The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

 

 

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This shiur is dedicated
in memory of Ephraim and Rachel Rosen z"l.

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REstoring Property to holocaust survivors

Rav Shelomo Levi

 

 

            In this lecture we shall deal with a question that arose already during the Holocaust and then again afterwards, regarding the status of property that had belonged to Jews, whether those who survived the atrocities or those who were murdered. The question that we shall try to answer is whether these Jews still retain ownership over that property, if other people purchased it and are now using it. We shall first provide a brief halakhic overview of the issues relevant to the discussion, and then at the end of the lecture we shall relate specifically to what actually transpired in the Kovno ghetto in this context. Today's study is dedicated both to the six million who were murdered, as well as to those who were plucked out of the fire and managed to survive. Before we begin, it is important to note that the emotional strength of those who survived is no less great than that of those who were murdered. Staying alive required heroic valor and determination based on a sense of mission and faith. Working in impossible circumstances, Jews did everything they could possibly do to ensure the continuity of the Jewish people. In no small measure, the continued existence of the Jewish people in the aftermath of the Holocaust can be credited to these people's efforts.

 

OVERVIEW

 

            Three laws must be considered in connection with the matter under discussion:

 

1)  Ye'ush (despair of property). When a person despairs of his property, a halakhic opening is created that allows others to acquire possession of it. The issue, then, that must be clarified is whether it can be argued that the Jews as a whole fully despaired of the property that they left behind, in which case those who took possession of it acquired it.[1]

 

2)  Zuto shel yam (articles swept away by the rising sea). In certain situations objectively speaking a person's property is regarded as having been removed from his possession, even if he himself did not despair of it. We invoke this rule in situations when the circumstances themselves remove the property from his possession. It must, therefore, be clarified whether property that had been left behind during the Holocaust years falls into this category of zuto shel yam. If that is the case, then even if the owner did not despair of his property, it should be regarded as having been removed from his possession.

 

3)  Conquest of war. Even if Jews did not despair of the property that became lost to them during the Holocaust, and even if the situation does not fall into the category of zuto shel yam, we must still consider the possibility that someone who took possession of the property acquired it, because the Nazi regime had expropriated all Jewish property and permitted its looting.

 

These three questions are relevant if we relate to the issue with the ordinary halakhic tools familiar to us. At the end of the lecture, however, we will see that perhaps the issue should not be addressed with our ordinary tools, for we are dealing with laws that are altogether different from those recorded in the Shulchan Arukh.

 

YE'USH

 

            In general, the law regarding sacred books and other valuable religious objects is that the owner never despairs of recovering his property. Tosafot state explicitly:

 

People do not ordinarily despair of [sacred] books. (Tosafot, Bava Kama 114b, s.v. ha-makir)

 

            Tosafot explain the rationale of this law as follow: A non-Jew has no use for a book like the Rambam or the Ketzot, and so presumably he will sell it to another Jew. That Jew will eventually come to the realization that the book had been stolen and he will return it to its original owner. Thus, the owner will never despair of such property, and will always hope for its recovery. And indeed, the Rema rules, in the wake of Tosafot, that with respect to sacred books there is no ye'ush:

 

And some authorities say that if a person loses [sacred] books, he does not despair of recovering them, even in a place where the majority [of people] are non-Jews. (Rema, Choshen Mishpat 259:3)

 

            Can the law regarding sacred books be applied to property that had been seized during the Holocaust? Responsa Bet Avi discusses the matter and says:

 

Even according to what the Tosafot write in Bava Kama that there is no ye'ush with respect to [sacred] books, because people do not ordinarily despair of books, for eventually they will fall into the hands of Jews… nevertheless, this reasoning does not apply in our case, owing to our many sins… For from the day that the world was created there was never such a terrible decree to destroy, and to slay, and to annihilate all of Israel. Be astonished, O heavens… And in such a situation, if they already despaired of their lives – all the more so [did they despair] of their property! Who would have imagined to think about his home and his property while under the nails of the defiled and abominable enemy in the concentration camps and ghettos? (Responsa Bet Avi, Choshen Mishphat, I, no. 157)

 

            According to the Bet Avi, then, there is a presumption of ye'ush regarding all of the former property of the Holocaust victims. This is for two reasons: First, if Jews despaired of their lives, all the more so did they despair of their property. And second, they clearly did not have their property on their minds while busy with the task of day-to-day survival under the Nazis, and this "lack of regard" is considered like ye'ush. The Bet Avi implies that the law of ye'ush should apply categorically to all of the property that Jews had left behind. The Or ha-Mizrach, however, cites the position of the Bet Avi, and disagrees:

 

It does not logically follow that those Jews who despaired of their lives also despaired of their books… First of all, the Germans concealed their acts and their intentions, and during the time of the killing, it was not known that they had decreed destruction on all of Israel. And even if they knew the enemy's intention, surely Israel is comprised of believers who are sons of believers. Therefore, even those who were being taken out for slaughter, surely believed with all their heart that the Holy One, blessed be He, would keep His covenant with Israel, and that the enemy's plan would not succeed, and that in any event a remnant would survive. This being the case, eventually, when the wicked are destroyed, the books will be returned to Jewish hands. And even if the robbed party himself will be killed, nevertheless, he thought that the books would be returned to his heirs. And in such a case, there is no ye'ush. (Or ha-Mizrach, 120-121, p. 47)

 

            In other words, in many instances the Jews did not know that they were being led to their slaughter, and therefore they did not necessarily despair of their property. And even when they knew that they were soon to die, it is not inconceivable that they thought that eventually their heirs would receive their lost property.

 

The Or ha-Mizrach disagrees with the Bet Avi's first argument, but it seems possible to disagree with his second argument as well. The Netivot discusses the law of ye'ush, investigating the question whether ye'ush requires a positive act, similar to hefker (renunciation of ownership), or whether ye'ush occurs automatically, when the owner ceases to think about his property. If we understand ye'ush as a process similar to hefker, requiring a positive act of despair, then it follows that even if during the Holocaust years Jews did not think about their property, it still does not mean that they despaired of it, for they never performed a positive act of ye'ush.

 

            Moreover, even if we say that ye'ush occurs automatically, and does not require a positive act, we can still disagree with the Bet Avi. The Netivot concludes that ye'ush is not like hefker – and therefore there is no need for a positive act of despair, but rather ye'ush takes place automatically when a person ceases to think about his property. But then he takes this novel idea one step further:

 

Regarding the rule that ye'ush effects a change of ownership, it seems that an article does not leave its [original] owner's possession until it is acquired by another person… This implies that ye'ush is not like total hefker… Thus, if a person despaired of lost property, but the despair ended before the article reached the hands of another person, he is not required to retake possession of it. As soon as he sees it, he acquires it, and nobody else may take possession of it… Since it returned on its own, and the ye'ush ended before it reached the hands of another person, he becomes the owner as at first. (Netivot, 262, no. 3)

 

            The Netivot means to say that since ye'ush is a process that takes place automatically, it may also be undone automatically, no positive act being required. Therefore, even if a person did not think about his property during the Holocaust years, but rather was busy with the task of staying alive, as argued by the Bet Avi, nevertheless after the war was over, he surely thought again about his property, and presumably tried to recover that which had belonged to him. Thus, even if during the war he had despaired, after the war that ye'ush ended, the property once again became his, and whoever took possession of that property after the war should be required to return it to its original owner.

 

            Summarizing what we have seen thus far, it seems that it is impossible to make a sweeping statement and say that everybody living through the Holocaust despaired of his property, but rather each individual case must be examined on its own merits.

 

ZUTO SHEL YAM

 

            The Gemara in Bava Metzi'a 24 brings the law of zuto shel yam (articles swept away by the rising sea), saying that lost property that cannot possibly be recovered by its owner is automatically regarded as ownerless, so that its finder acquires it. The Rambam relates to the issue, ruling as follows:

 

Beams, stones, wood, and the like that were swept away by a river – if the owner despaired of them, they are permitted [to the finder]… If he does not know whether or not [the owner] despaired, he is obligated to return them… Therefore, one who rescues [an article] from a river or a rising sea… if he knows with certainty that the owner despaired, it is his, but if he does not know [this], he must return it. (Rambam, Hilkhot Gezela va-Aveda 6:31-2)

 

            In other words, according to the Rambam, the law of zuto shel yam is based on ye'ush. If the owner did not despair of recovering his property, it still belongs to him, even if it fell into "a rising sea." The Rosh, however, disagrees:

 

"And Rabbi Shimon ben Elazar also used to say: Someone who rescues [an article] from a lion, or from a bear… or from a rising sea… and someone who finds an article on a highway or a large public square, or in any place where many people are found – these are his, because the owners give up hope of them." The words "give up hope" refer to the highway and the large public square. But as for the others, even if he stands and shouts, it is as if he were shouting about his house that had collapsed. (Rosh, Bava Metzi'a 2:6)

 

            The Rosh means to say that in the case of "a rising sea," even if the owner shows no sign of despair, but on the contrary he shouts that his property should be returned to him, it is "as if he were shouting about his house that had collapsed," and he loses possession despite his objections. Following the Rosh, the Tur rules:

 

Someone who rescues [an article] from a lion, or from a bear, or from a rising sea… these are his, even if the owner stands there and shouts. (Tur, Choshen Mishpat 259)

 

            According to this, we might conclude that even if a Jew did not despair of recovering the property that he had owned prior to the Holocaust, and he is still looking for it, the property is removed from his possession against his will. Indeed, a story is related about the Rebbe of Gur, who survived the war and refused to accept property that had been returned to him, for he argued that following the Holocaust all of his property was hefker, and he did not wish to live on gifts!

 

            The Seridei Esh relates to this argument and says:

 

I am in doubt whether this [situation] can be likened to "zuto shel yam," for it is known that the wicked people, may their names be wiped out, removed all the books from libraries and put them in guarded places… And we never gave up the hope that all wickedness would vanish like smoke, and the rule of tyranny would be abolished. And see Rema, that regarding [sacred] books there is no ye'ush. (Responsa Seridei Esh, I, no. 147).

 

            That is to say, the Nazis often kept the property that they had looted in well-guarded places, and so the property cannot be regarded as having been rescued from "a rising sea," and thus there is an obligation to return it. The Imrei Yosher (I, no. 59) deals with a similar question regarding sacred books during the First World War. According to him, even if an edict had been promulgated, as long as the property is not actually in the hands of the Russian soldiers, it is not governed by the law of "zuto shel yam."

 

CONQUEST OF WAR

 

            The Gemara in Gittin 38a states that a non-Jew can acquire a non-Jewish slave through chazaka (physical taking of possession). Rashi explains:

 

With chazaka – For example, a captive whom he took physical possession of, and acquired based on a presumption of ye'ush, when his master renounced ownership of him after having despaired of recovering him. (Rashi, ad loc., s.v. be-chazaka)

 

            Tosafot cite Rashi, but disagree:

 

Rather, we must explain that here we are dealing with the chazaka of the conquest of war.

 

            According to Tosafot, we are not dealing here with a kinyan that is performed after ye'ush, but rather with the conquest of war. A conquering force acquires the property of the vanquished even without the ye'ush of the individual owners. Following Tosafot, it may be argued that in our case as well, since all the crimes were committed by governmental order, Jewish property was expropriated, so that whoever took possession of that property acquired it. Indeed, we find a similar ruling in the responsa of the Rambam:

 

Question: What does our master say regarding one who purchases sacred books from looters… Does he acquire them or do we compel him to return them?…

Answer: If the looting was done under the order of the Sultan, he acquires it. (Rambam, Responsa, no. 209)

 

            Near the Zion Gate in the Old City of Jerusalem there is a place called "David's Tomb." Today it is rarely visited, but before the Six-Day War, it was the closest place to the Old City accessible to Jews, and so many Jews would go there on the holidays and throughout the year. One day, a Jew arrived and noticed a Torah crown on one of the Torah scrolls, and he identified it as a Torah crown that had belonged to him but disappeared during the Holocaust years. He brought witnesses who testified that indeed the Torah crown had been his, and demanded of those in charge of the tomb that it be returned to him. The tomb's caretakers argued that even if the crown had once belonged to that person, it was now in their possession, and they were under no obligation to return it. The case was brought before a rabbinical court comprised of Rav Elyashiv, Rav Zolti and Rav Adas, and a full record of their deliberations is recorded in Sefer Piskei ha-Din. The dayanim addressed the issue of conquest of war, and concluded that this law is restricted to a legal government that demonstrates concern about its citizens. But a wicked government – one that not only is unconcerned about the welfare of its citizens, but systematically annihilates them – does not have the status of a legal government, and its actions have no validity regarding the law of "conquest of war."

 

BEYOND THE LETTER OF THE LAW

 

            Regarding the law of ye'ush, the aforementioned dayanim inclined to say that according to the strict law any Jew who survived the Holocaust is presumed to have despaired of his property, so that whoever took possession of it, acquired it. They note, however, that another factor must be taken into consideration. The Shulchan Arukh deals with the issue of ye'ush, and rules:

 

Even though by right, in a place where the majority are non-Jews, even if a Jew provides an identifying mark, [the finder] is not obligated to return [the lost article] – it is good and right to go beyond the letter of the law and return [the article] to the Jew who provided the identifying mark. (Shulchan Arukh, Choshen Mishpat 259:5)

 

            The Rema issues a similar ruling:

 

[Even though ye'ush effects a change of ownership], nevertheless it is good and right to return [lost property]… Even though by right one is not obligated to return such lost property, if the king or the court issued a decree, he is obligated to return it based on the rule that the law of the country is binding. (Rema, Shulchan Arukh, Choshen Mishphat 259:7)

 

            Elsewhere, the Rema adds:

 

It is customary today to return all stolen property, even after ye'ush and a change of possession, based on the rule that the law of the country is binding. (Rema, Choshen Mishpat 256:7)

 

Thus, the rabbinical court concluded that even if according to the strict law the tomb authorities were under no obligation to return the Torah crown, they should however go beyond the letter of the law and do so. This is particularly true in light of the words of the Rema that today it is customary to return any article, when the owner's identity is known, based on the rule that the law of the country is binding.

 

            According to this, it would seem to be clear that, in actual practice, any property lost during the Holocaust period should be returned to its rightful owner. It should, however, be noted that the obligation to return lost property "beyond the letter of the law" is not at all simple. The Shakh deals with the Rema's ruling and says:

 

Even though I have demonstrated at length that we do not invoke the rule that the law of the country is binding when that law is against the law of our Torah, nevertheless we rule in that manner, because "it is customary today," that is to say, even among Jews that is the custom… And even though we do not follow a bad custom that is against the law of the Torah… it may be suggested that this custom was enacted in this way, and surely [every] generation has the authority to enact enactments. (Shakh, Choshen Mishpat 256, no.10)

 

            The Ketzot, however, disagrees:

 

It appears, however, that this is not a bad custom, but rather a good and right custom. For they said in the Gemara that lost property is returned [even] after ye'ush, beyond the letter of the law. And this is because of the law of "You shall do that which is right and good" (Devarim 6:18). And similarly in a case of ye'ush and a change of possession… Therefore, when the sages of the generation saw [fit] to enact that a person should return [a lost article] after ye'ush, it is not a bad custom, God forbid. (Ketzot, 259, no. 3)

 

            We see then that the Shakh and the Ketzot disagree about returning stolen property after ye’ush, whether it is a virtuous act going beyond the letter of the law, or whether it is a "bad custom" stemming from “a law of the country” which does not correspond to Halakha. In our context, this disagreement seems to have very significant ramifications: According to the Ketzot, who maintains that the obligation to return the stolen article stems from "acting beyond the letter of the law," there are cases where Halakha instructs a person to act in accordance with the dry law. According to the Shakh, on the other hand, even though we are talking about a bad custom, nevertheless one is obligated to follow it, for we are dealing with "a law of the country" which even the Jews are accustomed to follow. According to the Ketzot, then, in the case under discussion, if the caretakers of David's Tomb would not wish to return the Torah crown to its former owner, they could not be compelled to do so, "beyond the letter of the law." Indeed, the dayanim referred to this disagreement in the course of their deliberations, and in the end they ruled in accordance with the Shakh, and thus forced those in charge of the tomb to return the Torah crown to its original owner.

 

"Not everything is Halakha"

 

            Thus far we have examined the issue of Jewish property lost during the Holocaust years with halakhic tools. As we noted at the beginning of the lecture, however, not everybody agrees that these are the proper tools with which to analyze the problem.

 

            The circumstances in the Kovno ghetto were very difficult. It was not a concentration camp, but conditions were still exceedingly difficult, and every day, people would die of hunger, cold, and disease. Monetary assets were of great importance in the ghetto. In order to survive, a person needed certain things, e.g., food and clothing, which could only be acquired with money. A question arose in the ghetto what to do with the property of those Jews who had already died. Was it permissible, for example, to take the blanket of a Jew who had been murdered, in order to save himself from the freezing cold? What was the status of the property of Jews who were no longer numbered among the living? The custom in the ghetto was that the heirs of the deceased received the property. In the event that there were no heirs, whoever came first acquired the property. This practice, however, was not accepted by all. One of the leading Lithuanian Torah authorities who was living in the ghetto ruled that a person was forbidden to take the property, for the deceased may have heirs outside the ghetto, to whom the property passes as an inheritance. That authority is reported to have acted for himself accordingly, despite the fact that the other rabbis living in the ghetto were of the opinion that in the absence of heirs living in Kovno, anyone may take of the property.

 

            This issue is discussed in Tzohar, 20, where a third opinion is also brought – that of Rav Gibraltar, who also lived in the ghetto. He argued that not only was it permissible to use the property of Jews who had already died, but even the Jews who were still alive in the ghetto were no longer to be regarded as the owners of their property. Rav Gibraltar explained that when people's lives are hefker, their property is also hefker. A person can only enjoy "ownership" when that ownership has meaning. When, however, a person could be killed at any given moment, and it would not bother anybody, and nobody would have to give an accounting, then it is meaningless to say that he is the owner of property. We are not talking about property of which the owner had despaired, for even the shirt that he is wearing or the money in his pocket can no longer be regarded as being in his possession. When you are a nothing, you cannot be an owner of property. Rav Gibraltar’s final conclusion was that it was forbidden to take the property of someone who was still alive in the ghetto, but this is only because of a concern about piku'ach nefesh (saving lives), and not because that person is still considered as the owner of the property.

 

Despite the great novelty of Rav Gibraltar's position, he claimed that he was merely following a ruling of the ghetto's halakhic authority – Rav Avraham Shapira, author of the Devar Avraham. Rav Shapira had ruled on a case in a small town near the ghetto, called Yanova, where non-Jewish partisans were living in close proximity to Jews. One day the partisans decided to kill all the Jews, sparing only 350 of them, and demanding a ransom in order to permit them to enter the ghetto, or else they too would be killed. (How bad must the situation have been in that town, if the community’s "salvation" lay in entering the ghetto!)

 

In any event, the rabbi of Yanova, Rav Ginzburg, arrived in the ghetto, and pleaded with its residents to provide the money with which to pay the ransom. As explained earlier, money was of vital importance in the difficult conditions of the ghetto. The Kovno Jews, therefore, turned to Rav Shapira to ask him whether they were obligated to contribute. Rav Shapira ruled that at first glance the case was similar to the famous case of the jug of water, regarding which Rabbi Akiva had ruled "Your life takes precedence over the life of your neighbor." He argued, however, that the situations are really not the same, because in the Kovno ghetto even if you have money, there is no guarantee that you will survive. If a person survived, it was only because of a miracle. Money, therefore, had no real importance, and so it would be preferable to use it to ransom the survivors of Yanova. Rav Gibraltar understood that according to Rav Shapira the principle that "your life takes precedence over the life of your neighbor" is only valid when the water belongs to you, but in the ghetto, there was no ownership of property, and so the argument of "your life takes precedence" does not apply.[2] It should be noted that Rav Gibraltar, after having survived the Holocaust, remained true to his ruling, and refused to accept payment for loans that he had extended before the Holocaust, arguing that during the Holocaust all of the debts were cancelled.

 

SUMMARY

 

We have seen two possible ways of relating to Jewish property that had been stolen during the Holocaust. The prevalent opinion is that while according to the strict law, Jews despaired of their property and their ownership lapsed, one should, however, return their property as an act of grace beyond the letter of the law. There are, however, those who maintain that all the ordinary halakhic principles are inapplicable, for at the time of the Holocaust, all Jewish property became ownerless, and thus there is no obligation to return stolen property to its original owners.[3]

 

FOOTNOTES:

 

*This lecture was delivered this year on Yom ha-Sho'ah, and the summary was reviewed by Rav Levi.

 

[1] It should be noted that if the original owner did not despair, and the property was taken from him by force, then even if afterwards he despaired from recovering it, it stands to reason that the ye'ush does not effect a change in ownership. For the general rule is that in a case of theft, ye'ush does not effect a change in ownership. Even in a case of theft, however, one may acquire the property if it had been sold or given to a third party, for ye'ush and a change of possession do effect a change in possession even in a case of theft. Thus, even in this context, the issue of ye'ush is important.

 

[2] Obviously, this is not the only possible understanding of the words of the Devar Avraham. His ruling may be understood most simply as an emergency measure taken in order to save Jewish lives. Nevertheless, we can see how acceptable Rav Gibraltar's interpretation of that ruling was in the ghetto.

 

[3] It should be noted that those who say that the property should be returned are talking about returning the property to the owner himself. Returning the property to the owner's heirs is a more complicated issue that we have not dealt with in this forum.

 

(Translated by David Strauss)