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).