The Shipwreck and Rabbeinu Gershom

Facts of the Case

A group of Jewish merchant were traveling down a river in Germany in a barge. The barge sank, but everyone onboard was saved. However, the barge was lost with all the precious cargo onboard. One of the Jewish merchants hires a diver to help save some of the cargo. The diver was able to pull out a chest of goods, but he has to break it because of its heavy weight. The merchant and the diver attempt to save as much of the lost cargo as possible. However, because of the low visibility and the dangers of saving, the merchant and the diver put off their search until the next day. Over the night, a group of gentiles broke into the ruin and stole a large group of cargo. In the morning, the Jewish merchants attempt to recover the lost cargo by bribing local judges and nobility to make a court order demanding the return of all stolen cargo. The Jewish merchants also succeed in convincing the nearby Jewish communities to make a decree demanding the return of the stolen items.

Within a month of the sinking, a member of the Jewish community is discovered to have bought a stolen gem from one of the shipwreck thieves. The purchaser of the stolen gem refuses to return it to its owner, claiming that the gem is made owner-less by the shipwreck, and the decrees are ineffective.

Historical Background

Rabbeinu Gershom describes how the merchants bribed local court officials to look for the items stolen from the shipwreck. In particular- Rabbeinu Gershom describes the merchants as having "paid bribes to the rulers (moshlim) and judges (shoftim), to investigate who the people suspected of having gathered there (the site of the shipwreck)." What kind of officials were these merchants dealing with?

Our first source is a different tshuva of Rabbeinu Gershom, where he contrasts the courts of Talmudic Babylon to the courts of his own time. "The courts in Babylon judge righteously and take from thieves and return to the owners, but in other lands they take bribes and pervert judgement." Rabbeinu Gershom's statement from the get go implies a lack of confidence in the ability of local courts to get justice and their vulnerability to bribery. Indeed- in our very case, the judges only investigate the merchants' claim because of the bribes the merchants give them.

Rabbeinu Gershom's Decision

Rabbeinu Gershom ruled that the buyer of the stolen gem had to return it to its owner. His argument is somewhat difficult to follow and much debated by future generations.

The buyer argued that according to the straight letter of halacha the gem had become ownerless in the shipwreck. The gemara indeed says that which is lost in the river becomes permitted. Further, if the owner despaires of the loss of his item (yeush), the finder need not return the item. It is unclear how Rabbeinu Gershom responds to either of these arguments, and if decision is based on a rejection of these arguments, or rather, is based on the overriding decrees of the communities.

Rabbeinu Gershom ruled that both the decree of the nobility and the decree of the Jewish communities were effective.

Rabbeinu Gershom stated clearly that Dina demalchuta Dina was applicable to this case.

Rabbeinu Gershom also ruled that the communal decree had power because of the principle of hefker beit din hefker. Rabbeinu Gershom understands this principle to be applicable not only to Batei Dinim, but to the Jewish communal heads..

Rabbeinu Gershom's View on Authority of Court

Rabbeinu Gershom says that the communal decree has authority because hefker beit din hefker. Rabbeinu Gershom goes on to reject the assumption that the power to repossess is limited only to batei dinim of special authority. He quotes that the Talmudic statement "Yiftach in his generation, like Shmuel in his generation," which gives authority to the rulings of generational leaders, even if those leaders are lacking the intellectual prowess of their predecessors. Rabbeinu Gershom understands this statement to give full powers to every communal leader, even if they themselves are not the leaders of the generation. This point is an immense view on the power of the community.

In order to have a clearer sense of the power Rabbeinu Gershom granted the community, let us contrast his view to that of Rabbeinu Tam. The Mordechai quotes Rabbeinu Tam saying that a community can only fine and enact legislation if the entire community had agreed to legislation. Rabbeinu Tam goes on to say "if they made no such agreement, the city has no power to force a resident to do what they what." Rabbeinu Tam then goes on to say that the rule of hefker beit din hefker is not applicable, since only courts of great rabbis have that ability. Rabbeinu Tam understands that Talmudic statement "Yiftach in his generation, like Shmuel in his generation" to grant ultimate authority to the greatest rabbis of each generation.

In contrast to Rabbeinu Tam, Rabbeinu Gershom understood the "Yiftach" statement to grant the same expropriation power to the leaders of every single community. We can perhaps suggest a reason for the dispute- Rabbeinu Tam sees the entire Jewish community as one, and bound to a single leader- the gadol hador (great man of the generation). In contrastion, Rabbeinu Gershom sees each community as individually requiring leadership. To Rabbeinu Tam- local government is only created by collective agreement. In contrast, to Rabbeinu Gershom, there is a preexisting institution of local government that is empowered not by consent, but has authority in itself. Rabbeinu Tam agrees that the Jewish world has a default leadership, but only on the national level- the gadol hador.

A further distinction worthy of note is the lay nature of leadership to Rabbeinu Gershom. Rabbeinu Gershom grants the governing board of a community the power of a court- but he does not describe particular requirement such as that expected of a judge. In contrast, Rabbeinu Tam grants ultimate power to the court of the greatest scholars of the generation. Rabbeinu Tam does envision laymen having power over communal affairs, but only by the unanimous consent of the community. To Rabbeinu Tam- local government must be created ex nihilo it cannot exist on majority rule alone.

Rabbeinu Gershom's View on Authority of the State

Rabbeinu Gershom's ruling is unique in the power it grants the state. Rabbeinu Gershom asserts that stolen gem must be returned because of the local noble court's ruling. This ruling grants exceptional power to the local secular government, and is much disputed by later commentators.

To begin, we must examine the gemara's statements about the power of the state, and the understanding of subsequent commentators. The gemara quotes the principle Dina demalchuta Dina (the rule of the kingdom is the law) in four places.

1. To mandate paying of taxes
2. to permit using public works built using wood and land taken from citizens
3. To prohibit taking land which is not considered sold by Jewish law, but is considered sold under state law
4. in a dispute whether Dina demalchuta Dina would suffice to grant legal weight to contracts drawn up in a state court.

This principle is interpreted in a limited way by many commentators. Some assert that the government only has authority with regulations relating to land use, because of the state's ultimate right as owner over the land. Other argue that the principle should be seen widely as giving the king power of legislation but only in specific circumstance. They argue that ruler only has power to enforce prexisting regulations which are derived from their predecessors and written in the books of law. This opinion gives no weight to enacting legislation, only enforcement of the existing rules.

Others assert that the principle only grants authority to royal proclamations that relate to the welfare of the monarchy as a whole. This opinion argues that Dina demalchuta Dina is not applicable to the adjucation of courts. Instead Dina demalchuta Dina is only effective with regards to policy enactments of the monarch.

Even according to the opinions which grant weight to Dina demalchut Dina in all the above mentioned cases- many commenators express the opinion that Dina demalchuta Dina does not apply in cases of civil dispute between two Jews. These commentators assert the ultimate power of the Torah as the sole code of the Jewish people and consider usage of secular law in interpersonal disputes to be a disgrace. Going further- some opinions permit Dina demalchuta Dina in cases of civil dispute, but only where the ruling does not go against the Torah.

I have seen it necessary to describe the vast multitude of opinions in order that we may understand the impact of Rabbeinu Gershom's ruling. Rabbeinu Gershom mandates the return of the gem on the weight of the authority of the local courts, enforcing a particular declaration. The rulings of these local courts seems to contravene halacha. Indeed, as the claimant declares, an object lost at sea becomes owner less according to the straight letter of halacha. There is no requirement for the item to be return, and the recover of the lost item is full owner. In this case, Rabbeinu Gershom is imposing a ruling that goes against the straight letter of halacha. Some propose an answer limiting Rabbeinu Gershom's ruling, based on a different interpretation of the tshuva. However- according to the default reading, how is Rabbeinu Gershom to be understood.

The task of resolving Rabbeinu Gershom is taken up by the Siftei Cohen (the Shach) in his commentary on the Shulchan Aruch. The Rama quotes the ruling of Rabbeinu Gershom, but he also quotes elsewhere the ruling of the Rashba "that the local of the state is not to be followed where it contradicts the Torah."

The Shach proposes that Rabbeinu Gershom is not in fact basing his ruling on the decrees of the state courts. Rather, the Shach says that Rabbeinu Gershom believed that the buyer of the stolen gem was obligated to return it because of the ruling of the Jewish community. The Shach explains that that Rabbeinu Gershom mentioned the ruling of the secular courts, because that was the basis for the ruling of the Jewish community. The Shach views the practice of mandating the return of the stolen gem as unsavory, since strict halacha would not mandate it. Yet the Shach believes that the Jewish community has the effective authority to enact such a ruling even though "it is a faulty practices." To the Shach- the civil courts are of ancilarly importations in Rabbeinu Gershom's ruling.

The Avnei Miluim composed a fascinating response to the Shach. The Avnei Miluim notes that the gemara describes the concepts of "lifninim meshurat hadin (going beyond the strict halacha). According to this concept, it is a mitzvah to return a item even if technically speaking the finder has a right to keep the item. On this basis, the Avnei Miluim argues that civil courts had the authority to mandate the return of the gem since there was a halahic value behind their requirement. Even thought halacha does not mandate the return of an item lost at sea, it still seas its return as a mitzvah. Because of this, the Avnei Miluim argues that the civil courts were empowered to demand the return of the stolen gem- because the return of the stolen gem is not prohibited, but merely not mandated by straight halacha. In sum, the Avnei Miluim says that since halacha considers return a value but does not mandate it, the civil courts can demand the return. The ruling of the civil courts does not contravene halacha- it is just that halacha does not require enforcement of return in this case.

The Avnei Miluim resolution is full fleshed out in the comments of the Even Haezel. The Ezel HaEzel begins by suggesting the source of Dina demalchuta Dina is the Noachide law requiring establishments of courts. The Noachide requirement does not only mandate the establishment of courts, but also requires that all inhabitents of a country follow the courts. However, the Noachide courts only have authority insofar as the follow their mandate of enacting just laws. The Noachide requirement of courts is not only for gentiles- but also binds Jews to the rulings of gentile courts where these rulings are just. In the case of Rabbeinu Gershom's ruling, the decrees of the non-Jewish courts were just- as the Avnei Miluim notes, halacha sees the return of the shipwrecked item as a mitzvah even if not mandating its return. On this basis, that Even HaEzel suggests that the court's ruling is just, since it accords with what halacha considers to be a value. Thus, to follow the ruling of the courts is thereby a fulfillment of Noachide law.

To say in greater detail- the Avnei Miluim's resolution could have been read in two ways. It could have been understood to say that Dina demalchuta Dina is applicable only where the state's ruling does not violate halacha. Since there is a mitzvah to return the shipwrecked item- the state's ruling does not violate halacha.

Rather than take this approach, the Even Haezel proposes that that the state's ruling not only does not contravene halacha, but is a fulfillment of the Noachide mitzvah of law and order. The ruling of the court is not only not anti-Torah, but rather a fulfillment of the highest principles.

Rabbeinu Gershom's Views on Zuto shel Yam

Typically in halacha, an item becomes ownerless after the owner despairs of ownership (Yeush). In order to have the conditions of Yeush- the owner must know about the loss of the item and express a lack of hope in the return of the item. The gemara clarifies that when an item is either washed up at sea or by a river, then the item becomes owner-less irrespective of whether the owner despairs. This is referred to as the principle of Zuto shel yam.