HEFKER


HEFKER (Heb. הֶפְקֵר), ownerless property and renunciation of ownership. Hefker is property that is ownerless and can therefore be legally acquired by the person who first takes possession of it. There are two categories of ownerless property: (1) property that has never been owned before – such as wild animals and birds, fish of the river and ocean, and wild or forest plants (Maim. Yad, Zekhi'ah, 1:1–2); and (2) property that has ceased to belong to its former owner.

Property becomes hefker in two different ways, just as *ownership can generally cease in the same two ways:

(1) When it is clear that the property can no more return permanently to an individual's possession – for example, birds which have escaped (Ran on Rif, Ḥul. beginning of Ch. 11) – provided that no other person has acquired it. Similarly, the property of a proselyte who leaves no Jewish heirs becomes hefker, since his gentile relatives do not inherit from him.

(2) When the owner decides not to have it again in his possession, i.e., if he renounces it or if he gives up hope of recovering *lost property. As in all other instances of termination of ownership, such as *ye'ush, the only formality required in the case of renunciation is the manifestation of the owner's intention, whether by word or conduct, as when he declares "this is renounced in favor of anyone who wants it" (Ned. 43a) or by any conduct to this effect. Thus, for instance, if a Jew purchases land from a non-Jew, the latter may vacate it on receipt of the purchase money, whereas the purchaser may not wish to acquire the land except in the prescribed manner in which it would be acquired from another Jew, i.e., by shetar or ḥazakah (see *Acquisition). It is thus possible that in the interval the field becomes ownerless and may be acquired by anyone taking possession of it (BB 54b), although in practice the secular law of the land would usually prevail to make the transfer effective. Similarly, the circumstances in which property is found may indicate that ownership thereof has been renounced, as in the case of "intentional loss" (avedah mi-da'at), i.e., when the owner knowingly leaves the property in a place where he is likely to lose it, such as produce scattered on the threshing-floor (BM 21a), or open jars of wine or oil in a public domain (BM 23b). The fact that ownership is relinquished by mental decision means that minors, having no "mind" in law, cannot dispose of their property by renunciation (BM 22b). For the same reason hefker created through a mistake of fact (see *Samson b. Abraham of Sens, Comm. Pe'ah, 6:1), or under duress (TJ, Suk. 4:2, 54b) is void.

There is a difference of opinion with regard to hefker between the schools of Shammai and Hillel. The former hold that a renunciation in favor of the poor only is valid, comparing it to *pe'ah ("the corner of the field," Lev. 23:22), while the latter maintain that to be valid the renunciation must apply to rich and poor alike, as is the case with regard to shemittah ("the sabbatical year," Lev. 25:1–7). In R. Johanan's view both schools agree that renunciation in favor of all human beings, but excluding animals, or to all Jews, but not non-Jews, is valid, while Simeon b. Lakish maintains that the school of Hillel would regard it as invalid (TJ, Pe'ah 6:1, 19b). It is possible that the difference of opinion centers around the principle that where the renunciation is not of universal application, the renouncer, by preventing the property from being acquired by certain categories excluded from the renunciation, thereby retains some possession of it which is a bar to renunciation. However, where the owner disregards the possibility of it being acquired by those whom he excludes, he thereupon ceases to guard it and it passes out of his possession. The school of Shammai opines that the owner who renounces his property in favor of the poor has no fear that the rich may take possession of it, while the school of Hillel disagrees.

Ownership of property that has been lost ceases from the moment the owner gives expression to his despair of recovering it (see *ye'ush). In the case of hefker there is a dispute as to whether it takes effect immediately upon renunciation, in which case the owner cannot retract, or upon the acquisition of the property by another (Ned. 43a; TJ, Pe'ah 6:1, 19b). A person may renounce his property for a fixed period, and if it is acquired by another within the stated period it becomes the latter's permanently. At the end of the stated period the renunciation is automatically annulled if the property has not so been acquired (Ned. 44a).

Hefker property is exempt from a number of commandments. It is free from the obligations of the gifts due to priests and levites, as from terumah ("heave offering"), tithes, and the giving of the firstborn of animals to the priest. Advantage was sometimes taken of this law to evade these obligations. The owners would renounce their property to evade their liability, subsequently reacquiring it before others could take possession of it. To prevent this an enactment was made restricting the ability to withdraw a renunciation to three days from the time it was made (Ned. 43b); within this period a renounced field remains subject to the various imposts, and owners would be afraid to make the renunciation apply for a longer period lest the field be acquired by someone else. However, there are different opinions as to the details of this enactment. Similarly, it was enacted that renunciation had to be made before three persons (Ned. 45a), so that it could be made public and people would be able to take advantage of it. Some scholars hold that the requirement of three witnesses is based on biblical law; others hold that in biblical law two witnesses suffice for this purpose, and that the need for three is a rabbinical enactment.

In the State of Israel, ownerless property belongs to the State, in accordance with the "State Property Law, 5711/1951." For acquisition of ownerless property, see *Acquisition. For hefker bet din hefker, see *Confiscation and Expropriation, *Takkanot.

[Shalom Albeck]

Shemittah and Hefker

It has recently been proposed that the law of hefker be applied to solve the problem of shemittah (the Sabbatical year) in the State of Israel. The approach thus far adopted to solve this problem in practice has been that of the heter mekhirah, i.e., the temporary sale of the property on which the produce grows to a non-Jew, so that the law of shemittah does not apply. Rabbi Naphtali Ẓevi Judah Berlin (the NeẒiv, Resp. Meshiv Davar II.56) ruled that the prohibitions of the shemittah year do not apply to property that has been made hefker by its owner, much like the rule that the prohibition of ḥameẓ on Passover does not apply to property that has been made hefker by its owner. Soon after the establishment of the State of Israel, it was suggested that the Neẓiv's ruling be used to obviate the application of shemittah prohibitions, by making the property hefker. This suggestion raises a number of issues, such as whether property can be made hefker for only a limited period of time, and whether it is possible to prevent another person from receiving ownership of property that has been made hefker; a number of responses were offered to these questions. At the time, the Chief Rabbinate discussed the suggestion but did not issue any ruling. Recently, the suggestion has again been raised.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 97 n. 1 and 4, 138–40; 3 (1922), 76 n. 8, 78 n. 4, 85f.; J.M. Guttmann, in: Ve-Zot li-Yhudah… Aryeh Blau (1926), 77–82; Herzog, Instit, 1 (1936), 287–96; S.S. Zeitlin, in: Sefer ha-Yovel… Louis Ginzberg (1945), 365–80; B. Cohen, in: Israel (Heb., 1950), 89–101; reprinted in his Jewish and Roman Law (1966), 10–22 (Hebrew part); ET, 10 (1961), 49–95; S. Albeck, in: Sefer ha-Shanah… Bar Ilan, 7–8 (1970), 94–116. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:282, 415, 490, 564; idem, Jewish Law (1994), 1:333; 2:507, 596, 685; I. Warhaftig, "The Seventh Year in Land Which is Hefker," in: Teḥumin, 13 (1993), 76–88 (Heb.).


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