Question: May a homeowner keep a valuable object that he finds buried in his yard?
Short Answer: Unless the owner knows that the object was there from before he purchased the property, many Acharonim rule that he may not keep the object, as his property acquired the object before yiush and now the property owner must return it or hold onto the object until Eliyahu HaNavi comes.
I. Forfeiture Review
We previously discussed the rules of “yiush” – forfeiture. See Article #4. In short, a finder may only keep a lost object where he picked up the item after the owner gave up hope of ever retrieving the object. We explained that the finder must know that the owner gave up hope and cannot simply rely on the “assumption” that the owner gave up hope.
One exception, however, is when we have circumstantial evidence that the owner long gave up hope of ever retrieving the object, such as the object is rusty and dusty, i.e., buried in a yard. As previously explained, in such a case, the finder may simply assume that the owner gave up hope and the finder may keep the object.
But what about if the object is buried in the finder’s own yard?
II. The Emorim’s Treasures
The Mishnah (Bava M’tzia 25b) states that a person who finds a lost object in a pile of rocks from a fallen wall on his friend’s property may keep the object. The Gemara (Bava M’tzia 25b-26a) explains that the finder may keep the object, because we assume that the object was originally owned by the Emorim who inhabited Eretz Yisrael before the B’nei Yisrael conquered the land. The Gemara adds that we are not concerned that the object was hidden there by the current Jewish owner of the property, because the object is dusty and rusty.
Yet, an obvious question remains: Why does the object not belong to the owner of the wall and the property? Even though he did not know about the object, why doesn’t his property acquire the object by virtue of the fact that the object was on the property – a “kinyan chatzeir”?
Tosafos (Bava M’tzia 26a) answers by explaining that a person’s property does not acquire something that might never be found. In other words, since this lost object was buried deep in a pile of rocks and might never be found by anyone, the property owner never acquired it simply by virtue of kinyan chatzeir. Thus, when the passerby finds the object, he may take and keep the item.
The Rosh (Bava M’tzia 2:9), while first mentioning the answer of Tosafos, suggests a different answer. The Rosh traces the likely history of ownership of the property and thus the Emori’s object. First, the B’nei Yisrael conquered the land, thereby giving them joint ownership in Eretz Yisrael. At that point, the entire B’nei Yisrael also gained joint ownership in the item. When the land was subsequently divided, the current property owner’s ancestor took ownership of the property and thus the object as well, as the rest of the B’nei Yisrael had yiush (forfeiture) at that point. However, the current property owner’s ancestor was unable to keep the object at that point, because his property unknowingly acquired it through kinyan chatzeir before the yiush occurred. His descendant likewise cannot keep the object because the ancestor was forbidden to pass down this object that he acquired before yiush. The Rosh then explains that kinyan chatzeir must follow the same rules as picking up the item with your hand – in order for the finder to keep the object, it must not have been “acquired” before yiush.
The Maharshal (cited in the Shach 268:2) notes a key ramification between Tosafos and the Rosh. May a property owner keep an object that he finds in his property? Even though at the time that the property owner finds the object and picks it up the owner of the object had yiush, the property “acquired” it before yiush (since it was lost on the property).
According to Tosafos, the property owner may keep the item, as Tosafos does not codify this principle that a property owner may only keep the object if it acquires it after yiush. The Rosh, on the other hand, applies this principle to property, and thus would rule that the property owner may never acquire the object, even though at the point the property owner found the object, yiush had already taken place.
The Shach (ibid) himself rules like the Rosh, and thus a property owner would not be permitted to keep an object found on his property unless he knows that there was yiush before he acquired the property.
IV. The N’sivos HaMishpat’s Question
The N’sivos HaMishpat (Choshen Mishpat 262:1) attacks the Rosh from a different halachah in the Shulchan Aruch. The Shulchan Aruch (262:17) rules that a merchant who finds money among his wares may keep the money as long as the money has been in his hands long enough for the owners to have had yiush by the time the merchant notices the money. The N’sivos asks why the merchant is allowed to keep the money; didn’t it enter his property before the owner had yiush? Rather, the N’sivos proves from here that we must make a crucial distinction even within the opinion of the Rosh, as detailed herein.
The rule that a property owner may only keep the object if it entered the property after yiush only applies where the owner wants the property to acquire the item. In other words, when a passerby finds the object first, but the property owner claims that the object belongs to him because his property acquired it first, we rule that the property owner may only rely on kinyan chatzeir to keep the item if there was yiush before it entered his property. However, in a case where the property owner does not want his property to acquire the object – such as when the object entered the property before yiush, but the property owner only noticed it after yiush – we rule that the property owner may keep the object, as kinyan chatzeir does not acquire it for him against his will.
Based on the N’sivos, any time that a person finds a rusty or dusty object on his property, he may keep it, as the owner has certainly had yiush at this point and it is irrelevant whether there was yiush before or after it entered the property.
V. Practically Speaking
Many, however, disagree with the N’sivos’ leniency. Indeed, the Pischei Choshen (Aveidah 2:7:12) wonders whether the N’sivos himself would require an active announcement by the property owner before yiush that he doesn’t want his property to acquire any lost object. Moreover, the Pischei Choshen (ibid) cites the Beis Yitzchak who expressly rules that property always acquires objects unless the property owner expressly states that he does not want the property to acquire this object. Hashavas Aveidah K’Halachah (5:8:27) cites Rav Yosef Shalom Elyashiv zt”l, who follows the Beis Yitzchak and thus would allow the property owner to expressly stipulate that his property does not acquire the item.
Moreover, the Pischei Choshen (ibid 13) adds that some Acharonim don’t even allow subsequent purchasers of the property (after yiush) to acquire the property. The Pischei Choshen himself disagrees, though, with this extension.
Finally, Rabbi Akiva Eiger (cited in Hashavas Aveidah K’Halachah 5:8:26) asks on the Rosh that since the property owner doesn’t benefit by the property acquiring the object before yiush, the property shouldn’t acquire the object (because the Rabbis never gave it the power to do detrimental things)! Rabbi Akiva Eiger answers that since hashavas aveidah is a mitzvah, the Rabbis ruled that the property acquires the item in order that the property owner go and fulfill this important mitzvah. The upshot, though, is that according to Rabbi Akiva Eiger, if the object has no identifying features and will never be able to be returned, this takanah does not apply, and the property owner may keep the object even if it entered the property before yiush. Hashavas Aveidah K’Halachah rejects this chidush and rules that the property owner may still not keep the item.
Next Week’s Topic: Is a woman obligated to return a lost object that she finds?