be reimbursed unless he knew that the object he bought was stolen.
The first question is how to rule in the case of a machloket, where status quo is critical. Do we say that the owners are not able to take their property without paying? Or do we say that since the property is anyway to be returned and the question is whether they should be reimbursed, we do not extract payment out of doubt? One can prove from Bava Batra 24b that the second approach is correct, and we should give the owners the benefit of the doubt.
In any case, it is clear that here all agree that takanat hashuk does not apply. First, it is clear from the identification on the objects themselves from whom they come, and the buyers should have known not to buy the merchandise. This was reinforced by the community’s ban on buying the merchandise from the official.
The only question is whether we should say that since the governmental authorities claimed the merchandise for themselves, their decision is binding based on dina d’malchuta (the law of the land – see Bava Kama 113b). There are two flaws with this claim. First, the law requires the government to wait three months for clarification before claiming the property found in the possession of someone who died in their area. Therefore, the official was not acting according to the law he ostensibly represented but as a thief, as is confirmed by the fact that the local judge instructed not to sell yet. Second the official’s claim that it was prudent to sell the merchandise and then see later what to do with the proceeds is groundless considering he sold items at a mere fraction of their true price.
Therefore, the owners of the Judaica get their merchandise back without having to pay the buyers [who can take up the matter of reimbursement with the official who sold it to them and perhaps lose their money for acting irresponsibly].
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