Print this Article
By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
The Case
In search of a special Etrog for Sukkot, Mr. Cohen visited the famous Arba’at HaMinim market in Jerusalem’s Me’ah She’arim district. At one of the stalls he found two beautiful looking candidates between which he could not decide. He asked for permission to show the two Etrogim to his rabbi and the stall owner agreed, without taking a deposit.
The line of people waiting to show their Arba’at HaMinim to the rabbi was long, and by the time Mr. Cohen’s turn came, it was late at night. The rabbi studied both Etrogim carefully and advised Mr. Cohen to buy neither, but to continue in his search for an Etrog that befits his strict standards.
Mr. Cohen was too tired to return the Etrogim that evening and went home, leaving them on a side table. The next morning, Mr. Cohen was in a hurry to get to work, and asked his wife to return the Etorgim to, and I quote: “the second stall on the left”. Mrs. Cohen did as she was told, and the stall owner gladly accepted the Etrogim and put them together with the rest of his merchandise.
What Mrs. Cohen did not know was that there are two entrances to the market. Mr. Cohen had given directions from the northern entrance, while Mrs. Cohen had entered from the south. The result of this confusion was, of course, that the Etrogim were returned to the wrong stall!
By the time Mr. And Mrs. Cohen realized their mistake, it was Erev Sukkot and the market was closed.
The Question
It is well known that on the first day of Sukkot, it is a halachic requirement that all the Arba’at HaMinim are the property of the person using them, and even a borrowed Etrog is not sufficient; certainly not a stolen one.
Did the two Jews who bought those two incorrectly returned Etrogim fulfill their obligation, as they were, albeit unintentionally, stolen property?
The Answer
Yes, they did fulfill their obligation. Maran rules in Hoshen Mishpat[1] that the purchaser of stolen property is not required to return the property to its owner until the owner refunds him the sum he paid, which the owner may then claim back from the thief.
A Rabbinic Kinyan for a Torah Obligation
Even though, according to the strict letter of the law (De’Oraita), the property must be returned to its owner, and it is the unfortunate buyer who should have to find the thief in order to get his money back, our Sages enacted that the buyer must be refunded by the owner.
This is to ensure free trade in the market place without buyers fearing that the property they are buying is stolen, and may be taken from them by the owner, leaving them with a loss out of pocket. This enactment only applies where the buyer unknowingly bought stolen property from someone who does not have a reputation as a thief.
There is a question as to whether this Rabbinical enactment makes the item the actual property (De’Oraita) of its holder or not. If it does, then the people that bought these two Etrogim will fulfill their obligation, while if it does not make them the owner of the property, they will not have fulfilled their obligation.
It would seem that the answer to this question hinges on an argument between the Maran in the Shulhan Aruch and other authorities[2] as to whether a man can use a Rabbinically enacted transaction – Kinyan (i.e. ma’amad sheloshtan) to effect a Kiddushin. The opinion of the Shulhan Aruch is that he can, while others rule that he cannot.
Therefore, in our case, according to Maran, the buyers of these two Etogim are the actual owners and will fulfill their obligation, while according to the others, they are not the owners according to Torah law, and will not fulfill their obligation of Arba’at HaMinim with these Etrogim.
However, there may be another reason why the buyers fulfilled their obligation in this case.
Free Trial
The Shulchan Aruch rules[3] that a potential customer who is permitted by the seller to take merchandise home to show someone else bears full responsibility for the item while on his way home, responsible for any damage to the merchandise, even if caused by extraordinary circumstances (oness).
If he decides to buy the merchandise, where the price has been fixed, it becomes the buyer’s property immediately. If he decides not to buy the merchandise, his responsibility is, according to one opinion, that of a Shomer Hinam – an unpaid guardian – responsible for his negligence alone. According to other opinions, he is regarded to be a Shomer Sachar – a paid guardian – responsible for loss and theft as well as negligence. Both opinions are brought by the Shulhan Aruch, but with no clear ruling between them.
However, in our case, it makes no difference, as it was certainly negligent on Mr. Cohen’s behalf not to ensure that the Etrogim were returned to the correct stallholder! Giving them over to his wife, however, was not negligence, as the Shulhan Aruch rules[4] that one generally deposits with the understanding that the guardian’s wife and/or grown up children will be responsible at times for the property. So too, to claim that it is his wife who has to pay is irrelevant, as a husband is responsible for his wife’s debts in such a case.
Nevertheless, since there is a clear obligation on Mr. Cohen to pay the owner of the Etrogim, even though his identity and whereabouts are unknown right now, the halachic status of the two Etrogim, wherever they are, is that of Hefker (ownerless) and not stolen property.
The owner of the stall to whom they were returned, therefore, acquired them as his property when they were mistakenly given to him, and the buyers, too, became the legal halachic owners upon payment. Therefore, they have fulfilled their halachic obligation of Arba’at HaMinim according to all opinions.
Sources:
[1] 353:3
[2] Even Ha’Ezer 28:13, see Bet Shemuel 32
[3] Hoshen Mishpat 200:11
[4] Hoshen Mishpat 294:24