By Rabbi Yair Hoffman for 5tjt.com
It happened in Massachusetts in a store called “Lucky Spot.”
A woman, Lea Rose Fiega, had tried to throw out a lottery ticket worth $1 million but had thought that it was a loser. She did not fully scratch off the ticket.
“I was in a hurry, on lunch break, and just scratched it real quick, and looked at it, and it didn’t look like a winner, so I handed it over to them to throw away,” Fiega said Monday.
The ticket sat in the store for 10 days until Abhi Shah, son of the store owners, noticed the not fully scratched off ticket.
“I scratched the number and it was one million dollars underneath,” Shah told a local TV station (WWLP).
WHAT IS THE HALACHA?
The family knew that the ticket belonged to Fiega, but wasn’t sure what to do. Ultimately, they decided to give it back to her. Our question, however, is what is the halacha in such a case? [This is, of course, assuming that all involved were followers of halacha.]
THE SHORT ANSWER
The short answer is that it is complicated and seems to involve a debate between the Ktzos and the Nesivus. Who knew that the million dollar lotto case would involve such a classical halachic debate?
THE LONG ANSWER
There is a fascinating debate between the Tur and the Rambam (CM 261:4) in regard to someone who throws his wallet in the public thoroughfare. Is it hefker – ownerless, like the Tur and the Ramah hold? Or is it considered a lost object, the position of the Rambam and the Shulchan Aruch, it is just that there is no obligation to return it, because the owner willingly threw it. The latter authorities hold that the finder may not take it because it is not considered Hefker – ownerless.
THE KRISUS GEMORAH
There is another relevant Gemorah in Krisus 24a, where there is a debate between Rav Yochanan and Raish Lakish regarding an ox that was killed and the owner relinquished ownership. Afterward, the witnesses testifying about the ox were found to be aidim zomemim – they were seen elsewhere – not at the place where they had given testimony that they were there. Was the relinquishing of ownership valid? Rav Yochanan rules that it nonetheless is considered relinquishes. Raish Lakish rules that it is an erroneous yei’ush and invalid.
Most of the Poskim who deal with the Gemorah in Krisus distinguish between a lack of existent knowledge and something that developed afterward, such as that the aidim became invalid afterward (See Pischei Teshuvah CM 241:3). These Poskim hold that if the yei’ush was on account of an error – it is not considered yei’ush.
The Gemorah in Bava Metziah 66b deals with the issue of mechila in error, initially wanting to conclude that it is still considered mechila. And there is a debate as to how to understand Rashi’s position in that Gemorah. The debate is between the Rosh and the HaGaos Ashri.
THE KTZOS VERSUS THE NESIVUS
Rav Aryeh Leib HaCohen Heller (1745–1812), author of the Ketzos HaChoshen, in CM 142:1, understands the Hagaos Ashri as holding at the end that a Yei’ush that was based upon an error is still considered Yei’ush. There are two elements involved in a transfer – the thoughts of the “giver away” and the thoughts of “the receiving party.” Granted that the “giver away” person’s thoughts may not be effective, but the thoughts of the “receiving party” do work – according to the Ktzos.
Rav Yaakov ben Yaakov Moshe Lorberbaum of Lissa (1760-1832), author of the Nesivus HaMishpat, writes (CM 142:3), following the Rosh, on the other hand, would hold that it would not be effective and that there was always an obligation to return the item. He holds that an erroneous renouncement of ownership is not considered a renouncement. He rules with the Rosh’s understanding of Rashi.
HOW DO WE PASKIN?
The Shach (CM 209:5) seems to hold with the Nesivus’s understanding, as does the Vilna Gaon (in CM 66:78).
KIM LI K’HANI POSKIM
There is a concept in halacha (See EH Bais Shmuel 159:56) that the person who is muchzak, or holding onto the item can say, “I hold like the position of Posaik X – even if Posaik X is a minority opinion – as long as it does not go against the Shulchan Aruch or established halacha. This is called, “Kim Li.” The question is, does the position of the Shach, Vilna Gaon and Nesivus, set aside that of the Ktzos to the point where Mr. Shah [were he a halacha following individual] would be unable to use Kim Li?
I posed this question to Rav Herschel Ausch Shlita, formerly the Av Beis Din of Dayan Roth zt”l. He ruled that in such a case, one cannot say Kim Li against these three Gedolei HaPoskim – notwithstanding that the Posaik one is holding with is the Ktzos.
A STUDENT’S QUESTION
A student of mine, Nechama Kolodny, posed the following question: Let’s say the store owner wants to give the money entirely to Tzedakah? Would the use of Kim Li, if it were applicable, be justified and warranted then? Rav Ausch explained that Kim Li means that it is entirely yours from the perspective of halacha. It would therefore be fully counted as Tzedakah and a Mitzvah to do.
BACK TO OUR BODEGA
If, however, the ticket was already thrown out and not found in a pile in the bodega – and it was lost to him and to all people, the halacha would be that the son of the owners could have kept the ticket. It is just that it would be lifnim m’shuras hadin, beyond the letter of the law – but the right thing to do – to give it back to her.
===PLEASE HELP! THERE IS A FAMILY IN NEED OF ASSISTANCE WITH A CHILD IN DIRE NEED. Insurance will not cover it.===
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One Response
The person who threw away the lottery ticket did not know it held money, so it’s like giving away a coat and not knowing that there is a ring in the pocket, or like the recent stories with the desk and the couch. The money found was returned to the owner.