If an ox was condemned to death for killing a human,1 and subsequently the witness testimony that caused the conviction was proven false, Maimonides rules that whoever takes possession of the ox is now its owner:2

This ruling is sourced to the Talmud in tractate Keritot:

Rabbi Keruspedai says that Rabbi Yocḥanan says: Concerning an ox that was to be stoned, and subsequently, the witnesses were rendered conspiring, [I.e., the court ruled that these witnesses were conspiring to convict falsely], anyone who takes possession of the ox acquires it, as the owner of the ox relinquished his rights upon hearing that the animal was about to be killed.3

When the original owner heard that his ox was liable to be killed, he relinquished his rights to it. The fact that the testimony was false does not allow him to reclaim ownership.

A Contradiction in Maimonides

But Maimonides’ ruling based on Rabbi Yochanan’s statement seems problematic. Earlier in the chapter, in a similar case, he seems to rule entirely differently:

If an ox killed a human, and its owner attempted to consecrate it, the consecration is not valid. If he declares it ownerless, it is not ownerless.4

Once the ox is condemned, the owner can no longer exercise his ownership, since it is forbidden to benefit from an animal sentenced to death, rendering these transactions invalid.

But if an owner may not declare an item ownerless when he is no longer able to benefit from it, then how—in our original case of the ox condemned to death based on witness testimony that is later disproven—is it possible that the ox becomes ownerless, allowing anyone to claim possession?

How can these two rulings be reconciled?

The Resolution of the Ketzot

The Ketzot Hachoshen5 suggests: While it is true that the owner of an item from which one may not derive benefit cannot exercise his ownership, he does, however, retain ownership (much like an object that belongs to an individual but is not currently in his possession).6 As such, the owner cannot enter into any transaction of the item, even though he does own it.

In our case, however, once the witnesses were proven false, the scenario changes. When the owner relinquished his rights, it was not, after all, a condemned ox—it was a regular one!

Counterintuitively, had the witness testimony been valid, the owner would be unable to exercise his ownership in any way, and the ox would still belong to him.

Essentially, yes, something from which one cannot derive benefit cannot be made ownerless. But in the case of corrupt witnesses, the ox was never actually prohibited; therefore, when the owner relinquished ownership, he was able to do so.

Alternate Explanation Provided by Rabbi Schner Zalman of Liadi

The First Chabad Rebbe, Rabbi Schneur Zalman of Liadi, seems to agree with the resolution of the Ketzot. In Kuntras Acharon to Hilchot Pesach, he references our exact scenario and provides the solution of the Ketzot.7

However, in one of his responsa,8 Rabbi Schneur Zalman points out another distinction and provides an alternate resolution: there is a difference between actively making something ownerless and abandoning the hope of retrieving the item.

In the case of the ox whose witnesses were corrupt, the owner abandoned all hope of retrieving the animal—he did not actively render it ownerless. This is why others may claim it, even though he is unable to exercise his rights to it. When he gives up hope, it leaves his jurisdiction to the extent that someone else can take possession. Nevertheless, it is not considered fully ownerless, and one cannot exercise his ownership rights by actively making it so. As we quoted from Maimonides earlier, "If an ox killed a human [and it is to be killed], if he declares it ownerless, it is not ownerless."

Such is the difference between actively making something ownerless and abandoning the hope of retrieving the item. When one gives up hope, even though someone else can take ownership, the original owner remains unless someone else claims it. However, if one actively makes it ownerless, he no longer has any claim to the article.9

Why Two Explanations?

Why does Rabbi Schneur Zalman provide an alternate explanation in his responsa?

According to the Ketzot (and Rabbi Schneur Zalman in Kuntres Acharon), once the witnesses are found to be corrupt, we realize that when the owner made the ox ownerless, he had that ability since the ox was innocent all along. But, if the case against the ox was valid, he would indeed retain ownership. (True, he cannot benefit, but he would still be the owner.)

However, there is an issue with this line of reasoning: When the owner rendered his ox ownerless, he was sure that it was a condemned ox that he could not benefit from in any way. That is the only reason he made it ownerless.

Therefore—even if this turns out to be false—it should still be considered as something not in his possession, since, at that point, he did not think it was in his control. The fact that it turned out later that the ox was not guilty should not change the fact that at that time it was, for all intents and purposes, out of his possession. And as we established above, an individual cannot exercise ownership (not even to make the item ownerless) over an item that is not in his possession.

As such, Rabbi Schneur Zalman offers an alternate explanation. He explains that in the case of a condemned ox, the owner is not actively rendering the ox ownerless. However, when the owner despairs of retrieving the ox, this passively removes it from his possession to the extent that another individual may take ownership.10