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.

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..