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3155
Ruling: The Pitchei Teshuva (Choshen Mishpat 285:3) brings a machloket among Acharonim regarding a case where it is not known who the deceased’s inheritors are, whether he who has possession of the property (muchzak) keeps them or whether a custodian is appointed for them. The Sh’eilat Yaavetz (I, 142) and Chatam Sofer (CM 122) take the former approach. The Maharam Lublin (12) says that the muchzak cannot acquire the property since everyone has some level of relative and whoever it is, even if we do not know who, owns it.
The Maharam Lublin’s question appears to be a powerful one, as what force can expropriate the property from its halachic owner. In truth, the aforementioned poskim discuss cases where there are inheritors who can be located, just that beit din has yet to ascertain who. In contrast, in our case, the deceased had searched for years for relatives and found none. Since it is unlikely that any inheritor will ever be identified, beit din ruled that the property becomes hefker (ownerless) and the widow is able to obtain it.
The basis for this ruling is the Talmudic concept of zuto shel yam (the swelling of the sea, which takes property out to sea). The gemara (Bava Metzia 22b) learns from the pasuk regarding the returning of lost objects that one returns that which is "lost from him and you find" that objects that are lost from everyone need not be returned. So rules the Shulchan Aruch (CM 259:7) regarding one who saves an object from a lion, a bear, or zuto shel yam. The Rishonim say that the object becomes hefker even if the owner did not have ye’ush (give up hope of retrieving the object), which is usually what makes something hefker.
Similarly, the Rambam (Gezeila Va’aveida 16: 7-8) says that if an object is found after a long time in someone’s property in a manner that no one was likely to find it for a long time, then the owner of the property where it was found did not acquire it. Again, that which is not accessible to mankind is not acquirable, as we learn from zuto shel yam (see also Tosafot, Bav Metzia 26a and Beit Yosef, CM 260). So too here, the unknown inheritors are unlikely to ever be able to claim the property, and they cannot maintain ownership.
The Rama (CM 276:4) says that when one whose father is unknown dies, his property becomes hefker. The K’tzot Hachoshen (256:1) asks why we do not treat it as a doubt who the inheritor is and leave it untouched. However, the Netivot Hamishpat (ad loc.) says, as we have said, that when no one will be able to claim the property, it becomes hefker.
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