Photo Credit: Jewish Press

The fiery spirit of Lag B’Omer was in the air. Groups of children of all ages were scavenging for whatever scraps of wood and branches they could find. They hauled the wood to an abandoned lot, where each group piled its wood to prepare a bonfire honoring R. Shimon b. Yochai.

Mostly, the wood was individual branches or pieces of lumber. Sometimes, the children would come upon a “treasure” – a broken wooden pallet tossed from a construction site.

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“Look!” seven-year-old Shlomie called out to his friends, “someone put out a broken coffee table for garbage collection.” He loaded the broken table onto his cart and transported it to the woodpile, to be burned in the bonfire.

Yankel, a ninth-grader, saw them dumping the table on the woodpile.

After Shlomie and his friends returned home, Yankel went over and examined the table. “It needs some repair,” he said to himself, “but would be just right for our clubhouse. The little kids are foolish to burn this.”

“Look what these kids plan to burn!” Yankel exclaimed to his friend, Boruch. “This table would be perfect for our clubhouse. Help me take it over.”

“You can’t take it without their permission,” said Boruch. “They found it and it’s theirs! If you want, we can offer them other wood tomorrow, in place of the table.”

“Do you really think it’s theirs?” asked Shlomie. “They’re only kids.”

“They found it,” responded Boruch. “What difference does the age make?”

“You really think that a child has da’as, legal intent, to be able to acquire something?” asked Shlomie. “It’s probably still considered hefker – disowned property.”

“I think it’s theirs,” insisted Boruch. “Let’s check with Rabbi Dayan on the way home.”

“A child acquires a hefker item that he found,” said Rabbi Dayan. “The precise halachic status of this acquisition is a fascinating discussion, though.”

The boys asked him to explain.

“Although a minor does not have da’as, the Sages instituted that taking from a child what he found is considered theft mipnei darkei shalom (to avoid fights),” explained Rabbi Dayan. “As such, the Gemara says the thief must return what he took, but it is not enforceable in beis din, which by the way is against the opinion of R. Yosi, who held that the Sages instituted enforceable ownership.” (Mishnah Gittin 59b; B.M. 12a)

“Elsewhere, though,” continued Rabbi Dayan, “the Gemara [Gittin 64b] teaches that a young child who discerns between a worthless item, such as a stone, and a usable one, such as a nut, tzror v’zorko, egoz v’notlo, acquires for himself but not for others. It indicates that he has full legal acquisition, even of biblical nature.” (Nekudos Hakesef Y.D. 305:11)

“How do we resolve this discrepancy?” asked Boruch.

“Many Rishonim distinguish between something the child found and took on his own, which is only rabbinic mipnei darkei shalom, and something granted to him by an adult,” replied Rabbi Dayan. “When an adult grants, his intent can transfer, da’as acheres makneh, so that even a young child acquires from him with biblical nature.” (Rama C.M. 243:15; 270:1; Pischei Choshen, Kinyanim 11:31; Aveidah 9:23)

“The Shach [C.M. 243:6], however, questions this distinction and rules based on the Yerushalmi, that even a young child acquires what he finds with full biblical, legal capacity,” added Rabbi Dayan. “He applies darkei shalom to a very young child, below the age of discernment. Later achronim, though, reject the Shach’s interpretation of the Yerushalmi. They accept the Rama’s distinction between an item taken by the child and one granted by others, whereas a very young child does not acquire at all.” (Machaneh Ephraim, Zechiya #4; Ketzos 243:5; Nesivos 243:9)

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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to [email protected]. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail [email protected].