Money Found in a Vending Machine
Question
Hi,
I found money in a can machine where it normally returns the change. May I keep it, or do I have to return it? If I do need to return it, to whom? the owner of the machine, or do I have to hang notices and try to find the person who forgot his change?
Answer
Thank you for your question.
The answer:
You may take the money for yourself.
(However, If the machine is broken, then one has to return the money to the owner of the machine. This is only if one knows that it is broken, one doesn't need to suspect that it is a broken machine).
The explanation:
Since we can say that the person who forgot the money gave up on it and is mityaesh, you may keep it.
However, regarding the owner of the can machine, we could ask, why does the money not belong to him? Since it was left in his machine, it should be considered that he acquired it through kinyan chatzer.
HaGaon Rav Amrom Fried shlit”a writes that there are two reasons lehalachah why we say that the money does not belong to the owner of the machine.
1. It is not a chatzer ha-mishtameres.
As we know, a person can acquire items through kinyan chatzer, meaning, something found in his courtyard is acquired by the owner, but this is specifically when the chatzer is mishtameres, a secure place. If it is an open place, then it does not have the status of a chatzer that can acquire on behalf of the owner.
Therefore, since the money was left in the machine and anyone could have taken it, it is not a chatzer ha-mishtameres.
Even though the Nesivos HaMishpat (siman 240, se’if katan 3) writes that an unsecured courtyard refers only to an exposed area without partitions, and if it has walls it is considered secured, nevertheless, in our case it would still be considered an unsecured courtyard. This is because many people make use of the area, similar to a store, which is considered unsecured since the public is commonly present there (as explained in Bava Metzia 26, in Tosafos there, and in Shulchan Aruch Choshen Mishpat siman 260 se’if 5, and in the Shach s.k. 18).
2. It is a case of “issura ba’ah l’yado.”
Since the money was left in the machine before the owner of the money was mityaesh, it is considered issura ba’ah l’yadei, meaning, it originally entered this “courtyard” in a forbidden manner. Therefore, even if afterwards the owner was mityaesh, the owner of the machine still cannot acquire it through kinyan chatzer, because the money originally came into the courtyard b’issur.
Even though this is a case of yi’ush shelo midaas, it is still considered issura ba’ah l’yadei. This is based on the Rishonim (Rosh, Perek 2, siman 9; Nimukei Yosef to Bava Metzia 12b – on the Rif; and see Rambam and Raavad, Hilchos Gezeilah va’Aveidah chapter 16, halacha 4; Shach siman 268 se’if katan 2; siman 262 se’if katan 1; and in Nesivos HaMishpat Ibid, se’if katan 1).
This is the quote from the Rosh:
רא"ש מסכת בבא מציעא פרק ב
וכי תימא תקנה ליה חצירו אחר שנתייאשו ישראל. לא עדיפא חצירו מידו. דאילו בא לידו קודם יאוש תו לא קני הואיל ובאיסורא אתא לידיה הלכך חצירו נמי בכי האי גוונא לא קניא ליה.
And if you might say, let his courtyard acquire it for him after the owners have despaired, the courtyard is no better than his own hand. For if it had come into his hand before the owners despair, he would not acquire it, since it came into his possession through a prohibited manner. Therefore, his courtyard also, in such a case, does not acquire it for him.
And this is brought le’halacha as follows;
שולחן ערוך חושן משפט הלכות אבידה ומציאה סימן רסב סעיף ג
שהרי נתייאש מיד כשידע שנפל, כיון שאין בו סימן ובא לידו בהיתר, כיון שנתייאשו בעליו. ואם לאו, צריך להחזיר אף על פי שנתייאש אחר כך, כיון שבא לידו קודם יאוש.
Shulchan Aruch, Choshen Mishpat, Hilchos Aveidah u’Metziah, siman 262, se’if 3
“For the owner already despaired immediately upon realizing that the item had fallen, since it has no identifying sign, and it therefore came into his (the finder’s) possession permissibly, because the owners had despaired. But if not, then he must return it even if the owner later despaired, since it came into his possession before the despair.”
Adds the shach:
ש"ך חושן משפט סימן רסב ס"ק א
כיון שבא לידו כו'. וחצרו כידו בזה דקניא ליה אם בא שם קודם יאוש
Shach, Choshen Mishpat, siman 262, se’if katan 1:
Since it has come into his possession… his courtyard is like his own hand in this regard, meaning it acquires the item for him if it arrived there before the owner despaired of recovering it.
It is important to note as mentioned earlier, that If the machine is broken, then one has to return the money to the owner of the machine. This is only if one knows that it is broken, one doesn't need to suspect that it is a broken machine
Wishing you all the best.
Source
Azamroh Lishmecho #278
Nesivos HaMishpat, siman 240 s.k. 3
Bava Metzia 26
Shulchan Aruch Choshen Mishpat, siman 260 se’if 5
Shach 260 s.k. 18
Rosh Bava Metzia, perek 2 siman 9
Nimukei Yosef to Bava Metzia 12b (on Rif)
Rambam, Hilchos Gezeilah va’Aveidah 16:4
Raavad ad loc.
Shulchan Aruch Choshen Mishpat, siman 262 se’if 3
Shach 262 s.k. 1
