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Behar-Bechukosei-Sold another person’s right



Our father founded and ran a yeshiva in Russia. The expenses for the yeshiva, including the money to rent the yeshiva’s facilities, were paid (at the relevant time) by a philanthropic foundation. At a certain time the local municipality, which owned the property that the yeshiva rented, offered to sell all the properties that were rented from the municipality to the renters at a significant discount for a limited time only. Our father asked the foundation if they would buy the property and they said that they were not interested. Our father, in whose name the property was rented (for technical reasons since he was a Russian citizen), based on his knowledge and skill with the help of a lawyer, obtained permission to legally transfer this right to a third party and he then sold the yeshiva’s entitlement to a discounted price to a third party, who then proceeded to buy the property. With the money that he received from the sale of the right, he purchased apartments which the yeshiva used. All the apartments were registered again in his name because of tax considerations. However he always said that some of the apartments were his but some belonged to the yeshiva. Our question is: whose is the money that our father earned from selling this right? The reason he considered some of the apartments to be his is because he was the one who sold the apartments for the yeshiva. Is perhaps all the money his since the yeshiva had no intention to use its right so it should be like hefkeir-ownerless? Or perhaps he deserves nothing because he sold something that belonged to someone else? Or perhaps somewhere in between?


The issue where a person uses another person’s possessions in order to earn money comes up often and is very delicate so one must be very careful to characterize the situation in a very precise manner in order to arrive at the correct decision. The slightest alteration of the situation can completely change the characterization and subsequent ruling.

We will begin by examining what the yeshiva owned. The yeshiva was granted a right by the municipality, which was worth money. Even if the right had been non-transferable it would have been worth money for the yeshiva and the consensus opinion (against the Nesivos (148, 1)) is that even if an asset only has value for its owner, it is considered the property of its owner. For example, a person’s prescription glasses are considered his and if someone damages them he is required to pay the amount that they are worth to their owner.

Furthermore, even though a right is intangible, there is a concept of ownership. Evidence of this can be brought from a non-kohein’s ownership of the terumo that he tithed. The Gemoro (Bechoros 27A) writes that the non-kohein has the right to accept money from someone whose grandson is a kohein and wishes to pay him to give his terumo to his grandson. This right is called tovas hano’o. Even though there is a dispute in the Gemoro whether the non-koehein can marry a bride with his terumo, nevertheless, the consensus (See Mekor Chaim siman 429) is that according to all opinions he is considered an owner of this right and another person may not take this right from him. The issue of his ability to marry a woman with the terumo is a different issue, namely, whether this right is an intrinsic property of the food.

Furthermore, the fact that the yeshiva did not plan to use this right in no way diminishes their ownership of this right and it is not considered hefkeir. One case to prove this is when a person rents out to someone a vacant property belonging to a third party. Even though the real owner had no intention and is not even present to rent out his property, the person who rented out the property is not entitled to keep the rental money (Ramo CM 363, 10). The Rashbo is undecided whether the money is returned to the renter (because he is ze nehene veze lo choseir) or given to the owner. In either case the right to rent out the property is certainly not ownerless since if it were, the one who rented it out would be entitled to keep the rental money that he collected.

Having established that the yeshiva owned a right, the next step is to determine the relationship of your father to this right. Since his work to enable the yeshiva to sell the right to another person and the subsequent sale of the right were not part of his job at the yeshiva and he did not intend to do it for free, he has the same status as anyone who improves another person’s property. The fact that in this case the property is just a right is irrelevant. Whenever a person works for someone without having been hired to do the job, he does not have the status of an employee but the status of a yoreid, which has its own set of halachos.

The amount that a yoreid is entitled to be paid depends on what type of a yoreid he is. The halacha sees two categories of yoreid. Those who were given permission to work by the owner are known as a yoreid bershus, and those who were not given permission are known as a yoreid shelo bershus. Since your father was the one who was responsible for making decisions for the yeshiva he was empowered and required to act in a manner that was in the yeshiva’s best interest. In this situation where the yeshiva’s patron was unwilling to contribute the funds that would have enabled the yeshiva to use the right for itself, your father’s decision to sell the yeshiva’s right was the proper decision. Since time and effort were needed in order to make the right transferable and afterwards to find someone to buy this right, your father had the right and responsibility to hire someone to perform this task on behalf of the yeshiva. By performing this task himself your father saved the yeshiva the expense of paying someone else to do this job. This is the amount that in general is paid to a yoreid bershus. When one performs work without having been hired for the task (ruled in CM 332, 2) he is entitled to the lowest amount that is generally paid to people who have the same skill as the one who performed the task (known as pochos shebepoalim).

A similar case that is discussed in the Mishna (BK 115B) is where two people’s donkeys were drowning. The owner of the cheaper donkey, without saying anything to the owner of the other donkey or to beis din, let his donkey drown in order to save the more expensive donkey. The Mishna rules that the cheap donkey’s owner is not reimbursed for the loss of his donkey (since he failed to stipulate anything at the outset) but he is entitled to the pay that the owner of the expensive donkey would have needed to pay someone to save his donkey. Thus we see that the fact that a person saved something (unless it was a certain loss) does not grant him ownership of what he saved but that he is entitled to be paid for his time and efforts.

In order to answer your question it is necessary to clarify that even though one who is granted permission to work without having been hired gets paid the amount that would have been paid to an employee, he does not have the status and rights of an employee. For example the Torah commands an employer to pay his workers on the day that the employee completed his job. However, (See Pischei Teshuvo CM 89, 2) this command does not apply to workers who were not hired. There is a rabbinic command to not tarry needlessly (BM 111A) but there is no Biblical requirement to pay on the very day the job is completed.

This distinction is important for your question. An employer must pay money (Tosafos BK 9A) to his employee and he cannot force him to accept goods in lieu of money. For example, if one hired workers on a per diem basis to pick apples, he cannot force them at the end of the day to just take the amount of apples that are worth their salary. If he does not have money he must sell the apples and give them money.

Since your father was not hired to perform this task, the yeshiva was entitled to pay him with goods and not money. Therefore, they were entitled to pay him by giving him a share in the apartments which they purchased with the proceeds that they received from the person who bought their rights. Thus he was entitled to a share in the apartments that is commensurate with the amount that he deserved as we describe above.

In conclusion: You father was entitled to be paid for the work that he did in order to sell the yeshiva’s rights and if the yeshiva wanted it could pay him by giving him some of the apartments that they purchased with the proceeds that they earned from selling their rights.



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