Shabbat Parashat Bo| 5768

Ask the Rabbi

Question: I saw the following story on the news. During renovations on a home that had been owned by several people over the years, a contractor found a package with $182,000 stashed between the walls. The contractor took the money, but the homeowner complained that since the money was found in his house, it should be his. What would the halacha be in such a case?

Answer: For simplicity’s sake we will deal with this as a theoretical case occurring in Israel and avoid factors that might arise elsewhere due to local considerations.

The gemara (Bava Metzia 26a) discusses one who finds an object in an ancient wall, where there are signs that it has been there since before the Israelites conquered Israel. It says that the finder (even if it is not the owner of the property) can keep the object. Tosafot (ad loc.) asks why the property (chatzer) did not acquire the lost object on behalf of its owner even without his knowledge of the object’s presence (see Bava Metzia 10b). Tosafot answers that one’s chatzer can acquire things only when it is expected that the owner will eventually find them.

In our case, it could very well have been that the owner would never have found the object and, therefore, the money remained unowned (presumably; see discussion below), allowing the contractor to acquire it upon finding it. This basic idea is accepted as halacha in the Shulchan Aruch (Choshen Mishpat 260:1) but there are two possible explanations. The S’ma (ad loc.:2) says that a chatzer acquires only objects of hefker (ownerless status) but not lost objects even when their owner gives up hope of recovering them. The Netivot Hamishpat (ad loc.:3) says that it all depends on whether the owner was expected to find it some day, as Tosafot says. Either way, the contractor would be correct in our case. (The fact that the contractor was working for the homeowner at the time he found the package does not change the halacha- see Shulchan Aruch, CM 270:3.)

However, there is another factor that, in a society without special laws of lost objects, was not considered. Even if we assume that the owner of the money cannot be discovered, does that mean that the finder can keep it? When the person stashed the money, he apparently planned to take it at some time. We lack sufficient grounds to conclude that he decided to never retrieve the money. It is likely that something happened that either made him forget the money was there or that he died without taking the opportunity to inform someone where he put the money. Since (virtually) everyone has some sort of inheritor, even if the owner died, there would seem to be a new owner who may not even know that he inherited money and thereby cannot have yeiush (give up hope). Since that which allows a finder to take an object (even one without signs) is the presumption of yeiush (giving up hope), the finder would have to hold on to it and entertain the remote possibility that someone will come and prove his ownership (see Rama, CM 260:10).

We have to see why in the gemara’s case, the finder could take the old lost object. There is an opinion that it has to do with the fact that it was left over from the nations that were conquered long ago, making it not applicable to a regular case. However, the accepted assumption is like the following Netivot (260:1). The idea is that in the situation where one loses something in a manner that it is unlikely to ever be retrieved, his lack of control prevents inheritance from occurring and it becomes hefker (see also Netivot 256:1 and Pitchei Choshen, Aveida 3:5 and 7:(10)). Therefore if we can ascertain that the money has been hidden long enough for us to presume that its owner died, the contractor could keep the money. If not, the matter would raise new, complicated questions that are beyond the scope of this theoretical discussion.

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