Yeiush (III)

Having described two vastly different approaches to the effectiveness of yeiush, this shiur will explore some of the ramifications of this question.  By probing some unique manifestations of yeiush, we might locate examples which would both sharpen and reflect the previously stated positions. 

          What would happen if a person retrieved an item prior to yeiush and subsequently transferred the item to another person?  Clearly, the first individual cannot acquire the item, since he lifted it prior to yeiush and we apply the principle of 'issura ati le-yadei' (see the previous shiur).  Whether this expresses the emergence of a halakhic responsibility to restore the item which impedes any kinyan (Tosafot), or the activation of a status of shomer which renders yeiush pointless (Ramban), it is unquestionable that the initial taker cannot achieve ownership.  But can the second person acquire ownership over the item if the yeiush occurred while he holds the item in his possession?  This issue is addressed in a commentary originally attributed to the Ritva. (An edition of 'the Ritva's commentary' on Bava Metzia, clearly written by someone else, was credited to the Ritva and included in the complete works of the Ritva on shas.  Presumably, the authentic commentary of the Ritva, which was discovered only around one hundred years ago, was unavailable and the editor of the classic edition of Ritva on shas inserted this alternate commentary as a substitute.  We b"H have retrieved the legitimate Ritva, which is available primarily in the yellow Mossad Ha-Rav Kook edition, and usually refer to the original commentary as the "meyuchas le-Ritva" – the work attributed – falsely - to the Ritva.  Though the true author of the "meyuchas le-Ritva" remains unknown, he appears to have been a talmid of the Ra'avad, or at least someone operating within the Italian tradition.  This speculation stems from inspecting the personalities he quotes and the positions he generally adopts.)  This commentary claims that pre-yeiush retrieval can never enable acquisition of the item, regardless of who is attempting that appropriation.  By contrast, the Shitta Mekubetzet (in his commentary to a mishna in Bava Metzia 26b) quotes a 'gilyon' (a commentary originally inscribed on the margin of a gemara) suggesting that pre-retrieval yeiush will inhibit acquisition by the finder, but will not impair such efforts by someone who purchased the item from the finder.  Presumably, this debate evolves from the fundamental dispute between the Ramban and Tosafot.  Undoubtedly, the Ramban would agree with the position of the gilyon, that the second individual may proceed with his kinyan.  Whereas the first person was impeded because of his status as shomer, the second person, who never occupies this office, can enjoy the benefits of yeiush.  Tosafot, however, in asserting that the second person, too, is prevented from consummating a kinyan, might reason that since the item was retrieved by someone prior to yeiush, the chovat hashava (obligation to restore the object) already emerged, preventing any kinyan from being performed upon this item.  Tosafot might agree with the position developed by the "meyuchas le-Ritva," while the Ramban would clearly adopt the position of the gilyon (cited in the Shitta Mekubetzet). 

          Another question surrounds an avieda which arrived - prior in a person's reshut without his knowledge.  The Rishonim consider a situation in which an aveida is lost in a person's chatzer (yard) without his knowledge.  As the item arrives in the chatzer prior to yeiush, we might apply the principle of issura ati le-yadei and prevent the owner of the chatzer from subsequently acquiring it after yeiush.  Should the fact that he was unaware of the item's placement in any way mitigate the circumstances and allow the acquisition? The Rashba, in his comments to the mishna (25b), and the Ra'avad, in his comments to the Rambam (Hilkhot Gezeila Ve-aveida 16:4), both consider this an example of issura ati le-yadei: since the finder 'received' the item before yeiush, he can no longer perform a kinyan.  He is withheld even though he had absolutely no knowledge about the item's whereabouts.  The Rambam disagrees, and, barring any other disqualifying factors, would allow the owner of the chatzer to perform a subsequent kinyan.  Perhaps this debate is influenced by our larger question.  If the kinyan inhibitor is the retriever's status as shomer, it is inconceivable that he can attain this status unwittingly.  Hence, the Ramban would agree with the Rambam, who allows for a kinyan in such a case.  Since, in general, the status as shomer prevents any subsequent kinyan, an unknowing retriever, as he is not defined as a shomer, should not be obstructed from performing a kinyan.

If, however, the impediment to the kinyan is the chovat hashava, which takes effect once the item is taken by another, we might agree with the Rashba's and the Ra'avad's ruling that as soon as the item arrives in the chatzer, a chovat hashava has emerged.  True, the owner of the chatzer is unaware of the obligation and cannot execute it without such knowledge.  However, from a theoretical standpoint, once the obligation evolves, the object can no longer be acquired; one cannot establish ownership over an object which carries an obligation to return.

          As discussed in the previous shiur another interesting ramification of the nature of yeiush concerns the status of the item subsequent to effective yeiush.  Is a post-yeiush item legally severed from the ownership of the original ba'al? Or, does yeiush merely create a dynamic which allows acquisition without canceling the previous ownership? Generally, items which are owned are non-acquirable by another without consent of the owner.  Yeiush might invite acquisition without actually suspending the original ownership status.  If (as stated in a still earlier shiur) yeiush is based upon hefker, certainly the effect is one of ba'alut revocation.  However, if yeiush works independently of hefker, does it succeed in nullifying the original ownership?  Both the Netivot (262) and the Ketzot (406) claim that yeiush does not alter the ba'alut, but merely creates a state which allows subsequent kinyan.  From the Ramban's comments both in Bava Metzia (26, in his commentary, Milchamot Hashem) and in Pesachim (4), it is apparent that yeiush does indeed transform the ownership, and logically, the Ramban's position seems consistent.  Yeiush finalizes the process of severance which began when the item was physically dislocated.  The original dislocation damaged the ba'alut, but as the owner still cared for, and hoped to retrieve his lost item, the ownership was not entirely cancelled.  Abandonment of hope conveys a full status of "avud" (the actual language employed by the Ramban in Pesachim) of a lost item without the retention of any ownership rights.  Presumably, the Ramban would disagree with the Netivot and Ketzot.  Undoubtedly, Tosafot's version of yeiush would be more congruous with the position that a post-yeiush item is still legally 'retained' by the owner.  Since the yeiush only revokes a chovat hashava and makes it possible to acquire an item, it is fully feasible that the item has not been legally removed from the original owner's possession merely after yeiush.