Q: I was in an antique shop, and I found something I wanted to buy. The store owner told me that he’s happy to sell it to me, but explained, in the process of processing my purchase, that this item had actually been bought already, by a buyer who forgot it in the store. Several months had passed since then, and the buyer never came to claim it. He did not remember who the buyer was, so he couldn’t contact him.
When I brought the item home and told my husband what happened, he said he wasn’t sure that I was allowed to buy the item, because it belonged to the first buyer, not to the store owner, and that I might have to return it.
Is he correct?
A: The item you bought is an aveidah (lost item). It is most likely that the first buyer already noticed that he lost it, but didn’t remember where he misplaced it and was meya’eish (despaired) of retrieving it. The halachah is, however, that if someone finds an object prior to yi’ush, the subsequent yi’ush does not make it his, because at the time he found it he was obligated to return it. The halachah is, therefore, that it must be set aside until Eliyahu Hanavi arrives and reveals to whom it belongs (Shulchan Aruch, Choshen Mishpat 362:3). If the store owner lifted the item (thereby making a kinyan) for the first time only after yi’ush, then it became his at that point, and he was therefore allowed to sell it to you (Nesivos 362:1; see, however, Shach 362:1&368:2).
Although the object came into your hands after yi’ush, at which point it was not prohibited for you to take possession of it because you have no obligation to return it (see Divrei Mishpat 360:2), there are Poskim who rule that you still have no right to acquire it (Ritva Hayeshanim, B. M. 21b), while others say that the Rishonim are in dispute as to whether you may acquire it (Imrei Moshe 37, Mishnas Hamishpat 181-182, Kehillos Yaakov, B. M. 25:6).
In our times, when most objects are readily available for sale, the Poskim write that rather than set the object aside until Eliyahu Hanavi arrives, the person who found it may write down all the identifying characteristics of the object (i.e., where he found it, the amount, etc.), which can easily be achieved by taking a picture of it with any identifying characteristics clearly visible, and saving the picture by sending it to an email address. He may then use the object (or sell it or throw it out). If witnesses later testify as to whom it belongs, or when Eliyahu Hanavi comes, the finder will then return its value to the owner (Mishpitei HaTorah, B. M., Hashavas Aveidah 2:13).
This applies only if the finder will be able to compensate the loser when he is required to do so. But if he found a large sum of money, and it is possible that if he spends it, he will not be able to repay it when the time comes, then he must set it aside and wait for it to be claimed (see C. M. 367:27 and Hashavas Aveidah K’halachah 6:3).
In your case, if the store owner’s intention was that he would sell this item to you and compensate the buyer if he eventually returns to claim it, it may be okay for you to keep it. It is a weak assumption, however, that this was the store owner’s intention. Perhaps you may keep it if you decide that you will compensate the first buyer if he ever comes to claim it.
The problem with the above logic is that since an antique item is unique, it is possible that neither one of you will be able to compensate the buyer adequately, because he may want the specific item he chose. The sale to you was therefore prohibited.
But even if we consider the store owner a thief for having sold an item that wasn’t his, you were not allowed to buy it l’chatchilah, because you were helping him finalize his act of theft (C. M .369:1 with Nesivos 1). Nevertheless, b’di’eved you may keep it, because the halachah is that although a thief has an obligation to return a stolen item and may not keep it even after yi’ush, since in your case the yi’ush is accompanied with a shinui reshus (change of location), that is, when you purchased it and took it home, you are not obligated to return the actual item, and the thief — i.e., the store owner — has a monetary obligation to the original buyer (ibid. 353:3&356:3. Also see Pi’schei Choshen, Geneivah, 12, fn. 27).
