Question (from last week)
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 the previous article we noted that the answer to your question whether your neighbor is a thief or not depends on whether you acquired the paper or not. Furthermore, we learned that the only way you could have acquired the paper is by virtue of the kinyan of chotseir since you do not pick up the paper before your neighbor borrows it. We saw that since you are not at home before your neighbor takes your paper there were only two possible approaches that could enable you to utilize chotseir in order to acquire the paper: one because of da’as acheres makne lo and another is if your chotseir is considered guarded-mishtameres. In the previous article we studied the first possibility and learned that even though according to some opinions you did acquire the newspaper, nevertheless, since many disagree you could not classify your neighbor as a thief based on da’as acheres makne lo. In this article we will study the second possibility, namely that your chotseir is considered mishtameres.
In your question you mentioned two features of your front lawn that play an important role in deciding the answer to your question. One is that your lawn is unfenced and the second is that it is covered by your surveillance cameras.
Before deciding whether your chotseir is mishtameres it is important to understand the mechanics behind the kinyan of chotseir and why mishtameres is so important. Even though the Gemoro derives the kinyan of chotseir from pesukim, nevertheless, the Gemoro (BM 12A) explains that chotseir is not really a new act of kinyan. The pesukim just reveal to us that when an object is in one’s chotseir he can acquire it if certain conditions are satisfied, but the kinyan by which the object is acquired is either yad, meaning that the chotseir is an extension of its owner’s hand, or, shlichus, meaning that the chotseir acts as its owner’s agent (even though it is not a person) to acquire objects placed within it on behalf of its owner. Both yad and shlichus are fully valid methods for acquiring things. With regard to a chotseir, depending on the circumstances sometimes one is applicable, sometimes the other, and sometimes neither.
The Rosh (BM 1, 31) explains that the rationale for the requirement that a chotseir be mishtameres, if its owner is not present, is that since a person does not entrust his possessions to an agent who cannot watch over them, a chotseir that is not safe cannot be viewed as its owner’s agent to acquire objects on its owner’s behalf. If the owner is on his property (or, according to some, even adjacent to it), the property is considered an extension of his hand and so he can acquire the object through yad even if it is not safe. But if the owner is not present, he cannot acquire an object that is on his property if his property is not safe. Yad does not apply because he is not present, and shlichus does not apply because the object is not safe.
The Gemoro does not give guidelines to determine what is necessary in order that a chotseir can be classified as mishtameres and there are three opinions in the Acharonim. The Hamakne (Kuntress Acharon 30, 9) rules that it must be under lock and key. The Nesivos (200, 3, Be’eir Yitzchok OC 5 agrees) proves that this is not necessary but he requires that it must be surrounded by walls and if there are no walls it cannot be classified as a chotseir hamishtameres. However his proof is refuted by the Hamakne. The Machane Efraim (Kinyan Chotseir 11) disagrees with both of these opinions and proves that even if there are no walls a property can be classified as a chotseir hamishtameres, but his proof is refuted by the Beis Efraim (EH 104).
It is important to note that many Rishonim (Rashi, Ran and Ritvo BM 11A) disagree with the Rosh’s explanation why a person who is near his property can acquire an object even if the property is not mishtameres. They maintain that the rationale is that when one is near his property, even though the property is in and of itself unguarded, the owner will safeguard any object that is on his property. The important principle that we can derive from these Rishonim is that they maintain that it is not critical that the property meet the above requirements. Even if it does not meet any requirements, if the owner has control over his property, the chotseir is considered mishtameres, according to this opinion. However, according to the approach of the Rosh, in order for a chotseir to be considered mishtameres it must meet certain physical requirements.
Moreover, the Ketsos (200, 2) proves even further that even if the chotseir does not meet the physical requirements to be called a chotseir hamishtamers and even if the owner is not watching over his property, according to some Rishonim if there is no fear that others will take the object because of other reasons, the one who owns the property on which the object rests can acquire the object through chotseir. The Ketsos bases his proof on the Gemoro (BM 102A) that rules that if it is public knowledge that an ownerless object was on a person’s property, the property owner acquires the object. The Gemara gives as a reason the fact that the object is safe for the property owner since others will be embarrassed to take the object out of fear that they will be viewed as a thief in the public eye. Thus we see that the fact that the property owner does not need to fear that others will take the object suffices to enable the owner to acquire the object by means of chotseir. The Ketsos agrees that there are Rishonim who disagree.
One of those who disagrees is Rabbeinu Chananel who understands that the reason the owner of the property can acquire a lost object is because people will not trespass on his property since they will be accused by the government of stealing the lost object, if it is found missing. We see from this that even those who disagree with the Ketsos agree that if people will not trespass on a property it is called a chotseir hamishtameres even if it has no walls. From this we can deduce that if a person has a property that is guarded by a dog, even if the property has no walls it is classified as a chotseir hamishtameres.
It is also clear from the Gemara according to all opinions that the ability of a person to acquire objects by means of chotseir depends on what one wishes to acquire. This is clear because the Mishna (BM 11A) states that a person can acquire a deer that has a broken leg by means of chotseir but not a healthy deer since it can run out of the chotseir.
Thus we have seen that according to the Machane Efraim and the Ketsos the fact that your lawn is not fenced in does not prevent you from acquiring the newspaper since according to the Machane Efraim a fence is not required and according to the Ketsos you feel confident that people will not steal from your lawn since it is known to be under surveillance. Even your neighbor would not steal your paper. He probably thinks he is not doing anything wrong since he should have received the paper and he is just borrowing your paper. Probably, even Rabbeinu Chananel would consider your lawn mishtameres if people do not usually walk on your property because of your cameras.
The sefer Vayishma Moshe (3, page 527) writes that he posed the question whether, in general, a property that is under surveillance is considered a chotseir hamishtameres to various contemporary Gedolim. The consensus of the Gedolim (Rav Chaim Kaniefsky, Rav S.Z. Ullman, zatsal, and ylct”a Rav Naftoli Nussbaum and Rav Shamei Gross) was that the crucial issue is whether people will steal from a place that is known to be under surveillance. Some differentiated among the various objects which, as we saw, is justified in light of what the Mishna writes about deer.
Thus, it seems that since almost no one would steal a newspaper from a place that is known to be under surveillance many would consider your lawn a chotseir hamishtameres and according to them you acquire your newspaper when it is placed in your lawn. And thus your neighbor is considered a thief since one who borrows without permission is considered a thief.