The series of thefts was discovered in shul. One woman, a math teacher, decided to bring up the bizarre theft.
“It was the strangest thing. At first I didn’t take notice of it, but something looked different. And then I realized! Someone had taken my ___________!”
“Really? The very same thing happened to me!”
What was it that was stolen? House break-ins, cars or bicycles, no doubt?
No, this time it was flower planters, the type that one can sometimes purchase on sale at Costco for $15, but generally sell for $30 to $60. Some were annuals, such as petunias and marigolds; others were perennials and some were biennials. No distinctions were made, no home immune—all types of flower pots were stolen.
At first the reaction was, “Who in their right mind would steal flower pots?” One mother of four said, “I thought people who care about their garden are nice people. I cannot imagine them stealing!”
Neighbors and friends started talking. The realization soon crept in that some vast conspiracy or criminal plot was afoot—to deprive homes of their flower planters. After an inquiry was sent to members of one particular shul as to who was affected by the recent thefts—over 40 emails were sent in response.
Neighbors joined together. A group of people met with representatives from the police department at the station.
After the meeting, one of the victims unraveled the mystery.
Apparently, an enterprising individual with no qualms about stealing, opened up shop in the older part of the city, with a wide-ranging assortment of planters. The victim had spotted her very own planter!
Buying the Merchandise
But what is the halacha if someone else had purchased one of these planters from the enterprising businessman?
Do the new purchasers have to pay the original owner if the original owner is found? Do they have to return the planter? And finally, if you see your own planter—can you steal it back?
In order to understand the various opinions on the matter, there are three terms with which we need to familiarize ourselves:
The first term is “yiush,” the giving up of hope. Did the owners give up hope on their perennials or annuals, thinking that they will never see the poor flowers and their pot again?
The second term is “shinui reshus,” a shift in location. This term refers to the shift in the location of the stolen item from the possession of the thief to the possession of the purchaser.
The third term is “ganav mefursam,” a famous and known robber.
Debate Between Ramban And Rambam
There are three halachic positions in regard to the matter.
The Ramban (Nachmanides in Milchamos 114a “Taida”) is of the position that the purchasers are the owners of the flowers when both yiush and shinui reshus occur. The Ramban is of the opinion that it is the yiush which affects the transfer of ownership. If the owner did not give up hope then the purchaser must return the item.
The Rambam (Hilchos Genaiva 5:3) is of the opinion that it is the location transfer that affects the change in ownership. However, there is a technicality—a condition that it will only be effective if the item’s original owner underwent yiush—if he gave up hope on ever having his item retrieved. The difference between the Ramban’s position and that of the Ramban lies in when the yiush occurred. According to the Rambam, if the yiush occurred even after the purchaser bought the item—the change in ownership is officially considered to have transpired.
According to the Ramban, if the yiush occurred after it came into the purchaser’s hands it is ineffective. The Shulchan Aruch in Choshen Mishpat 353:3 rules in accordance with the opinion of the Rambam.
There is also something called “takanas hashuk” which means a special enactment that the Rabbis made in order to maintain market stabilities. The original owner is allowed to take back the item from the new purchaser if he gives him back what he had paid for it from the thief. If not, then people would be very wary of buying things.
“Takanas hashuk” does not apply under all circumstances. If the thief was a famous and known robber then the purchaser must return the value of the item without being compensated for it. The rationale is that he should not be rewarded for dealing with a known thief.
Taking It Back Yourself
What about the question of taking back the planter? One of the residents discussed above did, in fact, spot her planter.
To answer this question we must turn to an earlier section of the Shulchan Aruch.
There is a concept discussed in the Halacha (See Shulchan Aruch Choshen Mishpat 4:1) called “Adam Oseh Din LeAtzmo,” that, if one has the proof necessary for one to win in court, one may get it back oneself by physically taking it back from the thief. This is not necessarily the most advisable thing, however, in regard to a 110 pound housewife whose planter may have been stolen by a 190 pound entrepreneur. It may also be a violation of local dina d’malchusa too. The Shulchan Aruch, however, rules (also in CM 4:1) that she [or he] may even be allowed to physically beat up the thief in getting back the item in question.
There are limitations, however, to oseh din le’atzmo—one cannot hire gentiles to do the job according to the Trumas HaDeshen (responsa 304).
So if our housewife does want to get it back, she may have to face the entrepreneur all alone. Once again, though, the reader is advised not to try this by themselves.
By Rabbi Yair Hoffman
The author may be reached at [email protected]