The Holocaust and Halakhah,
by Irving J. Rosenbaum
Reviewed by Jan Peczkis
This work is centered on the Kovno ghetto in German-occupied Lithuania. The persecuted Jews had especially sought the advice of the highly regarded and scholarly Rabbi Ephraim Oshry (1914-2003). (Rabbi Oshry ended up being one of the few leading eastern-European rabbis that survived the German-made Holocaust).
TO WHOM DOES LOST, STOLEN, OR TRANSFERRED PROPERTY BELONG?
My review centers on the topic of greatest and enduring relevance–that of wartime-caused disputes on rightful ownership. So-called property restitution has been in the news lately, especially with the recent passage of the so-called Justice for Uncompensated Survivors Today (JUST) Act S.447 by the U. S. House of Representatives, on a farcical voice-vote, followed by signature into law by President Trump.
Of course, the tactics of the Holocaust Industry (aka restitution mafia) do not rest upon Jewish law, or, for that matter, largely upon any modern secular law. They are primarily extralegal in character–mostly dependent upon moral and political blackmail. Nevertheless, it is interesting to see how Jewish law had long treated these matters–almost always favoring the new possessor of the property over the absent or even now-present complaining original owner. It also goes on to show the hypocrisy of making onerous demands on Polish property-finders that Jewish courts would never have made of Jewish property-finders, even during and immediately after WWII when the Shoah-related wounds had still been fresh.
THE PROPERTY OF THE KNOWN OR SUSPECTED DEAD BECOMES THE PROPERTY OF THE LIVING—UNEXPECTED HOLOCAUST SURVIVORS NOTWITHSTANDING
Following an AKTION in the Kovno ghetto, Rabbi Oshry was asked, by a certain Jew, if it was all right to take the personal possessions of a murdered Jewish family. Rabbi Oshry ruled in the affirmative.
Rosenbaum comments, “In his TESHUVAH, Rabbi Oshry cites the Talmud (BABA KAMMA 114a), the Rambam (HILKHOT GEZEILAH 6:6), and the SHULHAN ARUKH (HOSHEN MISHPAT 259:7), which agree that he who snatches his neighbor’s property from predatory beasts, or draws it from the bottom of the sea, or seizes it when it is being swept away by a flooding river, or rescues it from pillaging idolaters, acquires title to the property. The reason for this, as explained by Rashi, is that the owners, in the face of its apparently certain loss under such circumstances, abandoned all hope of ever recovering it. According to the Halakhah, this YEI’USH (abandonment), together with the change in actual physical possession of the property (SHINU’I RESHUT), is sufficient to transfer ownership. Hence in our case, even if there were claimants to the property from the family of those slain by the Nazis, undoubtedly they would have abandoned any hope of ever receiving it. For it was known to everyone that after the Nazis had mercilessly slain and slaughtered the Jews, they would plunder any object of value that had belonged to their victims. Whatever was left of insignificant wealth, such as the objects about which the inquiry was being made, were left HEFKER–free for everyone to take. Thus there need be no qualms about taking them…Therefore, in the instant case, Rabbi Oshry ruled that it was certainly permissible to take the objects left behind by the martyred family. Even in the unlikely event that relatives of the deceased would appear at some future time to lay claim to the property, THERE WOULD BE NO LEGAL OBLIGATION TO RETURN IT TO THEM.” (pp 124-125; Emphasis added).
THE GERMAN IS A CONQUEROR, SO NAZI-SEIZED PROPERTY BECOMES THE PROPERTY OF THE FINDER, NOT THE ORIGINAL OWNER
A member of the Jewish ghetto police had buried a chest full of valuable books, away from the prying eyes of the Germans. Author Rosenbaum describes what happened at the end of the German occupation, “One of those who was digging in the ruins of the ghetto found the chest of books which had been hidden there. He recognized their value immediately and exulted in his find, because he believed they were now his property in accordance with Jewish law in the case of anyone who finds ownerless and abandoned articles.” (p. 128).
News of the find spread and–wouldn’t you know it–the following happened, “Suddenly, one of the men recognized his own property. Among the volumes were several which had belonged to him–inscribed with his name, and the names of his father and grandfather. Since the volumes were valuable, they had been handed down as a family inheritance. He began to demand of the finder that they be returned to him. The finder maintained that he had a legitimate claim to the books, as one who found an ownerless and abandoned article, or one who rescues an article from the bottom of the sea. The two claimants asked Rabbi Oshry to render a decision in accordance with the Torah.” (pp. 128-129).
Even though the disputed property had never actually fallen into the hands of the Nazis, and the original owner was very much alive and very unambiguously the original owner of some of the books, Rabbi Oshry ruled in favor of the finder. In doing so, Oshry once again cited the Talmud (BABA KAMMA 114a); Rashi, and the Rambam. In fact, the Rambam had said, “‘He who saves valuables from a lion, or a bear, or from the bottom of the sea, or from idolaters, they belong to him, EVEN THOUGH THE ORIGINAL OWNER STANDS AND PROTESTS.’” (p. 129; Emphasis added).
Author Rosenbaum elaborates on Oshry’s reasoning behind his finder-favorable ruling, “Certainly, says Rabbi Oshry, the original owners of these books abandoned all hope of recovery once the Nazis had taken them. Not only their possessions but also their very lives were in the hands of the Germans to do with as they wished. Thus there is no question that there was YEI’USH. Moreover, the RASHBA holds that in the case of a conquering army, there is not even a need for YEI’USH, since the conqueror acquires title to the booty under the laws of war. Anyone who subsequently acquires it from him also has a clear title according to the RASHBA. The Germans were a conquering army.” (p. 129).
Some technicalities came into play yet, as pointed out by Rosenbaum, “Rabbi Oshry nevertheless concludes that in view of the original owner’s undoubted abandonment of all hope for recovery, and by virtue of the factor of the finder’s possession, the books are now, according to the Halakhah, the property of the finder.” (p. 130).
IMPLICATIONS FOR THE ATTEMPTED HOLOCAUST-INDUSTRY SHAKEDOWN OF POLAND
Neo-Stalinist Jan T. Gross, backed by a rather adulatory media, has portrayed the Poles (see his GOLDEN HARVESTS) a primitive, greedy, anti-Semitic (what else?) people–for their buying of post-Jewish properties at German auctions during the German occupation, or otherwise assuming ownership of post-Jewish properties of any kind after WWII.
Rabbi Oshry’s decisions, described by Rosenbaum above, soundly debunk these media Polonophobic escapades. It is in no sense immoral for the property of the dead to become the property of the living, and for the finder to acquire title to the property abandoned (by choice or circumstance) by the original owner.
In no sense had Poles “stolen” Jewish property, and in no sense are Poles guilty of “unjust enrichment”. The property of the Jews had become booty not only of the German conquerors of Poland, but also of the ensuing Soviet conquerors (“liberators” of Poland–both directly and as the booty of the Soviet-imposed Communist puppet government ruling Poland on behalf of the USSR.) So the post-Jewish property now unambiguously belongs to the finders (the Poles), not the onetime owners (Jews), and certainly not to the self-appointed Jewish organizations that, so many decades after the events, have suddenly and conveniently “discovered” title to these properties for the purpose of their own selfish profiteering.
The enormity and presumed exceptionality of the Holocaust, nowadays often cited as a license for special rights for Jews, could have been turned around. That is, the reputed annihilation of the local Jewry could have made it easier for Poles to lay claim to post-Jewish property–based on the reasonableness of the presumption that the pre-WWII Jewish property owners are dead. In other words, the totality of the annihilation of Jewry could have created a very strong YEI’USH (abandonment with no prospect of recovery) that, in principle, could have validly allowed Poles to remain the new owners of post-Jewish property even in the few cases where the original Jewish owners had survived the Holocaust. [Of course, in the vast majority of cases, Poles returned properties to Holocaust-surviving Jews. The media focused on the rare exceptions in which there were sometimes-lethal conflicts.]
Apart from all this, there are several additional layers of YEI’USH (abandonment with no hope of recovery), in existence, that make the pretensions of the Holocaust Industry all the more incredible. One is the staleness of the newly-imagined claims–based as they are on long-settled property transfers that had taken place now 75 years ago. Another layer of YEI’USH is the fact that the once-Jewish properties have by now experienced a succession of non-Jewish owners for the last 75 years. Another layer of YEI’USH is the fact that all then-outstanding issues of nationalized properties had been settled by the treaty, between Poland and the USA, in 1960. Another layer of YEI’USH is the rather obvious fact that the vast majority of Poland’s Jews had not survived to re-assume possession of most of the communal properties (synagogues, cemeteries, etc.). Another layer of YEI’USH is the fact that most of Poland’s Holocaust-surviving Jews had sold or given up their properties. Still another layer of YEI’USH is the fact that Jewish individuals and organizations had not paid for the upkeep of either the individual or communal properties in the seven decades since WWII. And so on…