The Laws [Governing] Ownerless Property and the Overstepping of Boundaries

Whether land or movable property (Shulchan Aruch, Choshen Mishpat 273:3).

See Nedarim 43a.

A vow to donate one’s possessions to the poor establishes a binding commitment upon the donor, for since a mitzvah is involved in his pledge, our Sages employed the principle: “A pledge to the Most High is equivalent to transferring one’s property to an ordinary person” (Tur and Shulchan Aruch, Yoreh Deah 258:6). This does not apply to declaring property ownerless, for such property may be taken by the rich as well as the poor. Nevertheless, as the Alter Rebbe (based on Rambam, Hilchos Nedarim 2:14) continues to explain, there is a similarity between the two in that in both instances, one is forbidden to retract his commitment. Among the explanations for this restriction is that in both instances, the person is bound by the prohibition “He shall not desecrate his word” (Bamidbar 30:3), which requires that he uphold any pledge he makes. This prohibition prevents a person who declared an article ownerless from retracting, even though the article has yet to be acquired by another person (Ketzos HaChoshen 373:1). See further explanations in Encyclopedia Talmudis, Vol. X, pp. 55-56.

See Nedarim 7a.

See the gloss entitled Tzofnas Paaneiach to Rambam, Hilchos Nedarim 2:14 and Hilchos Matnos Aniyim 2, which queries whether: a) by declaring an object or property ownerless, the previous owner relinquishes his ownership and thus the object has no owner; or b) the declaration gives every person a right to acquire the object. See Likkutei Sichos, Vol. XVI, pp. 136-137, where these concepts are explained.

Peah 6:1; Bava Metzia 30b. In such an instance, the object remains the property of its original owner and even a poor person cannot acquire it. There is a difference of opinion among the Sages (Talmud Yerushalmi, Peah 6:1) as to whether one can declare property ownerless only vis-à-vis Jews or whether non-Jews must also be given the right to acquire it. Noda B’Yehudah (Even HaEzer, responsum 59) rules that unless non-Jews also have the option of acquiring the article, it was not really considered as ownerless. Turei Even (gloss to Rosh HaShanah 15) differs and maintains that as long as all Jews are given the option of acquiring it, it is considered ownerless.

See Nedarim, loc. cit.

I.e., that is their natural state and no activity is required to render them ownerless.

The Alter Rebbe’s ruling is taken from Rambam (Hilchos Zechiah U’Matanah 1:1).

Raavad takes issue with Rambam, citing Bava Kama 81b which states that deserts, forests, and the like of Eretz Yisrael are ownerless only with regard to the members of the tribe in whose ancestral portion the desert or forest is located. A person who is not from that tribe may not take from the trees or shrubbery growing there.

In his Kuntreis Acharon (note 1), the Alter Rebbe mentions the resolution proposed by the gloss Lechem Mishneh: that Rambam’s ruling originates from an earlier Talmudic ruling (Bava Metzia 30a), which permits a person to gather vegetation growing in the fields of others. The Alter Rebbe objects to this solution, since the license granted there refers only to picking simple grasses that people don’t usually desire. No license is granted to chop down trees or the like.

Instead, the Alter Rebbe favors the solution suggested by the Maggid Mishneh, which states that Rambam is speaking only about the Diaspora and not Eretz Yisrael. As the Alter Rebbe continues to explain, Eretz Yisrael was divided among the tribes according to G‑d’s decree. Hence, although there too it is necessary to manifest ownership over the land to acquire it, nevertheless, since the land was given to the tribes by G‑d, the situation is comparable to a situation where a person gave a colleague several fields as a present. By manifesting ownership over one field the recipient acquires all of them, even if they are distant from one another. Similarly, with regard to Eretz Yisrael, by manifesting ownership over a certain part of its tribal portion, the tribe acquired the entire portion. Thus its members alone have a right to the fruits of the forests there, even though no individual had effectively acquired that specific area.

In the Diaspora, by contrast, there is no concept of the land being given by G‑d. Hence, before a person takes formal possession over it, the land is ownerless. Thus the fact that people from a specific place have acquired other portions of land does not give them any right to the forests and the like in that region. The only exception is land conquered by a king in a war. In that instance, he acquires all the land that he conquers, because that is the accepted practice of all kings and is universally sanctioned.

In contrast, one may not take an animal or plant found in a field belonging to another person (Tur and Shulchan Aruch, Choshen Mishpat 273:13). After the fact, there are times when the person’s acquisition of such entities is effective and other times when it is not depending on the extent of the animal’s freedom of movement, as stated there.

The term “manifest ownership” is a translation of the Hebrew term chazakah. As the Alter Rebbe continues to explain, one of the ways in which land is acquired is by manifesting ownership over it, i.e., performing an act that only the owner of the land would perform.

E.g., to trim the trees so that they will grow, not necessarily to collect wood.

E.g., he digs an irrigation ditch, weeds it, or constructs a fence around it.

I.e., as stated in Kuntreis Acharon (note 1), in Eretz Yisrael the forests do in fact belong to the tribe in whose possession they are located, because they were granted to that tribe in the division of the land, which was carried out according to G‑d’s word. Hence, the fact that no one ever manifested ownership over that land is of no consequence.

Certainly, a Jewish king could acquire land through conquest, as stated by Rambam, Hilchos Melachim, conclusion of ch. 4, with regard to a Jewish king’s conquest of lands in the Diaspora {a marginal note appended to the first printing of the Alter Rebbe’s text (cited in note 23 of the present Hebrew edition)}.

See Gittin 38a and the commentaries to Bamidbar 21:26, which explain that acquisition by conquest is recognized by Scriptural Law. See also the Alter Rebbe’s Shulchan Aruch, Orach Chayim, sec. 649:10, which mentions a practical ramification of this law.

See Hilchos Gezeilah U’Geneivah, subsection 15 below.

And similarly, a democratic government.

This reflects the principle dina demalchusa dina, “The law of the kingdom is binding law.” Sefer Meiras Einayim 369:12 explains this principle as follows: The entire land is the property of the king. And a person can do whatever he wants with regard to his own property. The Chasam Sofer offers a slightly different rationale: By making a decision to live in a particular country, a person agrees to accept its laws. He has no right to live in a country without doing so.

Today, in many countries, unoccupied land is considered the property of the state. It and everything on it is considered as state property.

Bava Metzia 107b.

The difference between geneivah (theft) and gezeilah (robbery) can be explained as follows: Geneivah refers to taking someone else’s property discreetly. Gezeilah, by contrast, involves taking something by force, against the will of its owner (Rambam, Mishneh Torah, Hilchos Geneivah 1:3).

Gittin 59b, 61a. If, however, the snare had a receptacle, it would be considered a k’li, a container, and anything in it would be acquired by its owner (Shulchan Aruch, Choshen Mishpat 273:13).

Even though catching the fish does not represent a formal means of acquisition, since a person would consider them as his own, it is proper to respect his claim so as to not arouse strife.

With regard to the prohibition against snaring an animal on Shabbos, as long as it is necessary to use a snare, the animal is considered as free (the Alter Rebbe’s Shulchan Aruch, Orach Chayim, sec. 316:1). Nevertheless, it is considered to be the property of the owner of the domain.

See Hilchos Metziah U’Fikadon, subsection 10 above. As stated there, this applies only to ownerless articles that he will likely discover in the future. Evidently, the fish and the animals referred to here are considered “likely to be discovered.”

Gittin 61a. A marginal note appended to the first printing of the Alter Rebbe’s Shulchan Aruch (cited in note 38 of the present Hebrew edition) states that although the Talmud (op. cit. 59b), speaks of a poor man, that is only because it describes a common circumstance, for the poor are entitled to gather the leftovers of the harvest and they are likely to be present to glean from a field. In truth, however, this law applies to any person.

The interpretation of the term yado, literally, “his hand,” as “his domain,” is found in the commentaries to Bamidbar 21:26. See also Rashi, Gittin 10b, et al.

I.e., ownerless doves; the bracketed additions are made on the basis of Rashi’s commentary to Chulin 139b.

Bava Metzia 102a.

On the contrary, they can fly away at will. Hence the laws applying to them are different from those applying to the fish, wild animals, and fowl mentioned in subsection 4. If the doves lay eggs in the dovecote and then rise off them, the eggs are, however, acquired by the owner of the dovecote, for the eggs are immobile.

As in the case of the snares mentioned above, in this instance the doves are not formally acquired by the owner of the dovecote. Nevertheless, since he would think of them as his own — and a disagreement would probably arise if someone would try to take them from him — to preserve peace, our Rabbis ordained that his ownership be recognized.

Bava Kama 114b.

Bava Metzia 10a. Our Sages ordained that this area be considered “a courtyard safeguarded by its owner,” even though, in fact, it is not safeguarded and another person could also take the articles found there.

If two people come within four cubits of the same article at the same time, it should be divided between them (Rama, Choshen Mishpat 268:3).

E.g., a forest, a meadow, or other lands like those mentioned in subsection 2.

I.e., were he standing there, the presence of the article in his field would enable him to acquire it (ibid., 11a).

Subsection 6. See also Hilchos Metziah U’Fikadon, subsection 10 above.

E.g., a public thoroughfare or street, or a market-place. In alleys or corners where there is less human traffic, this convention does apply (Shulchan Aruch, Chosh ­en Mishpat 268:2). Even those opinions that maintain that our streets and thoroughfares are not considered as public domains with regard to the prohibition against carrying on Shabbos consider them as public domains in this context.

The Alter Rebbe appears to be following the approach of Sifsei Kohen 243:11, who maintains that this applies to any female minor, even one who has a father.

To explain: Rama, Choshen Mishpat 243:23, follows the approach of Rabbeinu Yitzchak Alfasi and states that this applies only to a female minor who does not have a father, for only such a female minor needs to acquire her bill of divorce by herself. If she has a father, he acquires the bill of divorce for her. Hence she does not need to possess the right to acquire objects. Most Rishonim differ and maintain that since some female minors need to acquire a bill of divorce by themselves, every female minor is given the right to acquire objects according to Scriptural Law.

Bava Metzia 10b.

I.e., the Torah grants a female minor the right to acquire objects. This includes acquiring an object by virtue of its presence in her courtyard, for placing the object in her courtyard is equivalent to placing it within her hand. Accordingly, since the right to acquire an object within a radius of four cubits is an extension of the right to acquire an object found in one’s courtyard, a female minor is given that privilege (Rambam, Hilchos Gezeilah VeAveidah 17:10).

Bava Metzia 11a.

A male’s right to acquire an article by virtue of its presence in his courtyard is derived from a different halachic convention, that of shlichus, agency. His courtyard acts as an agent for him. Since a male minor is incapable of charging an agent to act on his behalf, he is incapable of acquiring it via his courtyard (Rambam, loc. cit.).

Because a male minor cannot acquire property independently according to Scriptural Law.

Bava Metzia 12a; Gittin 59b.

See Hilchos Mechirah, subsection 10 above; Hilchos Gezeilah VeGeneivah, subsections 1, 25 below.

Bava Metzia 12b.

The Sages feared that if such children did not give their father the ownerless objects they discovered, enmity would arise. Since he grants them their sustenance, it is natural for him to think that any ownerless object they discover should be given to him.

For a male, the attainment of majority (bagrus) means reaching the age of thirteen and manifesting signs of physical maturity. For a female, majority is defined as reaching the age of twelve-and-a-half and manifesting signs of physical maturity. {In certain contexts, a female is considered as having reached majority at twelve, and then she is considered as a naarah. With regard to financial matters, she is not considered fully independent until the age of twelve-and-a-half (Rambam, Hilchos Ishus 2:1).}

These concepts are derived by our Sages (Kiddushin 3b) through the exegesis of Biblical verses. See also Kesuvos 46b.

Ibid., 65b. These were granted to a woman’s husband by our Sages in return for his undertakingthe responsibilityto support her and provide her with her sustenance and clothing. See Rambam, Mishneh Torah, Hilchos Ishus 12:3-4.

Jews who willingly sold themselves into servitude because of financial need, or who were sold by the court because they did not have the means to pay for an object that they stole. See ibid., Hilchos Avadim, chs. 1-3. These laws are not practiced in the present age.

A girl whose father sold her as a maidservant due to the family’s destitution. See ibid., ch. 4.

Bava Metzia 12a. Although such servants are under obligation to work for their master, they have an independent financial capacity and can acquire objects for themselves.

As stated in the subsection 7, when a person is standing in a semi-public place — in a corner of the public domain or in a public courtyard — he acquires an object by virtue of its presence in his proximity. This subsection is speaking about a person standing in the public domain itself (or in another person’s private domain).

Ibid., 10a; Peah 4:3. The rationale is that these acts are notformally recognized as kinyanim, formal acts through which articles are legally acquired. Hence, although the person desired to acquire the article through these actions, his acquisition is not valid.

In a place where the presence of an object within a radius of four cubits enables a person to acquire it, we do not say that since he fell on the article, he indicated that he did not desire to acquire it by virtue of its presence in those four cubits. Instead, he is considered to have acquired it (Rama, Choshen Mishpat 268:1).

See Kiddushin 59a, which uses the analogy of a poor person “seeking a cake,” i.e., looking to obtain a source of sustenance, to describe a situation in which one Sage purchased a piece of property that another Sage had been seeking to purchase. Rashi understands the example of “seeking a cake” as referring to trying to achieve a short-term gain and hence, interprets it as describing a situation where a poor person was seeking to acquire a lost article, while Tosafos understands the example as referring to something comparable to acquiring property and hence, offers the second interpretation cited by the Alter Rebbe.

Although a person is described as “wicked” for undertaking such an action, the court does not assess him with a penalty. These words of censure, however, imply that one should seek to remedy the situation. See Igros Moshe, Choshen Mishpat, Vol. I, responsum 60.

See the Alter Rebbe’s Responsa, responsum 9, where he states that someone who violates this prohibition cannot be considered G‑d-fearing and hence should not be employed as a ritual slaughterer.

For there is no way of telling when such an article will be discovered again. Hence, the second person will incur a loss and not merely be obligating himself to endure increased difficulty for the sake of the poor person.

I.e., while a standard cannot be enforced requiring everyone to refrain from acting in this manner, it is certainly appropriate for a conscientious person to do so.

In such an instance, since the transaction has already been concluded, it is forbidden for the article to be sold to another person.

The Alter Rebbe is emphasizing that were another person not to be permitted to buy the object, the purchaser would have an easy bargaining position, for until he lost interest, the seller could not sell it to another person.

And thus by refraining from buying it, one would be helping a fellow Jew — the purchaser — at the expense of the non-Jew.

Imrei Yaakov (note 49) suggests that for this prohibition to apply, all the details of the transaction — including the delivery of the article, the payment schedule, and the price — would have to already have been concluded.

And thus one would be benefiting a fellow Jew by adding to the price.

In which instance it would be unnecessary to show the non-Jew the extra measure of ethical consideration shown to a fellow Jew.

This is speaking about a situation in which a Jew rented an inn or the like from a non-Jewish landowner. Another Jew is prohibited from speaking to the landowner about renting the land, because by doing so he would be infringing on the boundaries of the first and possibly disenfranchising him. This restriction applies even if the renter had not yet begun negotiating with the landlord concerning the coming year. Our Rabbis imposed this curb to insure that each individual Jewish tenant could maintain his livelihood without the threat of losing his source of income.

Similar concepts also apply with regard to renting dwellings for personal use. It is forbidden to speak to the owner of a dwelling occupied by a Jewish tenant until the latter decides to vacate the dwelling. This applies whether the owner is Jewish or non-Jewish. The penalties are, however, more severe if the owner is non-Jewish (see Imrei Yaakov, note 51).

The term baal habayis literally means “a householder”; see footnote 69.

The Makneh (to Kiddushin, loc. cit.) states that this restriction applies even if the first teacher’s contract had expired, as long as he is still in the home of the employer.

We are speaking about a situation where a person employed a private tutor to instruct his sons in Torah studies. The teacher would dwell in the employer’s home and receive a salary, in addition to room and board.

As long as the first teacher is employed, another teacher who desires the job is forbidden to negotiate with the employer. Doing so would be an infringement on the livelihood of the first.

It is questionable if this law applies only in the situation described by the Alter Rebbe, for, teaching positions were scarce at that time and teachers would travel far from home to obtain employment, or whether it also applies in the present age with regard to teachers in schools. On the one hand, there are more positions available. Nevertheless, by and large, teachers are concerned about their positions and there is certainly not a plethora of jobs to be had.

It is questionable whether or not submitting an application for the position together with a resume is considered as trying to influence the employer.

Thus we consider this analogous to the instance described in the previous subsections.

From the Shulchan Aruch, Choshen Mishpat 237:1, it would appear that similar concepts apply to other professions as well.

Even though he will be taking him away from the first employer. A worker always has the right to leave his employer and seek a better offer, even if he is in the midst of his work (see Hilchos Sechirus, subsection 21 below). Here, however, the question is regarding the ethics of the second employer. Seemingly, it is not desirable to try to lure away another person’s employees. Nevertheless, in this instance, leniency is granted because good teachers are rare and thus the situation is comparable to a lost object that will not necessarily present itself again (Sefer Meiras Einayim 237:8). See Avnei Nezer, responsum 18, who maintains that a factory owner may try to lure workers away from another factory. Minchas Pitim 237, however, forbids this.

The intent is that no one has a prior claim to the non-Jew’s business to the extent that others are barred from doing business with the non-Jew. It is not considered as if his property already belongs to the person with whom he frequently does business.

Bava Basra 54b.

I.e., taking away business that he has already established.

Subsection 10. The second opinion there states that the restriction against seeking to preempt“a poor person seeking a cake” applies only with regard to seeking a transaction or employment, since one can find a similar opportunity elsewhere. The present instance, however, is comparable to a person seeking to acquire an ownerless article [one of the opinions cited by Rama (Choshen Mishpat 155:5)].

Sefer Meiras Einayim 386:9 emphasizes that the intent is that the second Jew may not lure the non-Jew. If, however, the non-Jew approaches him on his own initiative, there is no prohibition.

Kin’as Eliyahu opines that there is no difficulty in professionals advertising their services, even though obviously, part of their intent is to lure clients away from others. Seemingly, this is no different than opening a shop near an existing shop. A prohibition applies only to directly soliciting another person’s client.

Bava Basra 21b.

Bava Metzia 60a. To translate this into contemporary concepts: A storeowner may give away free samples and offer other incentives to attract customers. This is not considered unfair business practice.

I.e., he can place his merchandise “on sale.”

Yechezkel 18:6.

Tehillim 15:3.

Sanhedrin 81a, based on the first prooftext; Makkos 24a, based on the second.