After the Holocaust, a Jew acquired a beautiful Sefer Torah from Nazis who were about to dispose of it by using it to kindle a fire in their oven. Decades later he offered it for sale at an auction. As a brochure was made public detailing the item to be sold, someone came forth claiming that the Sefer Torah could not be sold for it was stolen from his family. He stated that the Nazis confiscated his family Sefer Torah when they rounded up the Jews from his town to be sent to concentration camps. Evidence of his claim was the fact that his father’s name and the name of his family were inscribed on the handle of the Sefer Torah. As such, he maintained the SeferTorah was “stolen goods” and according to law must be returned to the original, rightful owner. The seller did not deny the fact that the Sefer Torah may have at one time belonged to the claimant. His argument was that he never committed any crime. He never forcefully or unjustly acquired the Sefer Torah. Just the opposite, he salvaged the Sefer Torah from utter destruction. His position was that the owner almost definitely gave up hope of ever retrieving it again and in fact, relinquished ownership. (In talmudic terminology the owner was M’ya’yish) Consequently, the Torah no longer belonged to the original owner( it was Hefker) Thus, the seller assumed ownership when he originally took possession of it. As such, he, the seller, felt that he had every right to auction the Torah and asserted that any funds from the sale belonged to him.
A similar case dealing with a Torah Crown was brought to a rabbinic tribunal for adjudication headed by HaGoan Rav Yosef Shalom Elyashiv, the renowned Jerusalem Halachic scholar. His response dealt with the following issues of concern.
The Shulchan Aruch rules that ownership is granted to a person who salvages food from a lion about to devour it or salvages goods from perilous waters. (Choshen Mishpat 259:7) It also rules that in the event that a caravan is attacked by a band of robbers and everyone gave up hope of retrieving possesions, should one person subsequently overcome the robbers he legally acquires ownership of all he retrieves from the robbers. (Choshen Mishpat 181:1) The legal premise of these cases is that the original owner must have renounced ownership due to such dire circumstances. Thus there was no legal owner when the items were salvaged. Accordingly, the act of salvaging these items became the basis of acquiring ownership. It is evident that Jews never believed that they would ever have their properties returned by the Nazis. It, therefore, appears logical to presume that by giving up hope of ever recovering their possessions from the Nazis, ownership was renounced. This principle would support the position of the seller.
Countering the above is the following ruling of the Rama. He notes that should one acquire an item from a thief, basic principles of halacha would not obligate the item to be returned to its original owner. The reason is that in general, people give up hope of retrieving stolen items. (They are M’ya’yish.) Consequently, they renounce ownership when informed of the theft. Thus, the thief acquires ownership by the renouncement coupled with the change of venue of the items. This is the law. However, common custom has been to obligate all stolen items to be returned to original owners regardless of whether the original owner renounced ownership or gave up hope of ever recovering his possession. Indeed, the Rama notes that all should comply with this custom. (Choshen Mishpat 368)The Shach contends that the custom is based on a special ordinance established by the rabbis.The rationale for this ruling,says the K’tzot HaChoshen, is that the great sages felt it important to protect victims of theft beyond and above the letter of the law. (Lifnnim M’Shurat HaDin) (K’Tzot HaChoshen 259)
The difficulty with the theory of the K’tzot, argues Rav Elyashuv, is that according to the K’tzot, perhaps, only wealthy people were obligated to return the stolen objects. Maybe, the sages never made such a rule of above and beyond the law for poor people. He, therefore, contends that the position of the Shach has merit. Namely that the Sages established an ordinance (Takana) that all stolen items must be returned regardless of whether the person who acquired the stolen items from the thief was rich or poor.
A further concern is the notion that, perhaps, the Sages enacted the law to return stolen objects even after renouncement of ownership by the original owner only in the event that the objects were taken from the owner through the crime of theft. War, however, generates a completely different status. It is generally accepted that “the spoils of war” belong to the victor.(See Gittin 38, also Sanhedrin 94b) This argument is deemed without legal merit for the Nazis never obtained the possessions of the Jews as “spoils of war” acquired by victors. The Nazis by vicious coercion simply looted and unlawfully confiscated Jewish treasures. Jewish possessions were not “spoils of war” but, rather, unlawful crimes of theft. Indeed, after the war when the looted possessions of the Jews came into the hands of the American army, there never was even a thought that the items were “spoils of war” but simply stolen goods that legally and morally must be returned to the original owners.
(HaRav Yosef Shalom Elyashuv, Responsa Kovaitz Teshuva, Siman 217, pp.432-435)
Such a ruling truly emphasizes the moral underpinning of the ordinance set up by the Sages and recorded into law by the Rama: namely, theft, once detected, must be returned to the original owner. This rule overrides general legalistic arguments.
Rabbi J. Simcha Cohen