Q&A: Questions Regarding Ownership and Despair
Questions Regarding Ownership and Despair
Question
Hello and blessings to our dear Rabbi, from whose every word we benefit so much!
I wanted to ask several questions regarding ownership and despair:
A. Is partial ownership considered ownership? Let me illustrate what I mean: if I bought a Canaanite slave, but the state forbids keeping him, am I considered his owner even though I have no control over him and my use of him is restricted by the state? (After all, at most I could only use him discreetly and only for very limited purposes, so as not to expose myself to the authorities.)
B. The Hazon Ish (Bava Kamma 18:3) cites Netivot HaMishpat, who holds that an object whose owners have despaired of recovering still belongs to the owners, except that there is permission for someone else to acquire it. And the Hazon Ish writes about this that as long as there is no control, there is no ownership. On the other hand, Tosafot (Yevamot 45b) write that Herod is called a slave even though he was king, since his owners had not despaired of him. Seemingly, this proves not like the Hazon Ish: even though they had no control over him, it is nevertheless not considered that they despaired of him and that he left their domain; rather, he still remained in their domain, and therefore he is called a slave.
Is it possible to learn from here that the Hazon Ish and Tosafot understood the issue of ownership differently? That according to the Hazon Ish we require actual control, whereas according to Tosafot all that is required is that there not be despair?
I would be happy to receive an answer to these two questions. Thank you!
Answer
Good questions. I think the general formulation does not allow for a clear answer. Partial ownership is partial ownership. It can be considered ownership for one matter and not for another.
For example, something that is his but not in his possession, or in his possession but not his (such as an owner and a robber), cannot be consecrated.
A restriction on use by the state, or in general, should not impair ownership. Does collecting taxes mean that I am not the owner of my property? Perhaps this is like the dispute over whether there is ownership of things from which benefit is forbidden, but simply speaking it is clear that there is. And likewise in the dispute regarding land that reverts in the Jubilee year, whether there is ownership of the principal asset itself (though ownership of the principal for the sake of its produce certainly does exist).
As for a slave, whether he is called a slave or not does not depend on ownership. And the case of someone whose bill of emancipation is being withheld proves it, since he is still called a slave even though his master has no monetary right of use over him.