Question:
Reuven was shopping in the Shuk (marketplace), and stopped by a vegetable stand to purchase tomatoes. He wished to select the choicest ones, and placed his other shopping bags from previous purchases at his feet while picking them out. After paying for the tomatoes, he picked up the bags at his feet and went home. Upon opening his bags, he realized, to his surprise, that the groceries in them were not his! Amidst the hustle and bustle of the Shuk, someone else at the same stand who finished buying tomatoes before he did must have taken his bags and left their bags instead.
Is Reuven permitted to use the groceries in the bags that were switched with his?
Answer:
There are many factors involved in answering these questions, as follows:
- Reuven is permitted to use the groceries that were switched with his and are now in his house, if their value is less than the groceries that he lost. [Obviously, this is only in a situation where it is clear that they are Kosher. In Israel this is a little more complicated than in other places, since loose fruits and vegetables may have Kashrus problems, such as Arlah (fruit from a tree three years old or less), Shvi’is (fruit grown during the seventh year of the Sabbatical cycle), and separation of Terumos and Maasros (tithes).]
- If the produce that Reuven had purchased was worth more than the produce he received after the switch, he need not take any further action, and may consume them as he wishes. However, if the produce that he discovered upon returning home was worth more than what he had purchased, it is necessary for Reuven to record on a piece of paper the details about the produce that he brought home, such as how much they weigh, how much they cost, where they were taken from, and what types of fruit and vegetables they are. He should store this document with his other important papers, so that when Eliyahu HaNavi comes he can clarify who the actual owner is, and return the difference in the value of the switched produce to him. After doing so, Reuven may use the produce as he wishes. (1)
Sources:
(1) If we would be certain that whomever took Reuven’s bags realized his mistake before Reuven picked up the bags that he had left behind, Reuven would have no obligation at all according to Halacha to return the produce to the second person. This is because he most certainly would have immediately given up hope of ever receiving his produce, since a Shuk is not a place which is protected (Mokom HaMeshumar), and there is a very slim chance for such a person to ever get back what he lost there. Consequently, anyone who finds any bags in such a situation may keep them for themselves, even if their own had not been taken. This is true even if there were Simanim (identifying marks) on the bags, as is stated in the Shulchan Oruch, Choshen Mishpat 267:7.
[It should be pointed out that this would not apply in a case of switched shopping carts outside of a modern day supermarket, where there is one manager, and it is common for people to call and report if their bags were switched by mistake. It can not be assumed that a person would give up hope of ever getting their bags back, even if we were certain that they realized their mistake before we took their bags.]
However, since we really can not be certain that Reuven picked up the switched bags before their owner realized his mistake, and the probability actually is that the owner was not aware that he had lost his produce until later, whereas Reuven picked up the bags a short time after the switch, Reuven became obligated in the Mitzvah of Hashavas Aveidah – returning lost possessions – before the owner had a chance to give up hope of ever receiving his possessions back. Although he may have given up hope after returning home and realizing his mistake, this does not relieve Reuven of his obligation to perform this positive Mitzvah. He must therefore wait until the arrival of Eliyahu Hanavi, who will tell him whom he should return it to.
On the other hand, since we do not know when Eliyahu Hanavi will actually come, and if Reuven would keep the fruits and vegetables until such time, it is possible that they will be worthless by the time he does come, the proper Halachic procedure in this case is as follows:
Reuven should estimate to the best of his ability the value of the fruit which is more than what the other person received, and record that amount and any identifying factors, as we stated above in a document to be stored with his important papers. After doing so he is permitted to use all of the produce, as is stated in the Gemara in Bava Metziah, and the Shulchan Oruch (Choshen Mishpat 267:21-25).
The Halacha as stated above is only if Reuven received more produce (in value) than he lost, in which case he owes money to the person who switched the bags. If Reuven received less than what he lost, he is permitted to use the produce that he brought home without reservation and without any further action. This is stated in the Rosh (Bava Kamma, Chapter 6:12), and is stated as the Halacha in the Shulchan Oruch, Choshen Mishpat 359:2. In this case, the other person is the one who must take the course of action that we describe above, until such time that he can identify Reuven and return his loss to him.
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This week’s class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His column originally appears in Hebrew in Toda’ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.
Feedback is appreciated! It can be sent to[email protected].
This week’s class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda’ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!