SALT - Monday, 29 Tishrei 5779 - October 8, 2018

  • Rav David Silverberg
            In commanding Noach to construct an ark and make preparations for the flood, God instructs, “Kach lekha mi-kol ha-okhel asher yei’akheil” – “Take for yourself from any kind of food which is eaten” (6:21) to sustain himself, his family and the animals during the flood.  Rav Efrayim Luntshitz, in his Keli Yakar, notes that the phrase “kach lekha” (“take for yourself”) in other contexts indicates specifically something which one personally owns.  As an example, Keli Yakar points to the well-known requirement that one must own the four species in order to fulfill the obligation of waving the species on the first day of Sukkot.  This is inferred from the Torah’s formulation in issuing the command of the four species – “u-lkachtem lakhem” (Vayikra 23:40), as the word “lakhem” implies ownership.  Similarly, Keli Yakar suggests, when God commanded Noach to prepare food for the ark with the term “kach lekha,” this meant that Noach needed to store specifically food which he owned.
            Keli Yakar explains that conceivably, Noach was not capable of legally obtaining the enormous quantity of food he would need for his family and for the animals throughout the period they would be spending in the ark.  Therefore, he might have justified stealing food from other people just prior to the flood in order to bring it into the ark.  After all, as these people and all their belongings would imminently be destroyed by the flood, their possessions – perhaps – were to be legally considered ownerless.  God therefore emphasized to Noach that he was to take only the food that he was capable of obtaining through legal means, and this food would miraculously suffice to sustain him, his family and the animals aboard the ark.
            Rav Yitzchak Zilberstein, in his Chashukei Chemed (Bekhorot 13b), cites Keli Yakar’s comments in reference to the question as to whether one may take something belonging to somebody who is about to be killed and his possessions seized.  The specific case under discussion is the tragic situation that arose during the Holocaust of Jewish inmates who sought to take possessions belonging to their fellow Jews who were being led to the gas chambers.  Could the victims’ possessions be considered ownerless even before their deaths, once it became clear that they were about to be killed and their possessions seized by the Nazis?  Keli Yakar’s remarks seem to suggest that one may not take people’s property even if he knows for certain that it will imminently be lost or destroyed – as Noach was not entitled to his contemporaries’ food despite having been told by God that they and their belongings were about to be annihilated by the flood.
However, Rav Zilberstein dismisses this proof, noting Rashi’s comments (7:13) that God began the flood with light rain, hoping that the people would repent and avert the catastrophe.  This demonstrates that even when the rain was falling, the generation’s fate was not yet sealed, and the possibility of the generation’s survival remained open.  Therefore, Noach’s being barred from taking his contemporaries’ possessions does not necessarily prove that one may not take the possessions of somebody whose property is certain to be taken, as was, tragically, the case in the situation described earlier of Jews being led to the gas chambers during the Holocaust.
            Indeed, as Rav Zilberstein proceeds to cite, the Gemara in Masekhet Bava Kama (115b) addresses the case of an “anass” – an armed official – who approaches a person to confiscate something belonging to him, and states that already at that point this person is not considered the owner over the money that is about to be taken from him.  The Gemara rules that if, during those moments before the money is stolen, the individual pronounces the transfer of the sanctity of his hallowed ma’aser sheni produce onto this money, his pronouncement is ineffective.  Based on the Netivot Ha-mishpat (361:2), Rav Zilberstein explains that when it becomes certain that one is about to lose something, he already despairs at that moment, and that possession becomes ownerless.  As such, the money in this person’s possession is not legally considered his property.  When there is hope for future legal recourse or other means of retrieving the item or money in question, then the individual retains legal ownership, but once it becomes perfectly clear that the item will be permanently seized, it is ownerless at that point.  Thus, in the tragic case of people being taken for execution, it would, seemingly, be permissible for others to take their possessions, which are already deemed ownerless.