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By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
A newly proposed Senate bill, aimed at making it easier for the victims of plundering by the Nazis to regain their stolen property, raises a fundamental question for Batey Din across America.
Fixing the Markets
In Jewish law, the buyer of moveable property, be it a painting, a car or a Kiddush cup, that turns out to be stolen, is protected[1].
As long as the buyer did not purchase the property in question from someone who was known to be a thief, our sages made a special enactment – Takanat HaShuk – to protect him and safeguard the marketplace.
Before this Takana was enacted, the opinion of Maran is that the buyer of stolen property of which the owner has already given up on, must return the monetary value of that property to the owner, and it is he, the buyer, who must then find the thief, or whoever sold him the property and reclaim his loss from them.
The Rama disagrees, arguing that the buyer does not have to return even the monetary value to the owner, as long as the owner gave up hope of getting his property back before it was sold. If the property was first sold, and only subsequently the owner gave up hope of getting it back, the property itself must be returned to the original owner.
Our Sages, worried about the hardship this would cause to an operational market, as buyers would hesitate to purchase merchandise that may subsequently turn out to be stolen, enacted that anyone who buys merchandise which is subsequently proven to be stolen is not required to return the merchandise or its value to its owner until he, the buyer, is refunded by the owner the sum paid by him to the thief (or whoever he bought it from). It is then the responsibility of the owner to reclaim his money from the thief.
Exceptions to the Rule
Our sages added that this Takana would only apply where the buyer did not buy from a known thief. If he did, he is offered no protection by this Takana.
However, the Rama rules[2] that if the law of the land (Dina D’Malchuta) requires the buyer to return the stolen property itself, without being reimbursed, then we would follow the law of the land.
Accordingly, it would seem that on the passing of this new Senate bill, and it becoming the law, in the case of a Jewish buyer of artwork which turns out to have been plundered from a fellow Jew by the Nazis, even if the buyer did not buy the painting from the Nazis themselves but from a reputable source, the painting itself must be returned without reimbursement (if that is the effect of this bill), even though according to the Halacha, the buyer does not have to do so.
Let’s examine if this really is the case.
Law of the Land
The Shulhan Aruch rules that the principle of Dina D’Malchuta – following the law of the land – applies only to matters pertaining to transactions between a citizen and the government, but not to dealings between two Jews. This would include, for example, all tax laws and all criminal cases, as the state is a party to the prosecution, but would exclude civil disputes, such as disagreements between two neighbors or businessmen, as the government is not a party at all.
The Rama cites the opinion that Dina D’Malchuta also applies to disputes between two Jews, where the governmenty is not involved[3].
However, the Hazon Ish rules[4] that since the law in almost all civilized countries allows two citizens to solve their civil disputes in arbitration according to whatever rules they wish, any two Jews who have a dispute to which the government is not a party, are obligated, even according to the opinion of the Rama, to solve it according to Torah law, and not according to Dina D’Malchuta.
The exception to this rule will be where the law has become the accepted practice amongst all, and is now the accepted custom in the market place. In such a case, the accepted practice overrides the Halacha. [A common example of this is severance pay, which while having no source in Jewish law, is awarded by Bet Din, as such is the accepted custom.]
It is important to point out that even in cases where Dina D’Malchuta does apply, that does not mean that the case may be judged in a secular court, but that Bet Din will rule in accordance with the law of the land.
The ramifications of this Halacha are that where a Jewish art collector is taken to Bet Din by the Jewish owner of the painting, from whom it was plundered by the Nazis, even after the introduction of the new law, Bet Din will rule that the owner must reimburse the art collector the sum he paid for the picture.
Only when this new law becomes accepted practice will it be applicable, and until then, any two Jews who have such a dispute must solve it in accordance with Torah law.
Various Other Scenarios
All the above only applies to a case where the property was stolen. Where it was extorted, for example, where a valuable painting was given to the Nazis in exchange for an exit visa, the Halacha would be different, and will be dealt with in a separate article.
The above is also only applicable in the case of moveable property that was stolen. Where real estate was stolen the Halacha is different as well.
Where the plundered property is found in the possession of a non-Jew, the Halacha would also be different, as the non-Jew is obligated by the law of the land in all cases, and the Halachic question this raises is whether or not a Jew can claim from a non-Jew compensation that is not due to him according to Torah law.
Where the plundered property is found in the possession of a Jew who does not accept the authority of Bet Din too, the Halacha will be different, as in such a case there is another fundamental question as to whether a Jew can take from another Jew a payment which is not due according to Torah law.
All of these scenarios will be discussed in a future article, Be’Ezrat Hashem.
To conclude, it should be mentioned that it could be argued that all buyers of Judaica, especially in Europe, are not protected by our Sages’ takana, as they should have taken into account that the property may have been plundered by the Nazis from a Jew, even where the seller is a reputable dealer.
A great Rabbi was once offered a walking stick, reputed to have belonged to Rabbi Akiva Eiger זצ”ל, but he refused to accept the gift as, and I quote “it’s probably stolen property”.
Sources:
[1] Hoshen Mishpat 353:3 [2] Ibid. 356:7 [3] Hoshen Mishpat 369:8 [4] Likutim 16