My neighbour’s father was niftar some thirty years ago and the inheriting family sold his house, their birth home in Stamford Hill, London, to a good friend. The house had not been renovated in the fifty years he lived there and the new purchaser did a complete refurbishment, stripping the house to a shell. In the course of pulling up the wooden floorboards, the non-Jewish builders found boxes stuffed with £40,000 worth of expired banknotes. The bills included white £5 notes and King George currency which were no longer legal tender, so they took them to The Bank of England to be exchanged for current notes. They were questioned by police at a security check as to the source of the funds, and establishing that they were builders, they confiscated the cash and returned it to the owner of the house. The family had previously found hidden cash in the house while the father was still alive. The father recalled that he had concealed it but had totally forgotten about it, so the family was convinced that he secreted this money as well. On the other hand, some of the notes were old white £5 notes, issued years before 1945 when he acquired the house, and there were no post-1945 notes to prove that they were hidden after 1945. The family and purchaser came to an amicable settlement, but this story will be useful to illustrate the halacha of hidden treasure. In order to add an extra twist to our halachic discussion of the issues involved, let us change the story: that the builder who found the cash was Jewish. We now have three potential claimants to the money: the family who inherited the house, the purchaser, and the finder, the builder. Dina demalchusa enters the discussion; whether the hoard is considered mislaid money or ‘treasure trove’ claimable by the Crown. The English law of treasure trove was limited to items of gold and silver, but banknotes which represent gold held by the bank were included. For the purpose of our halachic analysis we shall ignore that angle as it would vary according to country. KINYAN CHATZEIR As a general rule, the physical presence of an object within the confines of already owned property, serves as a kinyan chatzeir, a means of acquiring title even without intent and without knowledge of the existence of the object. The mishna on Bava Metzia 25b appears to rule differently: that where someone finds valuables secreted in an ancient wall the finder acquires valid title. The gemora limits it to items which are very old in appearance, predating the property’s acquisition, so that it can be assumed that the original owner despaired of recovery and that they were not left there by the present property owner. The question is why did the property purchaser not acquire the object, even if he had no knowledge of its existence, in accordance with the general rule of kinyan chatzeir? CHATZEIR NOT KINYAN Rishonim debate why our mishna is an exception to the general rule of kinyan chatzeir. Resolution of our story’s predicament will depend their different approaches, as follows: 1. Tosafos explains that chatzeir does not serve as a kinyan for property that the property-owner may never find, and buried items are unlikely to be discovered. We see from the next mishna in the case of items lost in a shop (26b) that there must be a level of intention to acquire lost-property and the shop-keeper acquires only in shop areas where he is likely to recover items. General intention to acquire is sufficient, but where he is unlikely to discover a particular object, one cannot assume even general intention. In our story the father had previously hidden cash under the floorboards himself, so the likelihood of him discovering cash left by a previous owner would be high. Nowadays it is common to replace wooden floors with tiles, so perhaps a purchaser would likely find it and then kinyan chatzer would give him title. Thus, if the father had hidden the money, then his heirs would certainly be entitled to the money, but even if had been stashed away by the previous owner, if the father was likely to discover it, kinyan chatzeir would operate to acquire it for the heirs. 2. Mordechai (#258) asserts that kinyan chatzeir without intent only applies to lost objects that come into already-owned property but not to concealed items that come into a purchaser’s possession simultaneously with his acquisition of the property, as it does not occur to him that treasure is already hidden there. In our story, if the Jewish builder who found it is muchzak, he may be successful in retaining the cash, as a muchzak retains money where there is uncertainty. 3. Mordechai (#259) cites R’ Baruch of Mayence saying that kinyan chatzeir without knowledge only works for hefker items, but where the original owner thinks that his property has been preserved in a safe place, he would not have abandoned it. Accordingly, if the bills were hidden by the original houseowner, then the two subsequent owners would not gain title to the cash, so the builder would again get to keep it. However, if the father hid the cash, then the inheriting family would gain title, as it remained preserved in a safe place. 4. Mordechai (#260) quotes R’ Avigdor Kohen who maintains that kinyan chatzeir without knowledge only applies in respect of items that are commonly found upon one’s property. Only if he is aware of their possible presence would he acquire with kinyan chatzeir. Since currency is not commonly found in purchased property, chatzeir cannot act as a kinyan. Rema (CM268:3) rules in accordance with this view. 5. Rambam (Gezelah Ve’aveidah 16:8) regards treasure trove that is not likely to be discovered by anyone as “lost to all mankind” and therefore it would be like “zuto shel yam” and the finder can retain it. 6. Rosh, after quoting Tosafos, offers an alternative answer where he does not regard our mishna’s case as an exception to the general rule of kinyan chatzeir. He understands the mishna as applying only to property in Eretz Yisrael and is restricted to valuables acquired by right of conquest; otherwise kinyan chatzeir is effective even without knowledge or intent of the owner. According to this view, outside Eretz Yisrael chatzeir always acts as a kinyan, and the father would have acquired any money hidden by the previous owner. However, Melamed Lehoil (3:57) argues that Rosh appears to agree with Tosafos, but in his alternative answer Rosh provides an additional principle explaining why this rule applies in Eretz Yisrael. Rashi (Vayikra 14:34) quotes a midrash stating that tzaraas was a blessing for the Jews because the Emorites hid treasures of gold in the walls of their houses and as a result of the affliction, he breaks down the house and finds them. Our gemora’s mention of the possibility that treasure found in the wall dates back to the Emorites rather than simply saying that it was from goyim is an allusion to this blessing. Rosh had a difficulty that according to Tosafos, Jews would not be able to claim ownership of treasures discovered in houses acquired in Eretz Yisrael, yet the midrash implies that the hidden items would be their bounty. Rosh therefore explained that Eretz Yisrael was different as they certainly had expectation of discovery because of the tzaraas blessing, but where there was no such expectation, chatzeir does not acquire as per Tosafos. In summary, if it can be established that the cash was hidden by the previous non-Jewish owner, then the weight of the authorities hold that the Jewish builder who found the money would be entitled to keep it. If it could be established that the father concealed it, then it belongs to the heirs. SPLITTING THE CASH Melamed Lehoil asks why poskim do not mention splitting the cash between the parties? Mordechai refers to a story related in Yerushalmi here and Midrash Noach (33:1) where the king of Cassia demonstrated his system of justice before King Alexander. The plaintiff had bought a piece of wasteland from his neighbour and found a treasure buried in it. He claimed that he had intended to buy land only and not treasure, and insisted that the treasure belonged to the vendor. The vendor argued that he had sold the land and all it contained, so the treasure must go to the purchaser. The king of Cassia’s decision was that the two parties’ children should marry and the treasure would ‘stay in the family’. It would appear that midas chasidus would be to divide the money between the parties – why did the poskim not bring this as halacha? He answers that in the midrash story, the field had been a family heritage, so it can be assumed that it was put there by his family generations earlier, but we are discussing property purchased from goyim, who retain no rights to the treasure. Rabbi Schonberg was born in London in 1948 and attended Avigdor, Yesodei Hatorah and Hasmonean Schools. He attended Manchester, Chaye Olam and Gateshead Yeshivos. He qualified as a Chartered Accountant in 1972 becoming a partner at Cohen Arnold and was there in total for 42 years, retiring in 2009. Actively engaging in the Jewish community, he was treasurer of Kedassia Kashrus and is still Trustee of its holding charity UOHC Foundation. He served on Kedassia, Burial Society and Executive Committee of UOHC. He is also a governor of Yesodei Hatorah Girls School. He founded Aguda Book and Tape libraries and sefarim gabbai at Tottenham Adath. He retired to Ramat Beit Shemesh in 2009 and was foundational member of Mercaz Daf Yomi. To find out more, you can sign up at mercazdafyomi.com and receive a free gemoroh.