There is a concept found in tractate Baba Kama, which I have been learning this year in Yeshiva, of “גזל ולא נתייאשו הבעלים שניהם אינו יכול להקדיש. זה לפי שאינו שלו וזה לפי שאינו ברשותו.“ This statement becomes a refrain in the tractate and is attributed to the Tanna Rebbi Yochanan.
In order to understand this principle, imagine the following scenario: I steal $100 from you. For whatever reason, either you or me decides to donate this money to the local synagogue. Rebbi Yochanan tells us that this is not allowed. Why? I can’t donate the money because, quite simply, it is not my money. Makes sense.
But why can’t you pledge that money to charity – it’s your money!? Because, explains Rebbi Yochanan, it is not in your physical possession. According to one opinion the reason for this is simple – if it is not in your possession, how could you pledge the money? Maybe you’ll never be able to retrieve the money! But according to one interpretation (the Baal HaMaor, Zerahiah ha-Levi of Gerona), this law applies even if you know for a fact that you can retrieve the money. Potential for possession is not sufficient; you need actual possession of the money to be able to donate it, even if that money belongs to you.
The Talmud actually applies this principle of possession very broadly. if Reuven steals from Shimon, and Levi steals the same money from Reuven, Levi does not pay the usual fine (2x the principle) because it was not stolen from the owner’s (Shimon) possession. Additionally, I cannot legally transfer power of attorney over my assets to somebody else if those assets are not currently in my physical possession. The Rabbis cared a lot about physical possession. For them possession is equal to titular ownership.
Interestingly, this discussion relates to a separate conversation that regarding the upcoming holiday of Pesach. It says in the Torah to destroy all Chametz (leaven) in your houses (Exodus 12:15) on the first day, which is interpreted to mean Erev Pesach (the day before Pesach). The great Rabbinic commentators wonder: Is this just a practical idea – you are not allowed to have Chametz on Pesach, so therefore you have to destroy it – or is there a special idea to get rid of Chametz? If I clean my house well before Pesach and don’t have any Chametz left am I required to go out of my way to obtain a slice of bread so that I can fulfill my mandate to destroy the Chametz (as many people have the custom to do)? It’s one thing to say don’t have any Chametz. It’s another thing entirely to require people to actively go out of there way to destroy Chametz.
I can’t help but think of Rebbi Yochanan in this instance. According to him any given object has two equally important aspects – titular ownership and possession. Apparently the same may be true of Chametz. The Torah teaches us that we may neither own nor possess Chametz on Pesach. But then the Torah goes one step further – not only may we not own or possess it, but we have to take measures to actively disown and depossess our Chametz! Just like for Rabbi Yochanan you never really own an object unless you exert both possession and control over it, so too you never really disown Chametz until you’ve made an active statement of both disownship and depoessession. First I rid my house of Chametz – that is relinquishing my titular ownership. But then come Erev Pesach, I need to actively burn my Chametz, thereby relinquishing my possession of the Chametz. Though cleaning my house may seem to solve both problems (ownership and possession) in one fell swoop, this is not the case. Both aspects need to be addressed separately, and in each case, actively.
The Torah’s process of eliminating Chametz breaks down “possession” into its core components. It is up to us examine the different aspects of possession – titular ownership and physical possession – and work on actively being able to let go of each part. And then it is our challenge come the end of Pesach to be able to put our lives back together again, taking both ownership and possession of that which was once ours. Having this consciousness of the core component of ownership and possession will hopefully lead us to a more careful consideration of the items, ideas, and identities which will become “ours” in the coming year.