Question
I had an appliance that stopped working. Since I showed it to a few people and they told me that it can’t be fixed, I put it outside in a place where people put these types of items: old appliances, furniture, boxes etc. People sometimes take these items and if not, after a while the municipality takes them and disposes of them. The reason people put their old appliances there is that even if they aren’t fixable, sometimes people are interested in them for their parts or have other reasons to take them. In my case, someone who is good with his hands took it and fixed it. Since it had my name on it, he mentioned to me in passing that he took it and it just needed a small part and within a few minutes he fixed it. Can I ask him to return the appliance because I never would have discarded it had I known the truth when I discarded it?
Answer
In general, when one’s action is based on incorrect information his action is legally ineffective, because da’as, awareness, is required in order for a transaction to be valid.
For example, when one buys an item that is defective, the customer is entitled to cancel the sale because he purchased it in error. He would never have bought it if he had been aware of the defect.
Similarly, the Rash (Peoh 6, 1), Tosafos (Pesachim 57A) and other Rishonim prove from the Gemara that when one declares an item hefkeir (i.e., he renders it ownerless) based on inaccurate information, the hefkeir is invalid. Their proof is from a case in the Gemara of a person who mistakenly thought that one is required to declare ownerless a part of his vegetables in order to enable the poor to take them. When he was informed that this was an error, he took them back and the hefkeir was invalidated retroactively.
However, there is another Gemara that seems similar to your case. The Gemara cites a dispute between R. Yochonon and Reish Lokeish and the authoritative opinion of R. Yochonon is that that even though a person acted based on wrong information, nevertheless, his action is valid.
The dispute cited by the Gemara (Bavli Kreisus 24A and Yerushalmi BK 4, 8) concerns beis din who, based on false testimony, ruled that a person’s ox had to be stoned, thereby rendering it worthless. The authoritative position of R. Yochonon is that if someone took the ox he may keep it, even if, at a later time, other witnesses invalidated the testimony of the first witnesses by testifying that they were together with the original witnesses at the time they purportedly saw the ox acting in the way that caused beis din to rule that the ox must be stoned, and those witnesses could not have possibly seen anything that would cause the ox to deserve stoning (hazomo).
The position of Reish Lokeish is that since the original testimony was never valid, the ox’s original owner’s belief that his ox was worthless was a mistake. Therefore, his belief cannot enable the person who took the ox to acquire ownership, and therefore, he must return it. However, R. Yochonon, whose position is authoritative, disagrees. Thus, we rule that even if the owner’s assumption that the ox was worthless was a mistake, anyone who took the ox before the owner realized his mistake may keep the ox.
It is important in our case to recall that there are two ways to abdicate ownership of an object: one is hefkeir and one is yi’ush. They have different rules and apply in distinct circumstances. For example, one cannot render hefkeir an object after it was lost or stolen from him, whereas yi’ush can apply.
Rav Shimon Shkop (Sha’arei Yosher 5, 12) proves that the correct characterization of yi’ush is that it is a state of consent. For example, when one gives up hope that he will recover his lost object, he effectively gives permission for anyone to take the object.
The objection raised by Reish Lokeish to R. Yochonon’s ruling in the case of the ox is described slightly differently by the Yerushalmi from the way it is described by the Bavli. According to the Bavli he objected that hefkeir that is based on incorrect information is invalid, but the Yerushalmi reports that his objection is that yi’ush that is based on incorrect information is invalid.
Since the Gemara sometimes uses these two words interchangeably, the commentaries disagree which is the correct description in this case. The Ketsos (406, 2) maintains that the owner meant to render the ox hefkeir, but many others including the Terumas Hekrei (262), the Beis Halevy, (1, 48), the Maharshag (2, 262) and Rav Shimon (ibid) disagree and maintain that the correct way to describe the ox is that its owner had yi’ush on the ox and not that it is hefkeir. The argument of the Terumas Hakrei is that when one is told that his ox has been sentenced to death, he may despair of being able to use it in the future which is yi’ush, but there is no reason to assume that he intends to declare it ownerless.
According to these opinions it seems that whereas, as we saw earlier, hefkeir that is based on false information is invalid, but yi’ush based on false information is valid. The Ketsos (siman 142) proves that yi’ush based on false information is valid because whenever one has yi’ush from his lost object, it is based on the owner’s mistaken assumption that it will not be found.
If we apply this to your situation it implies that even though you acted based on false information, there was yi’ush on your appliance and the one who took it can keep it.
However, there are many Poskim who rule that one must distinguish between two types of mistakes. To understand the difference, it will be helpful to analyze a Gemara (Kesubos 97A) that discusses a sale that was based on a false assumption. The Gemara discusses people in Bavel who sold their houses in a time of famine in order to purchase wheat. The Gemara rules that their sale was invalid because boats loaded with wheat were in the river near the place where the people who needed the wheat were living. Since the sale was based on a lack of correct information the sale was declared invalid.
Rashi stresses that it is only because relief was already on the way that the sale was invalid. However, if at the time of the sale relief was not yet on the way, even though the sale later became unnecessary because relief arrived, nonetheless, the sale was valid. Thus, we have a key principle: In order to qualify as a sale that is based on false information, the information must have been false at the time of the sale.
Many poskim (Beis Yitzchok OC 76), Maharshag (2, 232) and meforshim (R. Shimon ibid, Shiurei Rav Shmuel BM Perek 2, siman 2) apply this to yi’ush as well. For example, the proof of the Ketsos from the validity of yi’ush by lost objects even though the object was eventually found by a Jew, does not serve as a proof in general since at the time when the owner despaired of recovering his lost object, the object had not yet been found by a fellow Jew. Since the reason that the owner’s decision was incorrect is something that happened only in the future, the yi’ush is not a mistake since it was the correct decision at the time it was made.
These meforshim explain that in the case of the ox that was sentenced to death on the basis of false testimony it is only because of later events (i.e., the testimony of the second set of witnesses) that the ox’s owner’s decision was incorrect since at the time when he despaired of future use of his ox, the owner’s decision was correct. It was correct because he was required at that point to heed beis din’s decision and to allow his ox to be stoned.
Many modern poskim followed the latter approach. For example, Rav Shlomo Zafraney (Ohr Hatorah 5764) ruled in the case of a person who asked his housemaid to dispose of various old papers and discovered, after she had taken the papers but had not yet disposed of them, that the papers were very valuable, that the housemaid must return the papers to their owner even though they were in her possession at the time when he discovered that they were valuable.
However, there are poskim who understand that the disputants in the Yerushalmi maintain that yi’ush is effective even when it is based on incorrect information. The reason yi’ush is different according to them is because it is a state and not an action. For example, the Pri Yitzchok (2, 64) understands that both R. Yochonon and Reish Lokeish maintain that the yi’ush is effective and their dispute is only in case the second set of witnesses testified before someone took the ox. The basis for their dispute is whether the owner had to repossess the ox after these witnesses testified or not. R. Yochonon maintains that he needed to repossess the ox since previously he had yi’ush. Since he needed to repossess the ox, the one who took the ox in the interim is entitled to keep the ox.
If one follows this approach the one who took your appliance can keep it since he took it before you realized your mistake. The sefer Mishpat Ho’aveido (CM 262, MZ 27, 4) rules that this issue remains a dispute and it is questionable how to rule. If one follows this ruling, you cannot force the one who found your appliance to return it, but his ownership is questionable and it is best for him to come to an agreement with you.
In conclusion: There is a dispute whether the one who found and fixed your discarded appliance is the owner or not. You cannot force him to return it to you but it is best for him to come to an agreement with you since his ownership is questionable.
