by R. Aryeh Klapper

The Business Halacha Institute is dedicated to the highly worthy cause of “Restoring the Primacy of Choshen Mishpat”. The Institute recognizes that a Judaism confined to ritual is impoverished, and that it is a stunning indictment of contemporary Orthodoxy in all its flavors that its members generally see halakhah as irrelevant to their financial relationships and affairs.

I agree, and I further believe that the project of reclaiming Choshen Mishpat can bring scholars and community together and make a significant contribution toward undoing the pervasive cynicism that often governs their relationship when questions of ethics arise. My hope is that what follows will generate a discussion that helps reverse these negative situations.

Among the Institute’s many programs is a weekly printed newsletter that presents contemporary vignettes and provides halakhic commentary on them. A recent vignette (Parashat Metzora) involved a person ordering a cab and, during the subsequent ride, finding a one hundred dollar bill on the floor. The question was: May the passenger keep the money? Must the passenger give the money to the driver? Must the passenger announce finding the money?

The newsletter’s analysis addresses the following issues in the following ways:

Q1. Has the person who lost the money realized the loss? If yes, have they abandoned hope of reclaiming it? A1. The Talmud states that people check their wallets regularly, and so the owner would have realized that it was lost. Since money has no identifying mark (סימן), the owner has also abandoned hope of reclaiming it. Q2. A person’s physical space (“courtyard”) is halakhically capable of acquiring objects for them, and utensils can under some circumstances play the same role (a reference is made to the exclusion of some “moving courtyards”, but this category is presumed not applicable to cars). Has the cab automatically acquired the money on behalf of the driver? A2. Money found in a store, in an area where customers regularly go, belongs to the finder. This may be because such an area is for practical purposes public, and so the storeowner has no expectation of obtaining any money lost there. (Shakh 260:18). Furthermore, at the moment the money was dropped, its owner was unaware of the loss had not yet abandoned hope of reclaiming it. (Shakh 262:1 and 282:1) Therefore, if the cab is capable of acquisition, all it acquired was an obligation of returning the money. Finally, a taxicab may be like a rental property, and the owners of such properties do not acquire property left behind by tenants, as they presume the next tenants will find such property first and keep it (Ketzot 200:1). Q3. What if you found a more identifiable object, such as a wallet? A3. You would be obligated to call the cab company and ask them to contact you if anyone calls claiming to have lost something in that cab.

There is much room here for discussion of the precise meaning of the precedents and of which precedents are authoritative. But I want to take those as given, for the sake of the broader conversation about how we can best reclaim Choshen Mishpat.

Here are two fundamentally divergent judicial approaches:

The first approach, which I will term “analogist” or “common law”, decides cases by finding the most similar precedent and ruling the same way. It is a given of this methodology that not all cases are on “all fours” with any specific precedent, but the goals is to find the narrowest gap, not to address the uniqueness of a particular case. (This is related to Chazon Ish’s position, in contrast to SHAKH, that there cannot be a case which Halakhah does not address; there must always be a case which has the narrowest gap, and the halakhah should be taken from that case.)

The second approach, which I will term “rationale-ist”, seeks to decide cases in accordance with abstract principles. Those principles are generally derived from precedent, but they may also be generated from natural law, religious or moral intuition, or creative textual interpretation. In this approach it may well be proper to decide a case in a manner that differs in practice from all close precedents on the ground that social or physical or intellectual or religious circumstances have changed.

Each of these approaches has its virtues. But I contend that a common law approach is most viable when it represents a live tradition, so that the constant process of applying precedents keeps their meaning fresh and generates new cases that will often be almost exactly analogous to what follows them. A common law approach can be unhelpful when one seeks to revive a tradition that has lain dormant during a period of tremendous upheaval.

So for example: Students are often taught that Bava Kamma is immediately relevant because “What’s the difference between two oxen goring each other, and two cars crashing into one another?” From a common law perspective, it is possible to argue that oxen are the closest precedent we can find to cars. But students will recognize immediately that cars have no independent volition; that they are directly controlled by their driver; that they are primarily intended for transportation rather than for work; and so on. Very few will see it as reasonable to have the outcome of cases depend on whether the car has been involved in prior accidents, rather than the driver. It Is possible to follow the Biblical bovine precendent and legally construct cars that are “tam” and cars that are “muad”, and to have one possible ruling be for both cars to be sold and the total gained split between the parties, but I don’t know that would be best.

Back to our taxi case: Here are some ways that one would interrogate precedent if one were using the rationale-ist approach.

Does the Talmud’s assertion that people “check their pockets/purses regularly”, and therefore presumptively know when they’ve lost currency, apply to paper currency in our day? One might suggest that nowadays people check for their wallets regularly, but don’t take out their bills and count them, and weight is no longer a spur to recheck. Does the Talmudic presumption that “money has no distinguishing characteristic” apply to paper currency, which contains a uniquely identifying serial number? Perhaps with smaller bills one can presume that the owner did not make a record of the number, but is this so with larger bills? Does the existence of cellphones, and receipts (paper or, if paid by credit cards, electronic) mean that the presumption of abandonment (yeush) no longer applies to property lost in taxis? In other words, if a person realizes immediately that the money is lost, won’t their first reaction be to call? With regard to the capacity of space to acquire lost property – are there local laws that would affect the ownership of such property by changing presumptions or duties, or even via dina demalkhuta dina?

I’m also interested in whether, at least where Jews are fully integrated into Gentile society, the first question should not be “may I keep this?”, but rather “is this an opportunity for a Kiddush Hashem”? Indeed, the unexpected returning of lost objects, whether wallets by taxi drivers or inheritances found in desks by rabbis, is a regular source of such sanctification in our society.

Interrogating precedent so rigorously, however, can lead ironically to a reverse paralysis. My teacher R. J. David Bleich shlita, for example, has argued that many changes must be made to existing Choshen Mishpat rulings for halakhah to be functional, but that these changes can only be made by legislation using powers not operative today. Chief Rabbi Herzog z”l also argued for takkanot (which he thinks the Chief Rabbinate could make) in his proposed halakhic constitution for the State.

Both the Beit Din of America and Rav Asher Weiss shlita, however, seem to be taking approaches that allow the appropriation of secular law when necessary to achieve equity, and their work has at least the potential to accomplish a great deal, and to open up the possibility of even more.

In my conversations with a group of the best and brightest of Modern Orthodox shanah baaretz students this past Shabbat, a constant theme was the need to rebuild trust in the ethical leadership capacity of rabbis and halakhah. This cannot be accomplished only by playing defense, and in some areas, such as gender, it is likely that for the time being playing defense is our only option. But Choshen Mishpat, if we are up to the challenge, provides a field in which we can be in the ethical vanguard, and it behooves Modern Orthodoxy davka, with the vast intellectual resources we possess with regard to the law, to meet this challenge.