Lesson # 234 (part two) • Ownerless Property
JOSHUA’S TEN DECREES

We continue with the subject of ownerless property. In the Tur and in Shulhan Aruch, the chapter after ownerless property is that of Joshua’s ten decrees when the Jews entered into the Promised Land. The lesson will show the connection to the prior lesson.

We have to ask regarding the methods of abandonment discussed in the last lesson, when the owner's abandonment takes effect? Reuven declares his object to be ownerless. There are two views in the Talmud and the codes as to when the declaration takes effect and the object becomes ownerless. The first view holds that the object immediately becomes ownerless and that anyone, such as Shimon (and even Reuven himself) can now acquire the ownerless object. The object can be acquired by Shimon (or even by Reuven himself) only by employing one of the methods of acquisition stated in prior lessons. The second view holds that the object continues to be owned by Reuven until Shimon acquires the object by performing an act of acquisition. This view holds that the abandoning of ownership of an object is similar to giving Shimon a gift of the object. There is a necessity for the owner to confer ownership on the recipient when the recipient of the gift performs an actof acquisition on the object that is the gift. Similarly in the case of Shimon acquiring the ownerless object, the owner must confer his intent for Shimon to acquire the object.

Even according to the first view, there may be the consent of Reuven for Shimon to acquire the object by Reuven's consent being given when he abandons ownership of the object. There are opinions that according to both views, Reuven can rescind the declaration within three days of making it. If Reuven does rescind his declaration of abandonment within the three days, the declaration is rescinded and of no effect even if Shimon performed an act of acquisition during the three-day period. There is a dissent that holds that once Shimon performs an act of acquisition of the object, Reuven can no longer rescind the declaration. There is also a difference of opinion whether the law of this paragraph applies to both real estate and personal property or only to real estate. According to the second view above stated, Reuven should be able, even after three days, to rescind his abandonment until Shimon performs an act of acquisition on the object, whether real estate or personal property; However, Reuven must not do so because declaring an object to be ownerless is similar to making a vow and a person should never fail to live up to his vow . If the owner Reuven dies after he has declared the object to be ownerless, then according to the second view in the text, the heirs of Reuven can rescind the declaration if Shimon has not as yet performed an act of acquisition, since it was still owned by Reuven when he died and the heirs are the inheritors but are not bound by the vow of their father.

Acquisition of ownerless objects
Whoever is the first person (this includes Reuven himself) to perform an act of acquisition to acquire the object becomes the new owner of the object. There must be intent on Shimon's part to acquire the ownerless object. For example, if he does not know that something is ownerless and picks it up so that he can restore it to its owner, Shimon has not acquired the owner- less object. Shimon (or Reuven himself) can acquire the ownerless objects by performing any of the methods of acquisition for purchasing an object described in prior lessons, such as hazaka for real estate; and lifting, pulling, delivery, by one's courtyard, or by Shimon's four cubits, for personal property. Other methods of purchasing objects such as money or a deed for real estate or money for personal property or kinyan for both types of objects, are not applicable since the former owner does not transfer the object to the person performing the act of acquisition of the ownerless object.

If Shimon stands guard over abandoned objects to prevent anyone else from acquiring the object, the object does not belong to Shimon. Gazing at or guarding an object is not an act of acquisition.

Rabbi Moses Isserles in his emendations to chapter 274, discusses the ten decrees promulgated by Joshua after he led the Jews across the Jordan River into the Land of Israel. They are included in this chapter since they resemble the situation where one's land is treated as ownerless for some purposes.

Reuven is the owner of the property and Shimon is the person acquiring the right to use Reuven's property.

When Joshua apportioned the Land of Israel among the tribes of Israel, he and his court promulgated ten decrees:

1. Shimon may pasture small cattle, i.e. sheep and goats, in woods consisting of large trees belonging to Reuven. However, large cattle, i.e. cows, may not be pastured by Shimon there. Neither small nor large cattle may be pastured in Reuven's woods consisting of small trees, except with Reuven's consent.

2. Shimon may gather wood from Reuven's field, provided that it is taken from trees of little value equal in the value to thorns, for example, prickly shrubs and thistles, and further provided that the wood is still attached to the ground and fresh, and that Shimon does not tear out the roots. Other woods are forbidden.

3. Shimon may collect plants no matter where they grow wild, except in a field sown with fenugreek for fodder.

4. Shimon may take a cutting from any tree, including trees owned by Reuven, except the stumps of olive trees. The amounts of the cuttings are limited as follows: from the olive tree, up to the bulk of an egg; from reeds and vines, above the joint; from other trees, only from the side branches and not from the middle stem. The cuttings may be taken only from newly grown twigs that have not yet produced fruit, and only from that side of the tree that does not face the sun.

5. When a new spring emerges from the ground, the inhabitants of that city only may use it as a water supply although its source is not on their property but on Reuven's property. No others can supply themselves with water from this new spring.

6.Anyone may catch fish in the Sea of Galilee if he uses a fish hook but not with a net, nor may he use a boat. If he is a member of a tribe in whose territory the Kinneret is located, he may spread a net or keep a boat there.

7. Shimon, who must relieve himself, may leave the road, go behind the nearest fence, and relieve himself there, even if the place belongs to Reuven.

8. If Shimon is lost among vineyards belonging to Reuven or similar cultivated real estate, he may cut his way through and go in any direction until he finds his way out. Shimon must pay Reuven for the damage he caused.

9. Whenever the road becomes too muddy or waterlogged to walk thereon, Shimon may go to the sides of the road and walk there or even on paths owned by Reuven.

10. An unclaimed dead body acquires ownership of the spot of land on which it lies and must be buried there. This does not apply if it is lying across a boundary of a city or within the border strip of a city. If it is found on a boundary or within such a border, the body must be taken to a cemetery. This applies outside the Land of Israel only if permitted by the law of the land.

King Solomon decreed that travelers during the summer may walk on privately owned field paths until the falling of the second rains.
The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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