OWNERSHIP

OWNERSHIP (Heb. בַּעֲלות, ba'alut). As a proprietary right, ownership is the most important of all rights in property, all other rights being inferior to it. The distinction between ownership and other proprietary rights is apparent not only in matters of civil law but is especially significant in other halakhic matters. Thus, the etrog ("citron") and other three species prescribed for the festival of Sukkot must be one's own property and not borrowed or stolen (Sh. Ar., oh 649:1–2). This principle of ownership applies also to the first fruits of one's own field which have to be brought to the Temple and over which the scriptural recital (Deut. 26:1–11) is to be made (Bik. 1:1–2; Git. 47b).

The Talmud indicates that a person is the owner of property if it is in his possession for an unlimited period, or if possession thereof is due to revert to him for an unlimited period after he has temporarily parted with the property in question. At first glance, the distinctive feature of ownership appears to be the fact that a person is free to deal as he pleases with the property he owns, a power not available to the holder of any other proprietary right. It will be seen, however, that this feature is not in itself sufficient to define ownership, since it does not always apply. For instance, an owner must not use his land in a manner that interferes with a neighbor's use of his land (see *Nuisance) nor may he use his property in such manner as to commit an offense. Furthermore, a person who has agreed to encumber or submit to any restraint whatsoever on the use of his land nevertheless remains the owner. A person who lets his property, for instance, even for a long-term period continues to be the owner. It is therefore apparent that the rights of ownership may adhere even to those who are not free to deal as they please with their property. Nor does the suggestion that ownership is characterized by a person's right to sell or alienate his property prove to be sufficiently distinctive. Thus the usufructuary may also transfer his right to another (Maim. Yad, Mekhirah, 23:8) and the borrower or lessee may also do so – with the owner's permission – yet these parties do not become owners of the property to which their rights extend. On the other hand, at the time when the laws of the jubilee year were operative, the owner could not sell his land forever, yet he was its owner. Moreover, sometimes a right in property other than ownership exceeds the owner's rights therein, such as the case of a tenant who holds a 100-year lease.

Possession (Reshut).

The distinctive quality of ownership is closely connected with the concept of reshut ("possession"); so much so that the commentators do not always discriminate between the two and sometimes use the term reshut to denote ownership. Reshut (see also *acquisition) is a person's control over property, established by the existence of three requirements: (1) his ability and (2) intention to use the property (3) at any time he may wish to do so – even if only for a period of limited duration. All three requirements must be satisfied and operate simultaneously for the possession to be effective; hence coins which are in a place that cannot be reached are not in a person's reshut, even if they are his own (Tosef. Ma'as. Sh. 1:6). If such place is accessible to him, however, because "the way is open" and caravans pass there, the coins are said to be in his reshut, but not otherwise (tj, Ma'as. Sh. 1:2, 52d). Similarly, chattels which have been stolen are in the reshut of the thief, since the latter is able to use the property at his pleasure and the owner is unable to prevent him from doing so or to use the property himself. Land cannot be stolen and is therefore always in possession of its owner, and since it cannot be carried away or hidden the owner can always have it restored to his use through the mediation of the court. He therefore remains free to use the land whenever he pleases, unlike a purported robber. Similarly, an object which is deposited remains in the reshut of its owner, not that of the bailee, from whom the owner can demand its return at any time. If, however, the bailee should refuse to return the property and denies the existence of a bailment, he will be deemed a robber and the property will thus be in his reshut (bm 7a and Alfasi ad loc.). Property on hire or loan for a fixed period, which the owner may not revoke, is in the reshut of the hirer or borrower for the duration of the stated period. In the same way, when a person sells the usufruct of his field, the field will be in the reshut of the usufructuary (bb 8:7), since the latter, not the owner, may use the field at his pleasure (Maim. Yad, Mekhirah, 23:7).

For the same reason, an object which is found on premises which are kept or reserved for the owner is in the latter's possession. This is so even if the premises are kept for him because people keep away from there of their own accord and not because of his own ability and power to guard his field (bm 102a); if however he is unable to use a thing which is on his premises, for instance when it is hidden and nobody expects to find it there, it will not be in his reshut. Property which is on a person's premises when they are not kept for him will not be in his reshut, as it is deemed certain to be lost or taken by others and is therefore not freely at his disposal (see *Acquisition, Modes of).

Ownership and Possession

These are by no means identical concepts. The amora, R. Johanan, states that stolen property is in the reshut of the thief, but the person robbed remains the owner (bm 7a). The same may be said with regard to hired property. Reshut nevertheless appears to be an essential element in the determination of ownership, for, as indicated, a person is held to be the owner if the property is permanently in his possession for an unlimited period – even if it passes out of his reshut for a limited period but is due to revert to him permanently (cf. Ran, Ned. 29a). Thus the law that a swarm of bees and doves of a dovecote may be owned has rabbinic authority only – for the sake of keeping the peace (bk 114b; Ḥul. 141b) – as in strict law these cannot be owned because they cannot be permanently kept in a person's reshut. Similarly, geese and fowl which have escaped are ownerless because they cannot be restored to the owner's reshut (Tos. to Ḥul. 139a). This is also the case in respect of *lost property which the owner has despaired of finding and having restored to his reshut (see *Ye'ush).

Permanent reshut is not the only requirement of ownership, however. Ownership may cease when a person makes up his mind that the property is to pass permanently out of his reshut, or that it shall not return permanently into his reshut, as by way of ye'ush, or when he renounces the property (see *Hefker), or when he conveys it to another. Consequently a deafmute, idiot, or minor, none of whom has legal understanding, cannot lose ownership in any of these ways (bm 22b; Git. 59a). Hence it may be said that the right of ownership is characterized by two basic attributes: a positive one, that the property is in the reshut of the claimant for a period of unlimited duration; and a negative one, that such person shall not have resolved to remove the property permanently from his reshut.

Ownership of Limited Duration

Despite the general principles outlined above, it is possible for ownership to be limited in point of time. The outstanding example of this is a returnable gift, which, in the opinion of Rava, is a proper gift making the donee the owner as long as the gift is with him (Suk. 41b). The comment of the rishonim (Asheri ibid. 30; Ritba, Nov. Git. 83a; Kid. 6b) is that such a gift is a complete and full conveyance, and the return of the gift requires a fresh conveyance. Since it is a condition of the gift that it must be returned to the original donor, such a gift in fact only confers title for a limited period (cf. Keẓot ha-Ḥoshen, Ḥm 241:4). Another example of ownership of limited duration is that cited by R. Isaac of the creditor acquiring a pledge for a debt (bm 82a). In this case it may also be said that this is a complete and full acquisition and the return of the pledge to the debtor requires an assignment thereof by the creditor. The Talmud discusses the question of such an assignment being involved even in the case of hire (Av. Zar. 15a).

The most important example of ownership for a limited period is to be found in the sale of land at the time that the jubilee year was customary, for in the jubilee year land reverted to the vendor. This is also the case when land is sold for any period of limited duration. In this case the acquisition is called kinyan perot (i.e., usufruct) in the Babylonian Talmud (Git. 47b) and kinyan nekhasim in the Jerusalem Talmud (Git. 4:9, 46b). It is stated in the latter that the purchaser may not dig any wells while the field is in his possession (Mishneh la-Melekh, to Maim. Shemittah, 11:1). According to the Babylonian Talmud (ibid), kinyan perot – before the occurrence of the first jubilee – was like an acquisition of the land itself, since people had not yet been accustomed to the restoration of the land and looked upon a sale as leading to a permanent and irrevocable acquisition. However, in the opinion of Simeon b. Lakish, from the second jubilee onward kinyan perot was not like the acquisition of the land itself and the seller remained the owner because at the end of the stipulated period the land would revert permanently to his possession. R. Johanan is of the opinion that kinyan perot is like a kinyan of the land itself and that the Pentateuch provided for the termination of such ownership in the jubilee year and the restoration thereof to the owner of the land. The dispute also extends to land which is sold for a fixed period. The halakhah was decided in accordance with the view of Simeon b. Lakish.

Because of the element of possession in the concept of ownership, it is possible for a person to own only part of a thing, provided that it is possible for such part to be in his separate possession. Thus, it can sometimes happen that one person may own land and another may own the trees on it (bb 37a–b), or one person may own a house and another the top story (bm 117b).

In the State of Israel, the Cooperative Houses Law 5713 – 1952, in keeping with Jewish Law and contrary to the law in force until then, makes provision for the separate ownership of each apartment in a cooperative house.

bibliography:

Gulak, Yesodei, 1 (1922), 131–4; Herzog, Instit, 1 (1936), 69–75; S. Albeck, in: Sefer Bar-Ilan, 7–8 (1970), 85–94. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 3:1364f., 1383f.; idem, Jewish Law (1994), 4:1627, 1647.

[Shalom Albeck]