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Fellow Weekly Newsletter - Issue 52 - Shipwrecked! - Business Law and Ethics for the Shabbos Table

Publication: Fellow Weekly Newsletter

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11/4/10

Welcome to Fellow Weekly!

Encouraging intelligent and entertaining debate at your Shabbos table.

Fellow Weekly raises issues of business law and ethics through lively emails by featuring your real-life scenarios answered by our leading authorities and professionals.

To join this mailing list, please send an email to weekly@projectfellow.org with the word subscribe in the subject line.

CASE 153: Shipwrecked ... [Based upon a Thousand Year Old True Story]

The beautiful European coastal city was forever a hub of activity and excitement. Especially heartwarming was the highly developed close-knit Jewish community, which provided a host of physical emotional and spiritual services for its members. Most importantly, the community provided its constituents with a feeling of belonging as well as the constant opportunity to share their talents and wherewithal to enhance each other's lives.

Commerce continued to develop nicely as the coastal site provided a host of business opportunities for the local population. Yet, the community's wheel of fortune took an abrupt challenging twist, when a fierce winter storm rocked through the region.

A sizable ship carrying tons of merchandise for export struggled to keep afloat against the raging gales and violent current. Yet it did not take long before the frightening crackling of wood and iron sent a terrifying cry along the shore side, as the natives watched in horror their investments fall into the waters.

Soon thereafter, the storm subsided and the waters returned to their typical peaceful character. The neighboring fishermen jumped at the opportunity to strike it rich and began coordinating an effort to capture the river's recent gain.

Two days later, the local government issued an edict forbidding the sale of the merchandise afloat, whereby encouraging the fishermen to return their catches to their initial owners. The fishermen though would be entitled to a substantial cut proportionate with the amount of merchandise they retrieved.

Ronald Jones ignored government policy and sold a designer pair of diamond studded gold cufflinks to Mr. Rubin, the local butcher. When David Gold, the local jeweler learned of the purchase, he demanded Rubin to return the jewelry to him. Rubin argued that he could have retrieved the jewelry himself before government policy came into effect.

1. Is Mr. Rubin required to return the diamond studded gold cufflinks to David Gold?

What is the law?

Please email us with your comments and answers at weekly@projectfellow.org .

Read next week's issue for the answer!

LAST WEEK'S CASE

CASE 152: Ben or Abe: The Hundred Dollar Bill Controversy

Ben Ring, a high profile lawyer in Philadelphia ran a tight schedule with little or no time for leisure. Nonetheless, he would spend thirty minutes on Thursday afternoons to shop in the local supermarket for his elderly grandfather.

Groceries in his hand, Ben approached the checkout counter. Rummaging for his wallet, he suddenly took a double spin. Franklin was lying before his feet staring him straight in the face. One hundred dollars in hands reach!

Ring felt uneasy about the entire situation. The money did not fall from his pocket. Should he give it to the cashier? Why? Who said it belonged to the store? Even if it did belong to the store, who said it would make it to the cash register. Yet, he was unsure if he could morally pick up the bill and strike it rich off someone else's loss.

Ben’s mind began racing back and forth, while Franklin remained grounded on the floor. Suddenly, basketball in hand, red haired ten-year-old Abe Stein came panting in to the store. "Ms. Cashier, I lost a hundred dollar bill and my Mom is not going to be a happy camper."

1. May Ben now pick up Franklin and keep the bill for himself?

2. If Ben picked up the money before little Abe came huffing in to the supermarket, should he return it to Abe?

What is the law?

The Answer

We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.

Although it may be a virtuous and gracious gesture for Ben to give the hundred dollars to Abe upon ascertaining little Abe's pain to appear genuine, there is no legal basis for doing so.

If Ben picked up the bill before Abe arrived, he need not return it to Abe. Additionally, he may pick it up at any time for himself before Abe does [See detailed explanation].

Detailed Explanation

Ben or Abe implicates numerous laws, we will focus upon the following four.

1. If an article appears as though it fell in its place, "providing the finder with the correct position" bears no indication of ownership thereof. [See Background below] Thus, describing the unique positioning only serves an identifying feature when it is clear that the owner intentionally placed the article in an unexpected position [Choshen Mishpat 262: 3].

2. Generally, loose money is standard and has no unique identifying features [Choshen Mishpat 262: 6, 11, 13].

3. Money found in a store on the customers' side of the checkout counter is not assumed to belong to the store [Choshen Mishpat 260:5].

4. We noted [See issue 51] that the finder is strongly encouraged to follow the "noble rout" of being "straight and good" [Devarim 6: 18] and return an article to its original owner even after he or she despaired. However, this rule does not apply to an unidentifiable object <[i>Choshen Mishpat 259: 5]. One is not acting "straight and good", by returning an article to an individual who cannot prove his or her original ownership thereof.

Background:

[Adapted from Issues 50, 51 for our New Subscribers; as well as a “for a review” for our seasoned readers.]

Upon finding a "lost article", one confronts the following dilemma, "Should the finder 1) leave the article be, 2) safeguard the article, responsibly attempt to identify the rightful owner and then inform the owner of its whereabouts, or 3) is the finder permitted to keep it?"

Safeguarding etc, the article when called for, the finder fulfills the Mitzvah of Hashavat Aveidah and avoids transgressing the negative prohibition of ignoring a fellow's potential financial loss [See Issue 49]. Keeping the article inappropriately, can be a form of theft <[i>Choshen Mishpat 259:1] and taking the article away inappropriately can cause the owner unnecessary loss <[i>Choshen Mishpat 260:9]. It is thus imperative to familiarize oneself with the simple process of ascertaining the proper response thereof.

What elements must the finder consider in order to be equipped to respond appropriately?

Determining the mindset of the loser vis-à-vis retrieving the article is generally the most crucial factor in establishing whether the owner retains full ownership of the article thereof or otherwise legitimately allows others to obtain it should they wish to do so <[i>Bava Metzia Chapter II, Choshen Mishpat 259].

In other words, the owner may entertain a reasonable prospect of retrieving the article and therefore object to the finder keeping the article. Conversely, the owner might rationalize that the article will remain irretrievable, thereby consciously or subconsciously allowing others to keep their find <[i>Tosafos Bava Kama 66a, Nesivos Hamishpat 259].

There are generally three steps to processing this equation.

I. An essential element of the equation begins by attempting to ascertain if the loser had sufficient time to discover the loss. So long as the owner did not discover the loss, there can be no conscious or subconscious decision to permit others to acquire the article. Hence, generally, as long as the original owner is not privy to the loss, the finder may not keep the find <[i>Bava Metzia 21b, Choshen Mishpat 262:3].

II) III) once the finder ascertains that the loser had sufficient time to discover the loss, the finder must consider whether the circumstances surrounding the loss prompt the loser to despair from ever retrieving the article, or can we determine that the loser still hopes to recover the article. So long as the loser did not yet despair, the finder may not keep the article <[i>Choshen Mishpat 259:1].

[Note: See next week's issue regarding situations of sure losses like articles being washed away by tidal waves, which are subject to different guidelines.]

Various factors account for considerable prospects of recovery whereby the loser remains reasonably hopeful of retrieval. Such factors in place, the finder may not keep the find.

Factors include: I 1) Environment

II 2) Unique identifying features and 3) Unique positioning

Environment: Losing an article amidst a society attentive to Hashavat Aveidah laws provides the owner with hope of recovery. Yet, the owner can only hope to retrieve it if he or she can expect the finder to notice unique identifying features thereof. (Similarly, the finder may only return the object to one who produces the correct identifying features, lest the article land up in the wrong hands [Choshen Mishpat 267].)

Unique identifying features include unique size, shape, color, quantity, weight, and packaging to name a few [Choshen Mishpat 259:2, 262:6]. Thus, finding a non-standard article amidst a society of Hashavat Aveidah observers would require the finder to safeguard the article, responsibly attempt to identify the rightful owner and then inform the owner of its whereabouts[Choshen Mishpat 259:3, 262:3].

Unique positioning only serves an identifying feature when it is clear that the owner intentionally placed the article in an unexpected position. Otherwise, the unidentifiable object remains without a medium for the original owner to prove ownership thereof <[i>Choshen Mishpat 262:3].

Application:

The hundred-dollar bill fell on the customers' side of the checkout counter. It does not belong to the store. The bill had no identifying features. As it was clear that no one placed it on the floor, its position will not serve as an identifying feature. Ben may keep his find. Even after Abe arrives, Abe lacks a legal means of proving that the bill Ben found was the one that fell from his hands. The bill could have fallen from another person as well. Certainly, though if circumstantial evidence points in favor of Abe, Ben could choose to act graciously and benevolently and give the bill to Abe, but the bill legally belongs to Ben.

[Answered by the Fellow -Yesharim Research Center]

Note:

Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.

To join this mailing list, please send an email to weekly@projectfellow.org with the word subscribe in the subject line.

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