Q&A: The Parameters of Ownership
The Parameters of Ownership
Question
I saw in the responsa Minchat Shlomo, part 1, sec. 86, a major novelty: that even according to those who disagree with the Yere'im, and hold that one who robs a gentile—according to the view that robbing a gentile is permitted—acquires the stolen item and it is considered "yours," nevertheless the gentile may seize back what is his from the Jew who robbed him. His language is: "I also think, by logical reasoning, that even if we do not say like the Yere'im, nevertheless the non-Jew can go back and snatch from the Jew what he robbed from him, and the Jew cannot sue him in court and have him liable for death as a Noahide who is executed for robbery. For since the Jew merely robbed it from the non-Jew, it is entirely unreasonable to regard the non-Jew as a robber; because even if we say that it is considered 'yours' and one can thereby fulfill the commandment of the etrog, that is only because with respect to the whole world the Jew is considered the owner, except with respect to the previous owner, who can go back and snatch it from him."
I do not understand this novelty at all. How can he be the owner of the property to the point that it falls under "yours" for the four species, and yet the gentile victim is permitted to snatch it back? If so, then "yours" is lacking. And furthermore, why is there no robbery here against the Jew's status of "yours," since he loses it in this way?
Does the honored Rabbi agree with the above novelty? If possible, at whatever length you can.
And to add further: would Rabbi Shlomo Zalman Auerbach of blessed memory say this as well regarding any case of robbery from a Jew after the acquisitions of robbery, such as change, despair, etc.—that even though it is his and counts as "yours," nevertheless with respect to the robbery victim his ownership still remains, allowing him to take it out of the robber's possession without violating robbery?
With thanks and blessings
Answer
Seemingly, these ideas parallel what Rabbi Shimon Shkop wrote in Gate 5: that ownership preceded the Torah's commandments (= the laws of civil justice), and is the foundation for the law of "do not rob" that the Torah established. From this he concludes that robbing a gentile is forbidden according to all views by force of the laws of civil justice, even according to the positions that hold that the Torah prohibition of "do not rob" does not apply here.
According to this, it is not reasonable that there should be a rule of "yours" here, and in fact the Yere'im explicitly wrote this, as cited in Sha'arei Yosher there. But Rabbi Shlomo Zalman may have held that Torah law removes the prohibition of robbery and overrides the laws of civil justice, and therefore in his view this does count as "yours." But at the same time, the gentile's legal ownership under the laws of civil justice, even according to Rabbi Shlomo Zalman, remains intact alongside the ownership that exists under Torah law. Therefore when the Jew robs, we judge him by our law, and the etrog is his. But if the gentile comes back and takes it from him, then under his own law he is in the right, since for him there is no Torah law, only the laws of civil justice; and it is not reasonable to treat him as a robber if under his law he acted lawfully.
However, my inclination is toward Rabbi Shimon Shkop, and it seems obvious to me that it is not considered "yours" even if there is no Torah-level prohibition of robbery, as he cites there in Gate 5 from the Yere'im. I find it hard to accept that there are two parallel systems of ownership with different outcomes and no resolution between them. Something similar arises in the discussion whether a rabbinic acquisition is effective on the Torah level; there too, the main debate is whether two parallel systems of ownership can exist with different consequences. Here too, in my humble opinion, it is obvious that such a thing is impossible, and therefore a rabbinic acquisition certainly does work on the Torah level.
Discussion on Answer
I didn't understand the question. Do you mean a gentile who robbed a Jew and has acquired it through the legal mechanisms of robbery? How is that different from any gentile property which, in his view, may be robbed? Or perhaps you mean a Jew who robbed a gentile and acquired it through the legal mechanisms of robbery, in which case the gentile also cannot take it back from him. I do not know whether in his opinion the acquisitions of robbery are considered valid under the laws of civil justice. I have serious doubts about that. In the simple sense, they belong to Torah law and not to the laws of civil justice, and therefore according to the above explanation I gave (in the previous message), regarding a gentile it makes no practical difference whether the Jew has acquisitions of robbery.
What I meant was clear in the first question: whether according to Rabbi Shlomo Zalman, if a Jew robbed another Jew and effected acquisitions of robbery such as change, despair according to the view that it acquires, and the ordinance for penitents—in all such cases, would the victim be able to snatch it back, since the robber's entire acquisition came to him through robbery and not through sale and purchase, just as in the case of robbing a gentile. But according to what you explained, that the gentile is judged by gentile law from the standpoint of property law, then there is already room to distinguish.
But I still did not understand your point: why is the gentile judged, in his snatching it back, only by property law? They too have a law and prohibition of robbery apart from property law.
Maybe it was clear, but not to me. And it still isn't clear to me. The victim cannot snatch it if Jewish law determines that it belongs to the robber.
For gentiles there are no laws of robbery apart from the laws of civil justice. The laws of civil justice are universal law, and they are the Noahide laws.
Many thanks for the short and clear answer. From his words I understand that Rabbi Shlomo Zalman of blessed memory would indeed agree that in the case of robbery from a Jew, after the acquisitions of robbery, the victim would not be able to snatch it back.