Story LineSeize the Hamentashen!Rabbi Meir Orlean
Roommates Nosson and Shimon were sitting in their room. They had just finished supper and were studying.
Nosson had some leftover hamentashen from Purim sitting on the table. “What’s with the hamentashen?” asked Shimon.
“I’m full from supper,” replied Nosson. “The truth is, I don’t really need the extra nosh.”
“What’ll you do with them?” asked Shimon.
“They’re hefker (disowned)!” declared Nosson. “They’re for anyone who wants then.”
“Glad to hear,” Shimon laughed. “I get hungry late at night. I’ll have some later!”
Later in the evening, Shimon overheard Nosson talking with his brother. “I still have hamentashen in my room,” said Nosson. “If you want, you can take them.”
Shimon told Nosson, “I was planning on eating them tonight. You declared them hefker!”
“But you didn’t take them yet,” replied Nosson. “They’re still sitting on the table.”
“Then I’m going to take them right now!” said Shimon. He began hurrying to the room.
Nosson starting walking after him. Shimon began running.
“I renounce my hefker claim,” Nosson called out. “I still want my hamentashen. You may not take them!”
“Too late,” said Shimon. “They’re already hefker and I’m going to get them first!”
Nosson began running after him. Shimon ran past the beis medrash and nearly bumped into Rabbi Dayan.
“I’m sorry,” apologized Shimon.
“What’s the big rush?” Rabbi Dayan asked.
Meanwhile, Nosson caught up with Shimon.
“We have a monetary question,” Nosson said.
“Certainly! What is it?” asked Rabbi Dayan.
“I made my leftover hametashen hefker when I was in the room with Shimon,” Nosson said. “Now he wants to take them, but I just retracted and want to keep them. Can Shimon take them?”
“Once a person disowns something and makes it hefker, he cannot retract, although he can seize the item first and reacquire it,” replied Rabbi Dayan. “Nonetheless, it is questionable whether the hefker declaration was valid in this case” (C.M. 273:2, 4; see Ketzos 273:1).
“Why?” asked Shimon.
“The Gemara (Nedarim 45a) teaches that hefkerus must be declared before three other people,” explained Rabbi Dayan. “Although the Torah validates hefkerus declared before even a single individual, the Sages required the presence of three, so that one can acquire the item and the other two serve as witnesses. This was partly to thwart the fictitious declaration of hefkerus of land to evade the requirement of tithes” (C.M. 273:7).
“Rema, however, writes that some maintain that even hefkerus declared privately, when one is alone, is valid,” continued Rabbi Dayan. “Sma (273:8) explains that Rema argues only on the first point, that Torah law does not require even one, but agrees that the Sages require three. However, the Gra (273:11) explains that Rema disagrees doubly, that the Sages required three only to exempt from tithes, but regarding ownership, hefkerus declared in private is valid. This assumes, of course, that the former owner admits that it is hefker.”
“So, according the Sma, the hefker condition was not valid,” noted Nosson.
“Seemingly. Even so, Tosafos and Rosh in Nedarim suggest that hefkerus of movable items suffices with ‘hefker’ stated before one even after the institution of the Sages,” said Rabbi Dayan. “The one who took the item is believed that the initial owner made the item hefker, since he could claim alternatively (migo) that he purchased the item. Other authorities do not distinguish between real estate and movable items” (Chochmas Shlomo 273:7; Machaneh Ephraim, Hil. Zechiyah Me’hefker #1; Aruch Hashulchan 273:7; Pischei Choshen, Kinyanim 23:5).
“Thus, due to the dispute whether ‘hekfer’ declared before one person is valid, the rule of hamotzi meichaveiro alav hare’ayah (the burden of proof is on the claimant) applies,” concluded Rabbi Dayan, “Shimon should not take the hamentashen now against Nosson’s will, but had he already taken them and had them now in his possession, he could keep them” (Sma 273:12; Mishneh Halachos 9:325).
From the BHI HotlineBeis Din Prerequisites
Q: The common practice in batei din is that prior to a din Torah, the litigating parties sign a shtar beirurin and perform a kinyan in which both parties obligate themselves to accept the ruling of the beis din or the Dayan. Are these prerequisites truly necessary? Doesn’t the very fact that the two parties have appeared in beis din already obligate them to accept the ruling even without a kinyan and shtar beirurin?
A: There are several reasons why a shtar beirurin is necessary.
1) Without a shtar beirurin, one of the parties could decide, in the middle of the case, that he wants to bring the case before a different beis din. The kinyan on the shtar beirurin requires the parties to keep the case in this beis din (Rashi, Bava Metzia 20a, s.v. “Zeh”; Shulchan Aruch, C.M. 13:2).
2) The shtar also serves as proof that the parties agreed to have these Dayanim adjudicate their case (Ohr Zarua, B.B. 232). If the defendant refuses to accept the ruling of beis din, the plaintiff can use this document in court to enforce beis din’s ruling, because civil law recognizes batei din as arbitrators if the parties accepted their authority by signing an arbitration agreement.
The Poskim add that if one of the parties refuses to sign the shtar (or an arbitration agreement, in jurisdictions that require one to be drawn up), which refusal will make it impossible to enforce the psak, he is consider a sarvan (one who refuses to appear in beis din), because his refusal to sign the document indicates that he will not accept beis din’s ruling. He is then subject to the penalties of a lo tzayis dina, one who refuses to follow the ruling of beis din (Kesef Hakodashim 75:1; Shu”t Ha’elef Lecha Shlomo, C.M. 1, Divrei Geonim 52:8).
Even if there is no foreseeable reason to have to enforce the ruling in court — e.g., it is a small claim — a kinyan, at minimum, may still be necessary, because without it one of the parties might be able to retract his agreement to follow beis din’s ruling.
If it was a beis din of three Dayanim, neither side can retract. Even if there were only two Dayanim, appearing before them is still considered an agreement to accept their ruling, and the parties are required to follow that ruling (C.M. 3:2, Shach 10).
If the two sides agreed to have a single Dayan decide their case, there are several factors that must be considered. If the Dayan is a mumcheh (expert; see Sma 3:5, Shevet HaLevi v. 8, 300:4 for the delineation of a mumcheh), his ruling is binding (Shulchan Aruch 3:2; Shach 7).
If he is not a mumcheh, even if he is a talmid chacham and posek, there is a dispute among the Poskim whether his ruling is binding. The Sma (22:6) holds that a mutual agreement to follow a non-mumcheh’s ruling is binding. The Shach (22:2) argues that this is considered a case of tarti l’rei’usa, two deficiencies in the Dayan’s ability to rule (one Dayan acting as two is one deficiency, and acting as three is a second deficiency), and without a kinyan his ruling is not binding.
While the Acharonim rule according the Sma, in some cases it could be problematic even according to the Sma.
It is quite common, for instance, for litigants to want their case heard at night, when we are not supposed to judge monetary matters (Shulchan Aruch 5:2). Some Poskim say that this halachah is so stringent that a judgment rendered at night is not binding (Shach, ibid. 5, ruling against the Rema, ibid. 2). If the parties agreed to have their case heard by a proper beis din at night, that agreement is binding (Sma ibid. 7). But if that judgment is rendered at night by one Dayan who is not a mumcheh, those are certainly two deficiencies and the ruling would not be considered binding — unless a kinyan was made at the outset (see Nesivos 5:1).
In addition, if the Dayanim rule that the two sides should compromise (pesharah), even if they initially agreed to accept the pesharah, they could retract that agreement — unless they made a kinyan requiring them to keep the pesharah (Shulchan Aruch 12:7).
To avoid these numerous pitfalls — and more — many batei din and Dayanim will not adjudicate a monetary dispute without a shtar beirurin and/or a kinyan.
Money mattersWeighing Extra (Hachraah)#453
Q: I heard that the seller should add a little “bonus” when weighing (hachraah). Could you please explain?
A: The Gemara (B.B. 88b) teaches that, when weighing, the seller should add of his own and give the customer extra. Therefore, he should tilt the scale slightly to the customer’s advantage. Alternatively, after level weighing, he should add a little to the customer’s purchase (C.M. 231:14).
Maharam Shick (C.M. #30) discusses whether the purpose of hachraah is to give the customer a “bonus,” or to be extra careful not to cheat him, in case there is some inaccuracy in the scale or in eyeballing level measure.
This mitzvah does not apply when selling to a non-Jew. We may not cheat him, but are not required to give him extra. Similarly, a non-Jew is not required to give extra when selling (Minchas Chinuch 259:1).
Halachah specifies the degree of tilt. There is a dispute whether these details are from the Torah or the Sages (Pischei Choshen, Geneivah 14:9).
Nonetheless, many justify the practice not to add extra nowadays. Be”H, we will discuss this aspect next week.