Q&A: Found in an Old Wall
Found in an Old Wall
Question
Hello Rabbi!
In the Mishnah in Bava Metzia: "If one found something in an old wall, it belongs to him."
The Tosefta explains: because he can say, "It belonged to the Amorites."
Are the Amorites just an example of other owners of the house? If so, why specifically Amorites? Or does it mean specifically Amorites, in which case there is no obligation to return it because they are gentiles?
Answer
An interesting question. At first glance, the claim about the Amorites shows that it refers specifically to gentiles, for otherwise why invoke the Amorites? But it is possible that "Amorites" comes to exclude Jews, because if it had belonged to a Jew then it would have belonged to the ancestors of the current holder of the property (especially when there was still a prohibition on transferring inherited land).
In the halakhic authorities it seems that this depends on whether one can estimate that the item was deliberately placed there or not. If it was placed there intentionally, then if the one who placed it there was a Jew, it remains his forever, and not because there is no obligation to return something to the Amorites.
And the Rosh there, sec. 9, writes:
The Talmud says: The tanna taught, because he can say to him, "They belonged to the Amorites." And one’s courtyard does not acquire for him something that is not destined to be found. And so too it is proven later on (27a) regarding one who buys from a merchant, where it says, "these belong to him," and it does not say that the merchant acquired them when they were in his possession, since they are not apt to be found. And one can further say that what remained hidden from the Amorites did not belong to the one in whose share the land fell, because the spoils were divided among all Israel, and after it remained there it is considered lost from all Israel, and therefore it belongs to the finder. And if you should say: let his courtyard acquire it for him after the Jews despaired of it—his courtyard is no better than his hand. For if it came into his hand before despair, then he does not acquire it, since it came into his possession through prohibition; therefore his courtyard as well, in such a case, does not acquire it for him. And since the first one did not acquire it, so too his son and grandson did not acquire it. What, only Amorites hide things and Jews do not hide things? No, this is needed where it is very rusted/corroded, and it is evident that it had been lying there for many days; and even if the wall had belonged to his ancestors for many years, and it is possible that it had been rusting from the time his ancestors put it there, nevertheless, since it can be attributed to the days of the Amorites, and no Jew was ever established as possessing this money, it belongs to the finder.
At the end of his words, it seems that he makes it depend specifically on the Amorites.
And likewise in the Maggid Mishneh, Hilkhot Gezeilah va'Avedah 16:9, and in the Rashba, it is written that this applies specifically to property of gentiles.
Discussion on Answer
1. I think that depends on the two explanations above. If we are talking about Amorites, then the assumption is that the house was passed down by inheritance within the family.
2. As above.
3. Presumably, the outer part of an old wall was used by outsiders to place things there, so there should be no difference between an old wall and a new one.
From the Amorites it follows that the house was taken, not purchased. And in such a situation, whoever comes first acquires any object in the area that no one has yet taken ownership of.
If it had been some other gentile from whom the house was purchased, that argument would not work.
Thank you very much, Rabbi, for the quick answer.
I have a few more questions for clarification, if I may.
1. Is the definition of an "old wall" that we are talking about a wall of a house that has been passed down by inheritance within a family, or an old house that has gone through several different owners?
2. What is the main reason that the lost item belongs to the finder? If it is a house passed down within a family, then it belongs to the homeowner {it belongs to the family}. Maybe that is why the Talmud attributes it to the Amorites—to say that there is also a possibility that it does not belong to the family. And if it was not passed down within a family, then the finder could simply claim that it does not necessarily belong to the current owners but to previous owners, who presumably already despaired of recovering it.
3. Why doesn’t the Talmud discuss the case where he found it on the outer part of the wall, in an old wall?