Siman 268

Any found object that belongs to its finder, he does not acquire it until it reaches his hand or his domain. However, if he saw the found object and fell upon it, and another came and seized it, the one who seized it has acquired it. This is not like that which is common in the mouths of the masses, that when one sees a found object and says "half," he takes a portion with the one who lifts it; for behold, even by falling upon it he does not acquire it, and certainly not by mere sight. However, this fact that he does not acquire by falling applies in a public domain, but in a place where his four amot acquire for him, as will be explained, he acquires by his falling upon it. This is not like those who disagree on this and say that the falling diminishes his power, because he revealed his intent that he is satisfied to acquire through falling and not through his four amot, and falling is not a formal acquisition; for in truth, this is no proof that he did not intend to acquire it through his four amot, and the fact that he fell upon it was to strengthen his matter. But if we knew that he did not intend to acquire through the four amot, certainly he does not acquire through his falling.

The four amot of a person that he stands beside acquire for him, and when the find reaches within his four amot, he has merited it. This matter is from the enactment of the sages so that they should not quarrel with one another; therefore, they gave to whoever is first within four amot of the find the law of a chatzer, which acquires for a person when he stands beside it even if it is not guarded, as has been written in siman 200. Therefore, the law of four amot applies only at the sides of a reshut harabim, or in a simta, which is a corner adjacent to a reshut harabim where many people are not frequently present, or in a field that has no owners. However, one who stands in a reshut harabim or in the field of his fellow, where it is not relevant to say it should be considered like his chatzer, does not acquire until it reaches his hand. It has already been explained there in section 8 that also in a sale or a gift, four amot acquire; even though the primary enactment was because of a find, the rabbis did not differentiate, and such is the primary ruling, see there.

Two who came as one into the four amot of a lost object, or where two are standing and the lost object fell within their four amot, both of them have acquired it. Even though it is closer to one than to the other, nevertheless, since it is also within the four amot of the second, the power of both of them is equal regarding it. And if one arrived beforehand, another cannot acquire further within the four amot of the first. And such is the law regarding a sale or a gift: if the transferor is standing there beforehand, the acquirer can no longer acquire within the four amot of the transferor. And let it not be difficult for you how it is possible for both of them to have come as one into the four amot, for we established that it is impossible to be exact in a matter that occurs on its own without intent [Tosafot Eruvin 5b]; for it can be said that certainly this is so, but in any event, it is impossible to clarify who preceded, and automatically it is in the presumptive ownership of both of them and they divide it. However, if one of them seized it and says that he preceded, the second cannot remove it from his hand and can only administer an oath of hesset to him that it is so [it appears to me]. And every person acquires for himself his four amot where he stands even if the lost object arrived afterward, as is proven in Even HaEzer siman 30; see there. And if Reuven stood, and afterward Shimon came, and afterward Levi came and Reuven left, Levi also acquires the four amot even though Shimon arrived first.

One of the Rishonim wrote that a person's four amot only acquire for him when he is standing and not while walking, and the Tur wrote that the Rosh disagrees on this and holds that there is no distinction. Therefore, our teachers, the authors of the Shulchan Aruch, did not write this opinion at all. And it appears to me that they do not disagree regarding the law, for certainly if one passed within four amot of the find and did not stand there, and another came afterward and stood there, the second acquires and not the first, for it is a courtyard that is not guarded and does not acquire unless he stands beside it, as has been written. And it is obvious that by merely passing it is not called standing beside it. And that which the Rosh ruled that a walker acquires, this is even if he did not stand before the find came within his four amot, but rather the find preceded him and he walked and stood there, for he acquires in this. And even if another preceded him in standing before he himself stood, nevertheless, since in the path of his walking he preceded him, he acquires [and there is proof from the fact that it does not answer thus against Resh Lakish in Bava Batra 10a].

A person's courtyard acquires for him without his knowledge, even if he is not in the city at all, and if a lost object fell into it, it belongs to the owner of the courtyard. In what case does this apply? In a guarded courtyard. But in a field or a garden and the like, if he was standing beside his field and said, "My field has acquired for me," he has acquired them. But if he is not standing there, or if he was standing and did not say, "My field has acquired for me," whoever precedes him acquires it. This is the opinion of the Rambam in chapter 17 of Laws of Lost Objects. And even though regarding the acquisition of four amot one need not say anything, as is explicitly stated in the Gemara [ibid.], this is because it is an enactment of the sages so that they should not quarrel with one another, and they did not distinguish between whether he said it or did not say it [Beit Yosef]. However, in an unguarded courtyard, it does not acquire without speaking, and his reason will be explained shortly. [And the Maggid Mishneh wrote that this is from the Yerushalmi, and I wonder, for there it is regarding four amot as the initial thought of our Gemara (see there)].

And some say that standing at the side of his field alone is sufficient and we do not require an utterance at all [Tosafot, the Rosh, and the Rashba]. And some say that if the find is a living creature, such as a broken-legged deer or fledglings that have not yet flown and when he runs after them he reaches them, as will be explained, he does not acquire without an utterance; for when he speaks, he is aroused to acquire them and they are guarded for him, but when he does not speak, it is not guarded for him. However, regarding other finds, an utterance is not necessary [the Ran and Nimukei Yosef]. And regarding the reasoning of the Rambam, it appears to me that behold, in siman 189 it was explained that every kinyan requires intent to acquire. According to this, one must ask regarding a find: how shall his chatzer acquire for him without his knowledge, for behold, he does not intend to acquire? And it must be said that the chatzer is like his agent, and just as a person's agent acquires for him without his knowledge but with the knowledge of the agent, for "a person's agent is like himself," and even regarding the chatzer of a woman which was derived from "her hand" as written in siman 243, nevertheless it is no less than agency [ibid. 12a]. And just as one may acquire a benefit for a person in his absence, for he becomes like his agent, so too the chatzer becomes his agent. And this is only in a guarded chatzer, where the chatzer alone acquires. But in one that is not guarded, where he must stand at its side, it follows that his intent to acquire is required; for if he does not intend, there is no kinyan without intent since he knows of this because he is standing at its side, and the kinyan is not completed by the chatzer alone. And so the Rambam holds regarding a gift, as he wrote in the fourth chapter of Hilkhot Zekhiyah and as was explained there in siman 243. And the utterance is not an absolute requirement, but rather it is evidence of the intent, for if not so, who testifies that his intent is to acquire it? And consequently, whoever is first would acquire. Therefore, this law is not found in the Rambam in the laws of sale, because in a sale, the giving of the money testifies to the intent, which is not the case with a find or a gift. And our teachers who disagree hold that presumably it is pleasing to him to acquire and no evidence is needed for this, or they hold that even in such a case his chatzer is like his agent.

There are some among the great Acharonim who wished to say that since a person's courtyard acquires for him without his knowledge, all the more so his hand acquires for him without his knowledge. But this is not clear, for our teachers the Tosafot explicitly wrote that a person's hand does not acquire for him without his knowledge [Bava Batra 54a]. And it is not comparable to a courtyard, for in a courtyard, behold, he does not know of this, and if he had known he would have wanted it, and his courtyard becomes like his agent; but if he actually knows and does not intend to acquire, he has not acquired [Mishneh LaMelech ibid., and that which the Tosafot wrote in Gittin 61a s.v. "Likat," their intention was that it might have entered one's mind to say so, it comes to teach us that it is not so; and the Netivot Mishpat and the Ketzot HaChoshen did not see the words of the Mishneh LaMelech, and this is a proof to what I wrote in section 6, and study it carefully].

Our teacher, the Rema, wrote that his chatzer does not acquire for him unless he knows of the metziah or it entered his mind, but regarding something that is not common to come, his chatzer does not acquire for him even though a metziah came there; and if another came and took it there, he has acquired it, since the owner of the chatzer did not know of the metziah that was there before the second person acquired it. Thus far his words. The explanation of his words is that regarding something that is not common to come and it is possible that it will not become known to anyone, such as one who found in a heap or an old wall as was explained in siman 260, section 2, his chatzer does not acquire for him [Netivot HaMishpat], and there we explained the reason, see there. But regarding something that is not common to come and nevertheless it must necessarily become known, even though there is one who wishes to say that even in this his chatzer does not acquire for him, nevertheless most of the poskim disagree on this [ibid.] as I wrote there. And if he purchased an item under the assumption it was tin and sold it, and afterwards it became known that there was silver in it, it was explained in siman 232.

The courtyard only acquires when the find fell into the courtyard after despair, but when it fell before despair, it does not acquire, for when he despairs afterward, it is "despair without knowledge," and the find of his courtyard is no better than his own find. This is not like the one who disagrees in this matter and holds that regarding a courtyard it is not relevant to say "it came into his hand in a state of prohibition" [Shach].

If he saw others running after a metzia consisting of animals passing through his courtyard or his field, and they are not secured there as they are fleeing through his domain further, but he was standing at the side of his courtyard or his field—for with other movable objects he would acquire in such a case—if the animal is running in its usual manner, such as a deer running in its usual manner or fledglings that fly, where it is impossible to prevent them from leaving the courtyard, even if he says "my field or my courtyard has acquired for me," he has said nothing, for they are not secured by him at all. But if it is a broken deer or fledglings that have not yet flown, if he is standing at the side of his field and if he were to run after them he would reach them, and he said "my courtyard or my field has acquired for me," he has acquired them even though he did not run after them, for it is called a secured courtyard regarding this. But if he cannot reach them, he has said nothing, and whoever is first to them acquires them. According to this, with a domestic animal in such a case he acquires, for ordinarily he runs after it and reaches it, but with a bird ordinarily he runs after it and does not reach it.

And this is only regarding a find, but regarding a gift in such a case where they gave him a broken deer or fledglings that have not flown by way of kinyan chatzer, since there is another mind transferring ownership, its kinyan is more powerful, for he acquires even when he runs after them and does not reach them. And since they are rolling within his courtyard or his field, and the giver said to him, "Let your domain acquire for you," he has acquired. But if the deer was running in its usual manner or the fledglings were flying, and he did not stand near them such that he would be able to catch them, his courtyard has not acquired for him even in the case of a gift. And the reason is that since it runs in its usual manner, it is as if its end is not to rest; but when it is broken or the fledglings are not flying, it is like rolling, which is considered as if it were resting regarding a gift, as I wrote at the end of siman 243 [as is evident from the Rif in the first chapter of Bava Metzia]. And there are those who disagree on this, for since we do not require that he run after them and reach them, if so, the same applies to one running in its usual manner or to those flying, that he acquires in a gift [the Gra], for this is also like rolling. And if one declared an object hefker and threw it into the courtyard of his fellow, its law is like a gift [Sma]:

A minor female possesses a chatzer and possesses four amot, but a minor male does not possess a chatzer nor four amot. The reason for this matter has already been explained there, section 22; see there.

Some say that just as a person's courtyard acquires a lost object for him, so too if a merchant brought merchandise at a cheap price to Shimon's courtyard, and Shimon came and said "let my courtyard acquire it for me," and Reuven came afterward and took it, Shimon has merited because his courtyard acquires for him. And some say that Reuven has merited, since it is not a complete lost object because the owner of the courtyard still needs to purchase it with money, his courtyard has not acquired it for him. And also, regarding the reason of "a poor person turning over a cake," it does not apply to a lost object according to the first opinion in siman 237, and this reasoning appears primary [the Gra]. However, one may compare this to the law of a neighbor's preemptive right to fulfill "and you shall do what is right and good" [Mordechai, first chapter of Bava Metzia]. And see what I wrote in siman 260, section 11.

If after Reuven acquired the merchandise that came into Shimon's chatzer, where he said "let my chatzer acquire for me," and afterwards the opposite occurred, where merchandise came into Reuven's chatzer and he said "let my chatzer acquire for me," and Shimon acquired it, and Reuven does not want to give the merchandise to Shimon and says that his chatzer acquired it for him, and he also received the previous merchandise earlier, and Shimon claims "from whichever way you look at it" [mi-ma nafshach], give me either the first or the second; for if the law is according to the first opinion, give me the first, and if the law is according to the "there are those who say," give me the second. Our teacher, the Rema, wrote that if the law was not decided regarding the first until the second occurred, he must give Shimon one of the pieces of merchandise from whichever way you look at it. And if the law regarding the first was already decided by dayanim who ruled according to the "there are those who say," the second incident is like a matter on its own, and the burden of proof is on the claimant, and Reuven can now say "I stand by" [kim li] the first opinion. And there are those who say that he must give him one of the pieces of merchandise from whichever way you look at it, for the primary doubt is whether we say "the law stands" regarding the first incident and the second is a matter on its own, or we say "the law returns" and we must combine the two incidents together, and from whichever way you look at it, he should give him one of them [Shach and Taz]. And since this is the primary doubt, and many of the poskim hold that the law returns, therefore, even though there are many who ruled the law stands, nevertheless, he must give him one of them. And I do not see in this [reason] to contradict the ruling of our teacher, the Rema, for ultimately it is a doubt, and how can we extract from the one in possession? And even according to the "there are those who say," this is only when the two incidents occurred to Reuven and Shimon themselves, but if in the first incident Shimon was the litigant and in the second Levi was the litigant, even if Shimon comes with his power, they are not related to one another even when the first law has not yet been decided [Shach].