Chaim and Zev had been roommates in yeshiva for a number of years. They had purchased, often jointly, many pictures of Gedolim (great Sages) to adorn their walls.

When the time came to head their separate ways, they divided the pictures that they had jointly bought. They were able to agree about all of the pictures except for a beautiful drawing of Harav Yosef Shalom Elyashiv, zt”l, which they both desperately wanted, and two other photos.

“I don’t see any way out of this other than a lottery,” said Chaim. “One will get Rav Elyashiv’s picture, and the other will get the other two photos.”

Zev was not thrilled about this arrangement, especially since he had found the picture of Rav Elyashiv and suggested that they buy it, but he didn’t have a better way of deciding the issue.

The two cast a lottery, and Chaim won the picture of Rav Elyashiv — but Zev grabbed the picture and refused to hand it over.

“You know that for something to be legally binding, there needs to be a kinyan, an act of acquisition,” he said. “A lottery is just a convenient means to help decide, but does not carry any legal validity until you take the item. I’m retracting my agreement to decide by lottery.”

“What do you mean that a lottery does not carry any legal validity?” asked Chaim. “A lottery is often used to determine respective shares, especially between partners. Even Eretz Yisrael was divided by the tribes through a lottery.”

“There, Hashem decreed that the Land should be divided through a miraculous lottery,” said Zev. “But that doesn’t mean that a lottery between you and me carries legal weight!”

“Once the lottery is cast, it’s over!” argued Chaim. “Please give me the picture.”

“I’m not giving it to you until we speak with Rabbi Dayan,” said Zev.

“Agreed,” said Chaim. They walked over to Rabbi Dayan’s beis midrash.

“We agreed to divide our joint Gedolim pictures by lottery,” explained Chaim. “Zev now refuses to honor the lottery. Isn’t a lottery legally binding?”

“We find, regarding the division of Eretz Yisrael to the tribes, that a lottery has legal consequence,” said Rabbi Dayan. “Although there were additional factors there — such as the Urim V’Tumim — any lottery carries validity, since the two partners are mutually interested in dividing in this manner (B.B. 106a).”

“Does that mean that, after the lottery, I already owned the picture?” asked Chaim.

“This is disputed by the Rishonim,” answered Rabbi Dayan. “The Rambam, cited by the Shulchan Aruch, rules that a lottery confers ownership; thus, Zev has no legal ability to retract. The Rosh, cited by the Rema, however, maintains that the lottery just decides the shares. It enables each party to go ahead and posses his respective share without explicit agreement of the other, but does not confer ownership until an act of acquisition is made on the respective share. According to this opinion, Zev is able to retract until you acquire the picture (C.M. 173:2).”

“Whom does the halacha follow?” asked Zev.

“Shevus Yaakov (3:162) considers the issue unresolved,” replied Rabbi Dayan. “However, Maharsham (3:186) rules like the first opinion, that a lottery confers legal ownership. He adds that if there was a formal kinyan sudar beforehand to divide based on the lottery, or the two parties signed a contract to that effect, the lottery would certainly confer ownership (Pischei Choshen, Shutfim 3[72]).”

“What about a lottery that is meant only to determine who gets to choose first?” asked Chaim.

“That kind of lottery certainly does not confer legal binding to the arrangement,” responded Rabbi Dayan, “since it is not similar to the division of Eretz Yisrael. This lottery does not clarify the shares and certainly does not confirm ownership. Therefore, either party has the legal ability to retract (Pischei Teshuvah 173:2).”

“I must add, though,” concluded Rabbi Dayan, “that even where there is a legal possibility to retract, it is usually considered untrustworthy and morally reproachable (C.M. 204:7).”