Question
I am the gabbai of a shul. Seventeen years ago, one of the congregants brought us a set of Nevi’im from which we read every Shabbos. He is planning to move from the neighborhood and he recently approached me to ask for the return of the Nevi’im in order to take them to his new shul. I told him that I thought that he had donated them to the shul and was not entitled to their return. He replied that he is certain that he did not donate them and that he told me at the time that he is only lending them to the shul. He explained that the reason he specifically did not donate them is because the Gemara (Kesubos 50A) says that one who writes seforim and lends them to the public is considered as if he is giving everlasting tsedoko since each time that someone uses his sefer he is giving tsedoko and if he had donated it to the shul, it would not be considered as if he were lending out his sefer and he would not earn the reward one gets if he lends out his seforim. A long time has elapsed and even though my impression is that it was a donation, I cannot say so for certain. Are we required to return the Nevi’im?
Answer
We will first consider the situation when the one who is being asked to return an object is not a shul, which is a public institution, but is a private person.
To arrive at an answer, we have to first describe your situation in the terms that are used in Jewish law. Since certainly at first the Nevi’im were owned by the congregant, he is called a mori kamo-the first (as far as the dispute is concerned) owner of the object in question. Since the Nevi’im are presently being held by the shul, the shul is called the muchzak.
If the one who is holding the object, the muchzak, is certain that the object was given to him as a present or that he bought it, he is believed (CM 133, 1) because there is a chazoko, a basic assumption that what is in a person’s possession is his (chazoko kol ma shetachas yodo harei hu shelo). (The basis for this assumption is a dispute among the Acharonim.) If the original owner is certain that he just lent it to the muchzak but the muchzak is certain it is his, the muchzak must swear that he is telling the truth. Once he swears, he may keep the object.
Since you are not certain that you were given the Nevi’im, we must consider if this chazoko still applies. This issue was discussed by both the Rishonim and Acharonim. Two Acharonim who discuss the issue are the Ketsos (133,1) and the Nesivos (133,1).
The Ketsos rules that if an object is in the possession of a child (under bar mitzva), even if the child claims that the original owner sold it to him or gave it to him, the child has to surrender it to the original owner if the owner claims that it is still his, because (Ketsos explains this in 149, 5) a child’s claim is not viewed as a certain claim. The Nesivos, while he disagrees with the ruling of the Ketsos in the case of a child because he maintains that beis din claims on behalf of a child, agrees with the principle of the Ketsos that we only apply the assumption that what is in a person’s possession is his if the one who is holding the object claims with certainty that it is his. Thus, according to both the Ketsos and the Nesivos, if you were a private person you would have to surrender the Nevi’im to the congregant.
We note that, in general, Rabbeinu Yona (BB 28B) disagrees with the Ketsos and Nesivos and maintains that we assume that an object found in a person’s possession is his, even if the muchzak is not certain. However, the Ramban and others do agree with the Ketsos and Nesivos. (See Meluei Choshen 133, 1 for a lengthy discussion.)
There is a second reason a private person would have to surrender the Nevi’im. This reason is based on what people who own Nevi’im do with them. Nowadays, most people do not buy Nevi’im in order to learn from them at home. They generally buy them for use by a shul and either donate them or lend them to a shul. Thus, one cannot say that Nevi’im are as a rule bought in order to rent or lend out but certainly often, they are lent out. An object which is lent or rented to others is called a dovor ho’osuy lehasheil ulehascheir (we will abbreviate this as dhlu). The CM rules (133, 5) that the assumption that what is in a person’s possession is his, does not apply to a dhlu. Therefore, if the original owner claims that he lent the object to the one in whose possession the dhlu is situated, and there are witnesses that it is still there, the object must be surrendered to the original owner.
CM (72, 19) records a dispute concerning which objects are classified as a dhlu. Most Rishonim maintain that if owners are not as a rule averse to lending (or renting) them out of fear that they will be damaged, they are called dhlu. According to this opinion, Nevi’im certainly are classified as a dhlu since owners do not fear for their damage since they are acquired for use by a shul.
The Rambam disagrees with these Rishonim and maintains that in order to qualify as a dhlu the object must be expressly set aside for lending or renting to others. According to this approach the Nevi’im would not be classified as a dhlu.
Thus, in dealing with a private person only if one follows the opinion of Rabbeinu Yona in the first dispute and the Rambam in the second dispute, can the one in whose possession the object is situated refuse to surrender the object. Therefore, the consensus opinion is that the Nevi’im must be returned to the original owner and certainly, the original owner can take the object since he is certain it is his.
In your case, the one in whose possession the Nevi’im are presently is a shul, which is a public institution. We have to consider whether the halacha changes in this situation. (The general issue is discussed at length in the sefer, Tuvei Ho’eir, appendix 7, authored by Rabbi Goldberg.)
The source that the public is different is a responsum of the Maharam of Rottenberg (Prague 106) a leading poseik of thirteenth century Ashkenazi Jewry. In those times the gentile government imposed taxes on the Jewish community and the community collected the tax from the community by imposing a tax on each family, based on the family’s wealth. He begins his reponsum by noting that it was the established procedure if an individual wished to dispute the community’s assessment of his wealth, that the individual first paid the tax and afterwards he could sue the community for a return of his money. This contrasts with the general rule that one who wishes to be paid must sue the one from whom he wishes to collect, and not vice versa.
He writes that initially he thought that this practice was merely a custom that was instituted by the local communities in order to expedite tax collection. However, after further consideration he discovered two sources in the Gemara for this practice, which means that this practice is not merely a custom but is in accordance with the halacha and applies even in a new settlement that has no established customs.
The first source is pertinent only when the issue is tax collection and therefore is not relevant to your situation. However, his second reason pertains to any dispute between the community and the individual and we have to consider if it applies to your situation.
The second source for this practice is that we find in the Gemara that the Rabbis instituted laws to prevent the general community from suffering a loss. The reason for this is to ensure justice. People have a personal interest to ensure that they will not suffer a loss and they try their best to obtain any money that possibly can be theirs. However, since communal assets do not belong to anyone in particular, if the Rabbis would not institute this practice, the community will suffer numerous losses.
The reason is that members of the community might not fulfill their communal obligations but the community will not recover what it is legally entitled to, because no one will sue on behalf of the community since no particular person will suffer a personal loss. Therefore, the Rabbonon enacted that whenever a dispute involves the community, the community becomes the owner of the object in question and the disputant must sue the community to recover his property.
It is very important to note that the second reason applies whenever the community is a party to a dispute. Therefore, if we apply this to your case, since you represent a shul, a communal institution, you are treated as the owner of the Nevi’im and your disputant must prove his claim and not vice versa.
However, there are several reasons this ruling of the Maharam may not apply to you. The first is that the Ramo (4, 1), based on the Terumas Hadeshen (1, 341), rules that the ruling of the Maharam applies only to taxes and the Shach (4, 10) agrees. However, the reason the Terumas Hadeshen arrived at this conclusion is because he did not see the actual responsum of the Maharam and only saw the abridged version that is cited by the Mordechai. This observation was made already by the Maharil (Chadoshos 154) who therefore ruled that even in cases that do not involve taxes the community is the muchzak.
Besides the Maharil there are others (e.g., Mahari Weill res. 133, 147, Aguda, Radvaz) who correctly understood that the Maharam’s ruling applies to any dispute of the individual against the community. Therefore, perhaps based on the Maharam your shul is the muchzak.
However, there are two reasons why the community is not considered to be the muchzak in your case. One is that the Ran (res 10) and Rashbo (3, 397: 3, 406) rule that only if someone was originally liable to the community and the issue is whether he was absolved from his liability do we rule that the community is the muchzak. However if the question is whether the individual ever became liable to the community, the community is not considered the muchzak. In your case the issue is whether the owner of the Nevi’im ever donated them to the shul. Therefore, according to these Rishonim the community is not the muchzak.
The second reason that the community is not considered the muchzak is that the Nachal Yitzchok (4, section 1) brings numerous proofs that if the community is not certain of its position it does not have the status of a muchzak. Since in your case you are not certain that the Nevi’im were given as a donation, the shul is not considered to be the muchzak.
Thus, there are two reasons that in your case there is no difference between the community and an individual. Therefore, what we wrote earlier in case the defendant is an individual applies in this case even when the defendant is a community.
In conclusion: Your shul has to surrender the Nevi’im to their original owner.
