Siman 273

It is a known and agreed-upon matter that a person has the ability to declare his property hefker. And what is hefker? That he says, "These properties of mine" or "This object is hefker to all," whether regarding real estate or movable property. A person can only declare hefker a thing that is his and in his possession, but a thing that is not in his possession he cannot declare hefker, just as he cannot consecrate it. Therefore, if movable property was stolen or robbed from him, even if he has not despaired of its return, he cannot declare it hefker [Ktzot HaChoshen siman 211], unlike the one who disagrees on this. However, his objects that are in the hands of others he can declare hefker, for that which is deposited in the hand of another is as if it were placed with him, and he can declare it hefker or consecrate it [Bava Batra 88a]. But a loan that is in the hands of others he cannot declare hefker, for a loan is given for expenditure and is not considered in his possession; furthermore, he cannot even transfer it to another except by way of ma'amad sheloshtan by rabbinic enactment. Also regarding tzedakah it is effective in such a case when he says it to the collector, because we are the "hand of the poor" and it is like ma'amad sheloshtan [Nimukei Yosef, chapter 4 of Bava Kamma], or when he vowed to give a sela to tzedakah, even though it is not in his hand, he is obligated to fulfill his vow. But when he vowed a specific sela and it is not in his possession, the vow does not take effect [ibid.]. And in siman 262 we explained the difference between despair and hefker; see there. Also, when the object is borrowed or rented in the hand of another, he can declare it hefker, as was written in Orach Chaim siman 246, and the same applies that he can consecrate it, for this is called being in his possession [Ktzot HaChoshen ibid.].

We hold that as soon as one declares a thing hefker, it leaves his domain even if another has not yet acquired it [at the end of the fourth chapter of Nedarim]. The law of hefker is that whoever is first to acquire it gains ownership of the thing and it becomes his; even the owner who declared it hefker himself, if he is first to acquire it, he acquires it from the state of hefker. As long as he has not actually acquired it in practice, it does not enter his domain, and more will be explained regarding this. Therefore, with any matter of hefker, whoever is first to it acquires it, whether the thing is inherently hefker, such as in deserts, seas, rivers, and streams—everything in them is hefker—as well as the grass, trees, and fruits of desert forests and the like, or whether it is a thing that had owners and they declared it hefker.

And even though a person cannot divest himself of his own property with a mere statement when he has not handed it over to others, and one who says to his fellow, "my hand is removed from this field," has said nothing as long as he has not given it to his fellow, and even the language of mechilah is not effective as has been written in siman 241, and how can hefker be effective when another has not yet acquired it? Nevertheless, this is a decree of the Torah that the language of hefker is effective. And in the Yerushalmi, the sixth chapter of Pe'ah, they derived this from the verse regarding shemittah, as it is written: "you shall release it and abandon it," that you have another abandonment like this, and which is it? It is hefker, for so the Sages, of blessed memory, received it. Therefore the Sages, of blessed memory, said that one who declares hefker for the poor but not for the rich, it is not hefker until he declares it hefker for everyone like shemittah; and as long as he has not declared it hefker for everyone, it does not have the law of hefker, and the one who seizes it has not acquired it and is obligated in ma'asrot. [And the Rash wrote there that the derivation from shemittah is only according to Reish Lakish, and according to Rabbi Yochanan we learned it from pe'ah; but from Tosafot Bava Kamma 28a it does not appear so, and they do not disagree, and Rabbi Yochanan expounds the reasoning of Beit Shammai and Reish Lakish the reasoning of Beit Hillel, and observe carefully]:

The Rambam wrote in the second chapter of Hilkhot Nedarim: Hefer, even though it is not a neder, is like a neder in that he cannot retract. Thus far his words. And his intention is not to compare hefker to a neder as some have wanted to say, for what is the connection between one and the other? Furthermore, if so, let an inquiry for annulment be effective for hefker as it is for a neder, and we have not found this in any place [Ran Nedarim chapter 5]. Rather, the Rambam explains to us what we have clarified: where do we find that a person may remove himself from his own property with a mere statement? For when a person consecrates a matter, the matter enters the domain of hekdesh, and when he says it is for tzedakah, it enters the domain of the poor; but hefker does not enter the domain of others. To this he says that it is similar to a neder, for when one vows not to benefit from his property, he removes himself from them with the speech of his mouth, and they have not entered the domain of another [it appears to me].

In the Yerushalmi ibid., R. Yochanan and Resh Lakish disagree regarding one who declared hefker for a person but not for an animal, for an Israelite but not for a star-worshiper, for the poor of that city but not for the poor of another city; for R. Yochanan holds that it is hefker, and Resh Lakish holds that it is not hefker. According to the rules of the Talmud, the halacha follows R. Yochanan [and so it appears from Tosafot Gittin 47a, and there is no proof to the contrary from Bava Metzia 30b according to what the Rash wrote there, and even without this there is no proof, and examine carefully]. However, from the Rambam, of blessed memory, who omitted this law, it implies that he holds like Resh Lakish, and so wrote one of the great authorities. It appears to me that in any case it is a legal doubt. The reasoning of R. Yochanan appears to me to be because the primary mitzvah of Shevi'it is for the sake of the poor, as it is written, "and the needy of your people shall eat." Therefore, even though in truth it is declared hefker for all during Shemittah, nevertheless, since we see the primary intent of the Torah and the purpose of Shevi'it, therefore regarding hefker it is effective in such a manner. And that which the Yerushalmi says, "declared hefker for the poor of that city and not for the poor of another city," is not precise, but rather it means for that city and not for another city [and it mentioned the poor because of the wording of Beit Shammai, see there and examine carefully] [and see Noda BiYehudah, Even HaEzer, siman 59].

Just as a consecration in error is not a consecration, so too is an abandonment in error. Not only this, but even if in the essence of the abandonment there was no error, but rather regarding the one who acquired from the abandoned property—for example, if he abandoned his objects and his intention was that so-and-so and so-and-so should take them, and another came and took them—it is an error and the abandonment is nullified and returns to the owners. This is specifically when we know clearly that his intention was not for another, for if not so, he is not believed [as is evident from Tosafot Gittin 47a, s.v. ad'ata]. Therefore, there are some of the great authorities who ruled regarding chametz that one abandons on the eve of Pesach, and a non-Jew took it, and another Israelite came and purchased it from the non-Jew after Pesach, that he did not acquire it for the reason that with the intent of a non-Jew he abandoned it, and not with the intent of an Israelite [Magen Avraham siman 448]. And the reason is because it is an abandonment in error. This is also the explanation of the Ran at the end of the fourth chapter of Nedarim. And the Noda BiYehuda, Yoreh Deah siman 134, derived from this that one can abandon an object to one specific person in his presence, but it is not logical at all, for this is not the definition of abandonment; and the words of the Ran and the Magen Avraham are built upon the aforementioned Tosafot, and examine this carefully.

The Rambam, of blessed memory, wrote [ibid.]: One who declares land hefker, whoever comes first and takes possession of it acquires it; by Torah law, even if he declared it hefker before one person, it is hefker and is exempt from tithes. However, by the words of the scribes, it is not hefker until he declares it hefker before three people, so that one may acquire it if he wishes and the two may testify. Thus far his words. And it is possible to explain his intention that only regarding land do we require three, so that he does not perform an act of evasion; but regarding movables, even when he declares it hefker before one person, that person can take it and would be believed with a migo that "it is purchased in my hand," which is not the case with land, which remains in the possession of its owners and requires witnesses [Machaneh Ephraim]. And it is clear from the words of the Rambam that even by Torah law one must at least declare it hefker before one person so that he would be able to acquire it, but between himself and himself, the status of hefker does not apply to it [Sma]. And some say that even between himself and himself it is hefker by Torah law, and by rabbinic law one requires three even for movables. And in a case where the hefker saves him from a prohibition, such as where he lent his animal to a gentile and he did not return it to him before the Shabbat and he will perform labor with it on Shabbat, he may declare it hefker even between himself and himself [Rosh, end of chapter 4 of Nedarim], and as is written in Orach Chaim siman 246. And even if he declares it hefker before three people, no person can acquire it, for we are witnesses that he only declared it hefker to remove himself from a prohibition [Tur ibid.], and it is like a mistaken hefker; and there is no evasion in such a hefker, for we are witnesses that with a whole heart he declares it hefker in order to be saved from a prohibition [Tosafot Bava Metzia 30b]. However, according to the opinion of the Rambam, he must at least declare it hefker before one person, and there is one who says that even the Rambam admits to this [Machaneh Ephraim], but it does not imply so. And there is a doubt according to the one who holds that it is effective between himself and himself whether hefker in the heart is effective; and from the words of the Tosafot [Shabbat 18b] it implies that it is effective, but the Ran at the beginning of Pesachim wrote that it is not effective because matters of the heart are not matters [and in siman 269 we wrote in the name of the Rashba that this is only when his mouth and his heart contradict one another, see there].

Hefker for a set time is considered hefker, for its essence is derived from shemittah, and shemittah is for a set time [Sma]. And even though this is not a proof, for the fruits that are forbidden in the seventh year are never permitted and the land was not permitted to others, nevertheless, it is no better than a sale or a gift, which are effective for a set time. And there is no proof from hekdesh to the contrary, for hekdesh is not effective for a set time; hekdesh is different, for sanctity does not expire on its own. Furthermore, a neder can be for a set time. However, there is a difference between permanent hefker and hefker for a set time, as will be explained.

It was taught in a baraita in Nedarim [43b]: One who declares his field hefker, for all of three days he may retract; from this point onward, he cannot retract. If he said, "Let this field be hefker for one day, for one week, for one month, for one year, for one shemittah cycle"—as long as no one has acquired it, whether it be he or another, he may retract; once someone has acquired it, whether it be he or another, he cannot retract. And there are some of our teachers who explained that this is the explanation: because there were devious people who wanted to exempt their fields from ma'aserot, they declared them hefker, for hefker is exempt from ma'aser, and afterward they themselves acquired it from the hefker. And even though hefker must be before three people, they declared it hefker before their friends, whom they knew would not acquire it [it appears to me]. Therefore, the sages enacted that if he acquires it within three days of his declaration of hefker, it shall not be considered as acquiring from hefker, but rather that the hefker is nullified and he is obligated to separate the ma'aserot. And they enacted that even if another acquires it within the three days, he does not effect a purchase and it shall be returned to the one who declared it hefker. And why did they enact this? For if not so, he also would not comply, as he would say: why if another acquired it is he considered as acquiring from hefker, and I, why should I not be considered as acquiring from hefker? Therefore, they were compelled to enact that all the first three days do not have the law of hefker, such that it belongs to the owners for retraction; and after three days, whether he takes it or another takes it, he is one who acquires from hefker, for for more than three days the owners would not leave it if their intention was for deviousness. And regarding hefker for a time—for a day or a week and a month and a year and a shemittah cycle—there is a different law: for in permanent hefker, the matter leaves his domain immediately when he declares it hefker even if another has not yet acquired it, as I wrote in section 2; but in hefker for a time, the sages said according to his intent that his intention was that as long as another does not acquire it, it shall not leave his domain, for since this is a deficient hefker, presumably such was his intention. And also they did not concern themselves with deviousness in this, for if his intention was for deviousness, why did he declare it hefker for a time? Therefore, whether he or another may acquire it immediately and it is like acquiring from hefker. And according to this, the essence of this law is only for ma'aserot, and therefore the Tur did not write it because ma'aserot is not practiced in this time. Nevertheless, the end of the baraita he should have brought, according to what I wrote in Yoreh Deah siman 221, that from hefker it is permitted for one who is forbidden by a vow from benefiting to benefit because it leaves the owner's domain immediately; if so, in hefker for a time, it is forbidden for him to benefit until another acquires it.

The Rambam, of blessed memory, wrote there: One who declares his field hefker, and no person has acquired it within three days, he may retract. After three days, he cannot retract unless he preceded others and acquired it; behold, he is like one who acquires from hefker, whether it be him or another. One who says, "This field is hefker for one day, for one week, for one month, for one year, for one Shmita cycle"—as long as neither he nor another has acquired it, he may retract. Once it has been acquired, whether by him or another, he cannot retract. And for what reason may he retract here until they acquire it? Because this is an uncommon matter, for a person does not declare hefker for a fixed time. Thus far his words. Our teacher, the Beit Yosef, transcribed most of his words in the Shulchan Aruch, section 9 and section 10. The commentators struggled with his words [see Lechem Mishneh; and the Sma aligned them with the explanation of the Ran, and the difficulty is evident. Aside from this, the previous explanation is difficult: for what reason were they not concerned with deception regarding hefker for a time? Furthermore, the reason of "deceivers" follows Rabbi Yose, yet the first clause was satisfactory to him according to the Rabbanan even without this].

And it appears to me that according to the Rambam, of blessed memory, this is the explanation: Behold, from the essential law, he has the power to nullify the hefker with the speech of his mouth when he says, "I retract from the hefker and nullify it," if another has not yet acquired it. For just as he makes it hefker with the speech of his mouth, so too is his retraction, for speech comes and nullifies speech. Only after three days did the sages ordain that his retraction should not be effective. And even when he acquires it with the intent to nullify the hefker, the hefker is not nullified; rather, he is like another who acquires from hefker, and the property has every law of hefker. And the reason is because within three days the report goes out that so-and-so made his property hefker, and the name of hefker is established upon the property. Therefore, throughout the first three days, if another has not yet acquired them, he may retract from his hefker with the speech of his mouth. But after three days it is not effective; not only is it not nullified through speech, but even if he acquired the property with the intent of nullification, his hefker is not nullified, but he is like one who acquires from the hefker like another. And only regarding hefker for a set time, because it is an uncommon matter, they established it according to the law: that as long as another has not acquired it, and he also has not acquired it with the intent of acquisition from hefker, he can nullify the hefker with mere speech even after three days. And if he acquired it, even he himself, with the intent of acquisition from the hefker, he can no longer nullify the hefker. [And proof is from the Yerushalmi Peah chapter 6 and Nedarim end of chapter 4, which says there regarding the words of Rabbi Meir that hefker leaves his domain immediately: "Thus far when he made it hefker for a long time etc. For a short time, let us hear it from this: One who makes his field hefker for three days may retract. Rabbi Zeira said: He only said three, but after three he may not retract. Rabbi Shimon taught: Even after three etc. The Baraita supports Rabbi Zeira: In what case does this apply? When he made it hefker without specification, but if he said 'my field is hefker for one day' etc. This implies that a person may make hefker and retract etc." Thus far his words. And this is what he asked: that when a long time has passed, he certainly cannot retract, but if a short time has passed from the hefker, if he can retract. And it resolves that he can retract only until three days in permanent hefker, but in hefker for a set time he can always retract. And in the Yerushalmi of Peah, Rabbi Zeira's answer is missing from the printing, and the commentators were pressed regarding this, and according to what I wrote for the Rambam, it is well settled.]

And even though in all matters of hefker another person can acquire them, regarding the hefker of male and female slaves it is not so, for immediately when he declares them hefker, they acquire themselves and go out to freedom. This applies specifically to adults who have the legal capacity to acquire themselves, but regarding minors who do not have the legal capacity to acquire themselves, whoever seizes them acquires them, and whoever preceded and performed a chazakah on them that is effective for a slave, as was explained in siman 196, acquires them. And even though regarding a minor, when there is another's mind conveying it to him, he has the power of acquisition, as I wrote in siman 243, nevertheless, hefker is not called another's mind conveying it, for immediately when he declared it hefker, it left his domain [see Netivot HaMishpat]. And in Yoreh Deah siman 267 this was further explained, and see what I wrote in siman 275.

Hefker is not performed via an agent, for if one said to his agent, "Go and declare my property hefker," it is not effective, just as it is not effective to command one's fellow to vow on his behalf [Beit Yosef Orach Chaim siman 434, and see what I wrote in the book Eliyahu Rabbah siman 78].

Just as there is a "handle" for a vow and for tzedakah, so too there is a "handle" for hefker. Therefore, one who says, "Behold, this is hefker and this is like this," or if he said, "and also this," behold, he has attached the second to the first and it is certainly hefker. But if he said, "Behold, this is hefker and this," the second is a doubtful hefker, for perhaps his intention regarding the second was for another matter. And even though regarding tzedakah we follow the stringent view, as I wrote in Yoreh Deah siman 258, regarding hefker we do not remove it from the possession of the owners. And it appears to me that if he admits that in his heart he intended to declare it hefker, it is not similar to hefker in the heart about which we were uncertain in section 7, for in this case it is certainly hefker since he also expressed it with his lips.

Looking does not effect acquisition in the case of ownerless property. For example, regarding an ownerless object, if one came and guarded it and was looking at it so that no person should take it, he has not acquired it by means of his guarding until he lifts it, if it is a movable object. And if he is unable to lift it, he should acquire it through pulling it into his domain. And if it is land, he must take possession of it in the manner that purchasers and recipients of a gift acquire. And even though regarding an object that has owners and the guard guards it, the guard becomes liable for negligence regarding the object—and since this is ownerless property, we should have said that through his guarding he is considered like the owner of the object—nevertheless, he does not acquire through this. And even if he is standing within his four amot, since he did not intend to acquire it through that, but only through his guarding, he does not acquire [it appears to me].

One who catches fish from the seas and from the rivers, or who catches birds or species of wild animals, since they have no owners, he has acquired them, provided that he does not hunt in his fellow's field. For even though his fellow does not acquire them, as it is a courtyard that is not guarded, nevertheless, the sages initially prohibited hunting them there. Regardless, if he hunted there, he has acquired them. However, if the fish were in the preserves of the owners, and similarly a wild animal or bird in preserves, even if it is a large preserve and still requires hunting, nevertheless, the preserve acquires them for the owners since they have an interior, and these belong to the owner of the preserve. And even if the owners did not yet know that they entered the preserve, for a person's courtyard acquires for him without his knowledge. And a preserve placed even in a river or in a desert field has the status of his courtyard since he has permission to place it there and they are guarded within the preserve. And one who hunts from preserves is a complete thief. And if Reuven placed a vessel in Shimon's courtyard to receive an ownerless object, Reuven acquires it and not Shimon. And even though we establish that airspace that is destined to rest is like it has rested, and when the ownerless object fell into Shimon's airspace it was destined to rest, nevertheless, since the vessel intervenes, Shimon does not acquire it, for it is not destined to fall into his domain [Netivot HaMishpat], not like the one who disagrees on this [see Bava Metzia 102:].

According to what has been explained, we have learned that one who spreads a net in the field of his fellow and traps a wild animal or a bird in it, even though he has no permission to do this thing as I have written, nevertheless he has acquired them since the owner did not acquire them. However, if the owner of the field was standing within his field and said, "My field has acquired for me," and in a manner where he is able to seize it as I have written in siman 269, the owner of the field has acquired it and the owner of the net has nothing. And according to the opinion of the "there are those who say" that was explained there, he acquires even without speaking [Tur]. And the same law applies if the courtyard is guarded, even though he did not stand beside his field, for the courtyard acquires for him and his net is of no use to him even if it has an interior [Maggid Mishneh].

Reuven who spread a net into the sea, the river, or the wilderness, and fish or beasts and birds were gathered into the net, even though he has not yet acquired them when the net is not a vessel that would acquire for him within the vessel, nevertheless it is forbidden for another to come and take them. This matter the sages enacted because of the ways of peace. And if the other took them from the net, it is not collected in beit din, only by the laws of Heaven. But if the net was a vessel and he took them from within the net, behold, he is a complete robber and they remove it from his hand in beit din.

A ship traveling in rivers and seas, where fish jumped and entered into the ship, the owner of the ship has acquired them through the law of a courtyard. And even though a moving courtyard is not a means of acquisition, as has been explained in siman 202, nevertheless, a ship is not considered a moving courtyard, for it does not move of its own accord, but rather the water moves it, and it rests upon the surface of the water. And even though for other matters the ship is not considered as resting, nevertheless, regarding acquisition it is considered as resting, for a courtyard was included by extension from the hand, and the hand moves as well; rather, since the hand rests upon the body and the body moves, it is considered as resting, and so too regarding a ship [Tosafot Bava Metzia 9b].

A poor person who beats the top of a tree of ownerless property, who strikes the tree with a staff or with his hand and causes its fruits to fall, and the fruits fell to the ground—even though he has not yet acquired them, as the fruits have not entered his hand or his domain, nevertheless the sages prohibited another from taking them for the sake of the paths of peace. And if another took them, there is no element of absolute gezel to extract them through a beit din; rather, he has committed a transgression and is punished by the laws of Heaven. But if the fruits came into the hand of the poor person before they fell to the ground, he has acquired them, and if another took them after they fell to the ground, it is absolute gezel and we extract it from him through a beit din. And even though he did not grasp them in his hand but only to knock them down, and we do not know if he intended to acquire them with his grasping, nevertheless it is absolute gezel, for who is to say that he did not intend to acquire them? [Tosafot Gittin 61a, and see what I wrote in siman 268].

Our sages, of blessed memory, said [Bava Metzia 107a] that cress growing in a flax field is hefker, and any person is permitted to take them because they damage the flax, and it is pleasing to the owner that they be taken. But if the flax has already hardened until it is fit to take seed from it for sowing, it is forbidden to take them, because it has already damaged what it damaged and will not damage further. Likewise, if they stand on the border, it is forbidden to take them because they do not damage the flax. From this we have learned regarding all types of produce, that when something inferior grows among them which damages the produce, another may take them, for it is certainly pleasing to the owner. But if they have already damaged and will not damage further, it is forbidden to take them.

A field that contains kilayim, and in the Land of Israel where there is a prohibition of kilayim as I have written in Yoreh Deah siman 295, if it contains one twenty-fourth of another species, which is a quarter-kav per seah, the beit din declares the entire field ownerless and they shall announce regarding it that it is hefker. This is from a rabbinic penalty so that they will be careful regarding the prohibition of kilayim. And some say that it does not require an announcement and it becomes hefker on its own [see Sma].