Money found on Har HaBayit

Shekalim (7:2) | Yisrael Bankier | 8 years ago

The seventh perek of masechet Shekalim opens by discussing the status of coins found in various locations in Yerushalaim. The issue is that the coins might be hekdesh or set aside for use for korbanot. Based on various halachic principles (rov, karov, etc) the Mishnah rules how these coins must be treated depending on where the coins were found.

One such case is if money was found on Har HaBayit. The Mishnah (7:2) rules that are assumed to be chullin (unsanctified, regular money). Bartenura explains that this is because a majority of money carried by people there is indeed chullin.Even though during the festivals, most people would be carrying maaser sheni money, since the floor was not swept regularly, the assessment of rov at any time during the year is based on the type of money brought over the entire year.

The Tosfot R’ Akiva Eiger on the Mishnah raises an interesting issue. There is a principle that one’s chatzer (lit. courtyard) acquires ownerless property from the owner of that courtyard. The question therefore is, why does this lost money not automatically belong to hekdesh? It should be the property of the Beit HaMikdash. R’ Akiva Eiger answers that the chatzer of hekdesh does not acquire like a personal chatzer. R’ Akiva Eiger then directs us to the Ketzot Hachoshen for more detail. What follows is a brief snapshot of part of the discussion found there.

The source of this difference is found in Mishnah in Meilah (3:6). If one sanctifies a pit full of water, they would violate the prohibition of meilah by using either the pit or the water. If however one sanctified an empty pit and only later it filled with water, the prohibition of meilah would only apply to the use of the pit and not the water. The Tosfot(Bava Batra 79a) explains that the prohibition of meilah does not apply to the water in the second case because a hekdesh pit does not acquire the contents for hekdesh. A chatzer has the ability to acquire because it is viewed like the hand of the owner of the chatzer. (See Bava Metzia 10b, where the inclusion of a chatzer is derived from pesukim.) Just as one’s hand can acquire so can one’s chatzer. Unlike a person, hekdesh does not have a hand, yad. Consequently a chatzer belonging to hekdesh cannot acquire.

The Tosfot Yom Tov on that Mishnah has a difficulty with Tosfot.The Gemara (Bava Metzia 12a) addresses the question of the adequacy of casting a gift into the one’s courtyard without their knowledge. Rav Ashi answers that the chatzer’s ability comes from a yad and should be no worse than shlichut (acquisition by way of a messenger). Just as a third-party can acquire on behalf of another without their knowledge only if it is in their benefit, the same is the law by a chatzer. The Tosfot Yom Tov asks, if that is the case, even though Har Habayit cannot acquire in the capacity of a yad, it should be able to acquire in the capacity of shelichut.

The Ketzot answer as follows. The Shita Mekubetzet(Bava Metzia 12b) explains that if a chatzer is enclosed or protected, it can acquire by means of shelichut. If it is not however, then since it is not similar to a yad and it cannot act as a shaliach. It is for this reason that a chatzer mehalechat(mobile courtyard) cannot acquire at all. Since it is not similar to a yad (which is stationary relative to the person) it cannot acquire by means of shelichut.

Consequently the Ketzot explains that a chatzer can only operate by means of shelichut when it is similar to a yad.Since hekdesh does not have a yad and Har HaBayit cannot operate by means of a yad, it cannot acquire the lost money by means of shelichut. Consequently money found on Har HaBayit is indeed chullin and may be taken by the one who finds it.

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