YE'USH

YE'USH (Heb. יֵאוּשׁ; lit. "despair"), despair of property. A person's ownership of property ceases when it is apparent that he has made up his mind that the property will be out of his possession forever (see *Ownership). This occurs

(a) where he has indicated that he conveys the property to another in which case it ceases to be his the moment the latter acquires it (see *Sale;*Acquisition, Modes of),

(b) where he abandons it, or

(c) where he despairs of it (ye'ush), thus ceasing to be the owner of it and no further act is required of him. Ye'ush means that under certain circumstances the owner indicates that he has lost all hope of recovering his property. Ye'ush is distinguished from acquisition and abandonment since it is only possible in respect of an object which is out of the "despairing" person's possession. Despair of an object still in the owner's possession is not considered ye'ush. Similarly, for property to be despaired of it must be against the owner's wish, for he despairs because the object has been lost or stolen; but if the owner gives up the object of his own free will, it is abandonment, and not ye'ush. Ye'ush may be apparent either from the owner's speech or behavior, or from the circumstances in which the right went out of his possession. In the first instance, if the owner has said: "What a misfortune that I have suffered a loss of money!" (bm 23a) he has indicated that he has despaired of recovering his money, and the same applies to any other expression having the same meaning. Similarly, if a river carries away logs and their owner does not pursue them, he has indicated his despair (bm 22a). In the second instance, if a lost object has no identification marks, it is presumed that the owner has despaired of it and that it has become ownerless (hefker), belonging to whoever finds it. This is also the case with an identifiable object which has been lost in a place frequented by the general public (bm 21b), or where a long time has passed since it was lost (Rashi, bm 23b). According to the Jerusalem Talmud (bm 2:1, 8b) and Maimonides (Yad, Gezelah 11:10), even property which is lost to its owner and to all persons, for instance if carried away by the river, may be kept by its finder, since the owner has given it up for lost. The circumstances in which the object is found create the presumption of ye'ush if most people would have despaired of the object in such circumstances; and it is immaterial that the owner protests that he had not given up hope, for it is presumed that surely in his heart he has, in fact, despaired. Even if he has not, the finder may disregard such an exceptional state of mind. If the circumstances are such, however, that most people would not usually despair, then ye'ush must be preceded by a specific act or speech by the owner (Maharik, no. 3:2).

Ye'ush does not require an act on the part of the despairer, only an indication of his state of mind, as is the case in all other cases whereby the ownership ceases by an indication of the owner's mind (abandonment and conveyance). Thus ye'ush cannot apply to the legally incompetent (bm 22b). The case where the owner cannot know that he has lost the object in circumstances that would usually result in ye'ush, is the subject of a dispute between Abbaye and Rava (bm 21b). According to Abbaye constructive ye'ush (i.e., if the owner does not know that he has a reason to despair) is not deemed to be ye'ush because, since the owner has not yet set his mind to the fact that the property is lost and irretrievable, the ownership thereof has not ceased. The finder will therefore gain ownership of the lost article only if he has found it after most people would have already known of its loss and despaired thereof. According to Rava constructive ye'ush is deemed to be ye'ush because, when the owner of the lost property learns of its loss, it is to be presumed that he will despair of it, and his reason for not yet despairing thereof is his ignorance of the true state of affairs. This dispute concerning ye'ush extends to acquisition as well, as in the case where a person confers property on another which does not belong to him without the knowledge of the owner, and the owner subsequently consents thereto; because acquisition, like ye'ush, is only the cessation of ownership by the owner's resolving that the property will never return permanently into his possession.

The concept of ye'ush is employed in the laws of lost property and in the laws of theft and robbery. In such cases the property goes out of the owner's possession and, accordingly, when it appears that the property will not be recovered by the owner, there is justification for ye'ush. Thereafter the finder or thief or robber acquired ownership of the property. According to Tosafot (bk 66a, s.v.Hakhi) a finder who has taken lost property before any ye'ush, acquires it after there has been ye'ush, but has to pay the owner its value, in accordance with the laws of robbers. According to Naḥmanides (Milḥamot ha-Shem, bm 26b) if the finder takes the lost property with the intention of returning it, but subsequently changes his mind, the lost property never becomes his since the owner's ye'ush is, in fact, not ye'ush; but if the finder takes the lost property in order to keep it, he acquired it after there has been ye'ush. As to the laws of theft and robbery, various disputes are recorded in the Talmud, dating back to the day of the tannaim, as to when it was usual for a person to despair of converted property. There are some who think that only in the case of theft is there ye'ush; others contend that there is ye'ush only in the case of robbery; still others maintain that there is ye'ush in both cases. It is also disputed whether ye'ush is itself indicative of genuine despair in the owner's heart or whether a change of possession is also required (i.e., that the object pass into the hands of a third party), or a change of name (i.e., that the object becomes so transformed that people call it by another name) for the ye'ush to be genuine (see *Theft and Robbery). In the law of the State of Israel ye'ush is of no consequence, and ownership does not cease as a result of despair.

bibliography:

J.S. Zuri, Mishpat ha-Talmud, 6 (1921), 57; S.S. Zeitlin, in: Sefer ha-Yovel Levi Ginzberg (1946), 365–80; B. Cohen, in: Yisrael (1950), ed. by A.R. Malachi, 89–101; reprinted Cohen's Jewish and Roman Law (1966), 10–22 (Heb. sect.); S. Albeck, in: Sefer ha-Shanah Bar-Ilan, 7–8 (1970), 94–116.

[Shalom Albeck]