Both I and my neighbor, who is also religious, subscribe to the same newspaper. The delivery boy drops the newspaper on my unfenced front lawn every morning. Sometimes the delivery boy forgets one of us and only one of us gets the paper. My neighbor gets back from davening earlier than I do. Therefore, on those occasions when the delivery boy only gave me a paper he will take my paper to his house and only when he and his wife are finished will they return my paper to my lawn. I find this annoying since I also like to read the paper at breakfast. I know for sure it is this neighbor because I have seen him on my surveillance camera taking it on a number of occasions. Can I tell my neighbor that I don’t give him permission and he is stealing?
In order to consider your neighbor’s action an act of theft you need to first acquire the paper. The way you can acquire the newspaper is to perform a kinyan-an act of acquisition. The most common way to acquire movable objects is by picking them up-hagboho, which you did not do. This leaves us with one possible act of kinyan here: chotseir. The way this kinyan works is that one who desires can acquire an object (whose owner does not object to his acquisition) that is situated on his property, without performing any physical action on the object he wishes to acquire.
Therefore, in order to determine the answer we must study the laws of chotseir and clarify the precise conditions that are necessary in order for a person to acquire an object that has been placed in his property. Once we determine that, we can consider whether you fulfill these requirements.
We note that the consensus opinion (See Ritva BM 10B for example) is that the kinyan of chotseir is Biblical since the Gemara (BM 10B) derives this kinyan from pesukim. We note further that borrowing without permission, known as shoeil shelo mida’as, is considered by the Torah an act of theft. Therefore, if you acquired ownership of the paper your neighbor is a thief under Torah law but if you did not acquire ownership he is not a thief at all.
When the Gemoro (BM 11A) discusses acquiring a lost object (where the owner gave up hope that he will be able to recover his lost object) the Gemoro stipulates that in order to acquire the object the property owner must stand adjacent to the property of his on which the lost object is situated. The Gemoro clarifies that this is required only if the property is not “guarded”-mishtameres. The Rishonim dispute if being next to the field is sufficient or if the owner must be physically inside the property. In any case, since you are in shul when the newspaper is dropped on your lawn, according to all opinions you do not fulfill the condition that the one who wishes to acquire a lost object must be next to the field.
There remain two possibilities for you to acquire the newspaper. One is that perhaps this condition must only be satisfied when one wishes to acquire an ownerless, lost object but not in order to acquire an object that he has paid for. The second possibility is that perhaps your lawn is considered with regard to this issue to be guarded. Both of these possibilities require careful consideration and in this article we will consider only the first possibility. B”H in the next article we will study the second possibility.
Regarding the kinyan of chotseir, the Gemara states (BM 11B) that the salient difference between acquiring a lost object and acquiring a purchased object is that, whereas in the case of a lost object no one is transferring ownership to the one who desires to acquire it, in the case of a purchased object the seller actively transfers ownership to his buyer. The desire to transfer ownership to the acquiring party, known as da’as acheres makne lo assists the recipient to attain ownership of the object (exactly how will be explained later).
There is a dispute among the Amoraim (ibid) if we require the chotseir to be guarded even where there is da’as acheres makne lo and there is a dispute among the Rishonim and the poskim which opinion of the Amoraim is authoritative.
Basing himself on the Rosh, the Ramo (CM 200, 1) rules that when one receives an item that he paid for, or when he receives a present, the recipient acquires it if it is placed in his chotseir even if the chotseir is unguarded. Since the newspaper company wants to give you the newspaper that the deliveryman dropped on your lawn, it seems that if one follows the Ramo, you acquired the newspaper when it was placed on your lawn even though you weren’t even aware that it was placed there.
However, before we can decide conclusively that the Ramo would rule that you acquired possession of the newspaper when it was placed on your lawn, we must understand the rationale why this opinion maintains that we forego the requirement that the chotseir be guarded when we are in a situation of da’as acheres makne lo. The Rishonim and Acharonim offer several approaches and we will need to determine, according to each approach whether in your situation there was da’as acheres makne.
The Rosh (BM 1, 31), who is the source of the Ramo’s ruling, offers one approach. He explains that even according to this opinion, really we do not forego the requirement that the chotseir be guarded. It is just that this opinion expands the concept of what is called a guarded chotseir. Whereas the other opinion maintains that to achieve the status of being a guarded chotseir we require that the recipient or his agent be the one who is guarding the chotseir, this opinion maintains that even if the chotseir is only guarded by the seller (or the giver in case of a present) it is sufficient.
If one understands the concept of da’as acheres makne in this manner, you do not fulfill this requirement since the newspaper company does not watch over your newspaper for you. Rather, the delivery person just drops the paper on your lawn and drives off.
However, there are other poskim who understand the concept of da’as acheres makne lo differently and we must examine if perhaps according to their explanation your situation will satisfy the condition of da’as acheres makne lo.
A second explanation is suggested by Rabbeinu Peretz (brought in the Shito Mekubetses BM 11B). He explains that the rationale is that in a situation of da’as acheres makne the recipient can be confident that others will not take the object because if the customer did not acquire the object then it still belongs to the seller and others can’t take it from him either. The fact that the object is safe for the recipient enables the recipient to acquire ownership even if his chotseir is not what made it safe for him.
If we apply this reason to your situation it is questionable if you satisfy this condition because, while the general population has no claim to your paper if it is still owned by the newspaper company, your neighbor as well as others who did not receive the paper, do have a claim to the paper since they were supposed to receive a paper.
There is a third explanation (Chiddushei Baruch Ta’am) why da’as acheres makne works and according to that explanation you acquired the newspaper when it was dropped on your lawn.
We note further that even though the Ramo rules that da’as acheres makne helps, the Mechabeir in the Shulchan Aruch follows the opinion of the Rif and Rambam who rule that the other opinion in the Gemara is authoritative. According to this opinion, only a guarded chotseir suffices to acquire ownership.
We note further that the Shach (200, 1) disagrees with the Ramo’s decision to follow the Rosh’s opinion. However since there are other Rishonim who agree with the Rosh he concludes that it is an open question whether one can rule like the Rosh.
In conclusion: It is very difficult to rule that your neighbor is a thief based on the first possibility since there is first, a dispute whether to rule that we can ever forego the condition that the chotseir must be guarded and, even if we could, according to many, including the Rosh who is the source for this opinion, your situation does not meet the required condition for foregoing this requirement.
B”H in the next article we will explore the second possibility.