Yeiush (II)

Last shiur, we both described the possibility that yeiush operates as hefker, as well as citing several indicators against this view. This shiur will address the question of how yeiush might function as an independent halakha.  Although the gemara does not directly address this question, it does impose a limitation onto yeiush which leads to a dramatic dispute between Tosafot and the Ramban.

          The gemara in Bava Metzia (21b) assumes that yeiush will operate only if it preceded the retrieval by the finder.  Otherwise, if the finder takes the item before yeiush, this case is considered "issura ati le-yadei" – literally, "the item was acquired through issur."  Tosafot in Bava Kama (66a) address this concept as it concerns the efficacy of yeiush for a ganav (thief).  Here, as well, the gemara considers rejecting yeiush for a ganav since it arrived in his hands prior to yeiush (which presumably occurred only after the actual theft).  Tosafot mention that the 'chovat hashava,' the obligation to return the item, inhibits the kinyan of the finder.  The Torah obligates both a finder and a ganav to restore the item; once this obligation is generated, subsequent yeiush cannot enable his acquisition.  If, however, yeiush precedes the retrieval, no 'chovat hashava' evolves.  A finder has no restorative obligations to an owner who has already despaired of recovering his item.  Once obligated, however, ensuing yeiush cannot remove this halakhic obligation and no kinyan can be consummated. 

          This view of Tosafot assumes a fascinating premise regarding the halakhic definition of ownership (ba'alut).  Without any halakhic impositions or obligations, the finder would have achieved full ownership.  The original owner cannot extend his title to items which are both outside his physical domain as well as absent from his knowledge.  In terms of pure monetary evaluation, then, the item should belong to the finder.  However, as the Torah obliged restoration, the full development of the kinyan is arrested.  I cannot fully own something which I have a moral/halakhic obligation to return.  Once that moral obligation evolves it can never be removed and the kinyan is impeded.  If yeiush precedes the retrieval, no chovat hashavah develops and the kinyan can unfurl.

An interesting consequence of this view is voiced by both the Netivot and the Ketzot.  Each claims that yeiush does not actually modify the ownership status of the lost item.  Whereas, after hefker, an item is no longer owned by its original ba'al, subsequent to yeiush the item is still legally retained by the owner.  The finder may have the right to acquire it by performing a subsequent kinyan, but the yeiush per se does not reconfigure the ownership of an item.  They each cite the gemara in Bava Kama (66b, mentioned in last week's shiur) as proof to this theory: the gemara asserts that yeiush transforms the ownership only if the finder or current possessor desires the item.  Apparently, yeiush does not automatically alter the ba'alut.  This position would accord with Tosafot's view.  As yeiush functions to annul a chovat hashava (which could, potentially, thwart a kinyan), it does not modify the monetary status of the item as much as it eliminates the chovat hashava removing any potential inhibitors to kinyan.  However, after yeiush, the item is still legally retained by its original owner, even though a future kinyan has been enabled.

          A completely different view is adopted by the Ramban, in his comments to Bava Metzia (26b) - a gemara which discusses the possibility of yeiush affecting a lost item which was originally taken with intent to steal.  If, subsequently, yeiush occurs, the retriever achieves ownership.  This is the impression according to our girsa (version of the text) in the gemara which reads, "Once yeiush occurs, he can no longer fulfill his mitzva of hashavat aveida, for even if he restores the item, the original owner has lost ownership and the finder has acquired it.  Hence, he is merely delivering a personal gift rather than restoring a lost item."  Several Rishonim, uncomfortable with the implication that a post-retrieval yeiush can be effective, alter the reading of this gemara. 

The Ramban, however, always reluctant to ignore an established girsa, maintains our reading and asserts a striking new definition of yeiush – and its limitations.  Typically, post-retrieval yeiush will be inoperative because once the finder lifts the item prior to yeiush, he becomes the object's shomer (guardian) on behalf of the original owner.  The halakhot of hashavat aveida determine that the finder obligated to restore the lost item automatically becomes defined as a legal shomer on behalf of the owner (see Bava Kama 56b).  Consequently, subsequent yeiush will be ineffective, since the item is legally considered located in the house of the owner.  Legally, the holding of the shomer is considered the 'holding' of the original owner.  As long as the item is being watched on the owner's behalf, his abandonment of hope is useless.  Unlike Tosafot, who claimed that post-retrieval yeiush is impeded merely by an irrevocable, halakhic obligation to return an item, the Ramban claims that such delayed yeiush has absolutely no impact from a purely monetary standpoint. As the item is positioned in the legal domain of the owner (through his shomer) and is guarded on his behalf, yeiush is meaningless.  In this exception (Bava Metzia 26b), however, where the finder intended to steal, as he never lifted with intent to fulfill hashavat aveida, he never achieves a status of shomer and subsequent yeiush succeeds in severing the item from the halakhic ownership of the original ba'al.  This explanation presents the following logic for yeiush: it is a process which subverts the status of 'guarded' or 'watched.'  Therefore, it cannot be effective if the item is being watched by another (in this case, a 'standard' finder who intends to return and is thus defined as a shomer).  The Ramban does not positively explain yeiush, but his description of how yeiush fails indicates the function that yeiush serves: it confers upon the object a status of unprotected or unwanted.

A tandem Ramban in Pesachim (4) completes the picture of yeiush according to this view.  As is well known (and has been discussed in prior shiurim), a person can dispense with the violation of owning chametz on Pesach (bal yeira'eh) merely by verbally disclaiming his chametz - bittul.  Many Rishonim debate the mechanism of bittul - some (see Tosafot Pesachim 4b) even likening it to hefker.  The Ramban develops an independent position: even prior to bittul, the chametz is not fully owned from a financial perspective.  Since it is prohibited to eat or derive benefit from chametz, it cannot exactly be defined as something which is owned. How can one own something which he is prohibited from using in any manner?  In fact, the absence of ownership calls into question the very issur of bal yeira'eh: if one does not own it, what is the substance of the issur?  According to the Ramban, the Torah legislates against 'caring' about the chametz.  Even having been legally dispossessed of formal ownership, a person still cares and worries about his chametz.  That caring or concern is prohibited on Pesach.  By declaring bittul, one severs any lasting association with his past chametz; bittul is a manner of renouncing any interest – even non-monetary – in his items.  After describing bittul, the Ramban strikes a parallel to yeiush.  In this instance, as well, the Ramban writes, the lost item is already legally and monetarily severed from its original owner, as it has been displaced from its original physical location.  In this respect the Ramban concurs with the aforementioned logic - to a degree.  Physical possession is a vital component of legal title.  However, even when absent, the caring and concern of the owner still retains a residual legal title and even in the absence of physical possession, the owner still cares about his item and retains the hope of retrieval.  This retention of hope preserves his title as owner and prevents the item from becoming entirely hefker.  Yeiush negates even that final hope and constitutes the final dispossession of the item.  Yeiush and bittul are comparable in that they each operate upon an item which has been monetarily disjoined from the original owner (in the case of chametz due to prohibited use, and in the instance of aveida, due to physical dislocation).  However, as the owner still cares about his item, it still legally belongs to him.  Bittul and yeiush cancel that final caring and render the item completely 'lost.'  Therefore, the original owner no longer violates bal yeira'eh and the finder can acquire the item. 

Unlike Tosafot, who viewed yeiush as a manner of removing a chovat hashava, the Ramban views yeiush as affecting the legal identity of the item.  These dramatically different assertions about the role of yeiush may yield some interesting distinctions about the scope and application of yeiush.  These differences will iy"H be elaborated upon in the next shiur.