Q. A bachur in my yeshivah typed up and printed a kuntres (pamphlet) that included some divrei Torah. After editing the initial manuscript, he wrapped up the old version and placed it in the genizah pile in yeshivah. I have asked him, several times, for permission to make copies of the kuntres, and he refused. Now that it’s sitting in the genizah, am I permitted to take it without his knowledge?
A. If someone abandons an object in a place where he knows that it will likely get lost, that is called aveidah midaas, and the Torah does not obligate the finder to return it (Shulchan Aruch, Choshen Mishpat 261:4). Some say that the finder may even take the object for himself, just as he would be permitted to take an item that is hefker (ownerless; Tur, cited in Rema ibid. and Shach 3). Others maintain that while the finder is not obligated to return it, he may not take it for himself (Rambam, cited by the Mechaber, ibid.).
Some Poskim differentiate based on the circumstances. If it is obvious from the owner’s actions that he is mafkir (relinquishes ownership of) the object, then the finder may take it. (Although generally the owner must declare that he is mafkir his object in order for it to become hefker [Choshen Mishpat 273:3], in this case, his actions alone are enough.) For instance, if after someone threshes his wheat in a field, he takes most of the grain with him and leaves a little behind, since it is obvious that he no longer plans to take what remains, it is hefker and anyone may take it (ibid. 260:7).
If, however, the owner’s actions do not make it obvious that he plans to be mafkir the item, but merely show that he doesn’t care if it gets lost or damaged, then the item is not hefker.
According to this approach, if someone throws an object into a garbage that is going to be carted away, it is clear that it is hefker, because the owner knows that someone who finds it there won’t bother to locate the owner (Shach ibid.; Machaneh Ephraim, Hilchos Zechiyah m’Hekfker 6; Nesivos 261:1; cf. Sma 260:54).
It would seem, thus far, that the kuntres placed in genizah should be hefker, and you should therefore be allowed to take it.
Further Considerations
There is a question, however, from a Gemara (Bava Kamma 26b, according to Rashi’s interpretation) that teaches that if someone threw his own object off a roof, and another person smashed it with a stick on its way down, the second person is not obligated to pay for destroying it, because “he broke a broken vessel”; since the object was clearly going to break when it hit the ground, we consider it broken even before he hit it with the stick, and he is therefore not liable for destroying it.
The Rosh (Bava Kamma 2:16) wonders why we need to resort to this logic to exempt him from payment. Based on the above halachic principles, we can deem the owner’s lobbing it off the roof an act of aveidah midaas, which should have made it permissible for the second person to catch it and take it for himself. In that case, he certainly shouldn’t be liable for breaking it, so why invoke the rationale of “he broke a broken vessel”?
Some Poskim infer from this Gemara that when a person throws something away, but he has a specific purpose for doing so, it does not become hefker. For instance, if someone threw an object in anger, his intention is to break it and soothe his wrath. He does not want someone to rescue that object and use it, because his anger will not abate if it does not break. It therefore does not become hefker, and if a person then smashes it midflight, the only reason to exempt him from liability is that “he broke a broken vessel” (see Machaneh Ephraim loc. cit.; Shu”t Beis HaLevi 1:24; Dvar Avraham, note to 1:15; Ulam Hamishpat 261:4).
According to the aforementioned Rosh, however, it is hefker.
Another example is if a greengrocer throws out old produce. He does not want anyone to take it, because then they will not buy fresh produce.
Returning to your question, since the person who wrote the kuntres does not want you to take it, but he wants it to be buried with the genizah, he was not mafkir it, and therefore, according to some Poskim, you may not take it (Dinei Mishpat pg. 401).
Additionally, you might violate the cherem (edict of excommunication) instituted by Rabbeinu Gershom against reading another person’s private documents or correspondence (see Yoreh Dei’ah 364 in Be’er Hagolah). If, however, you want to read that kuntres to publicize the divrei Torah that he wrote, it might not be prohibited (see Sema 292:45 and Shach 35).
