Ani Ha-mehapekh Ba-charara (Kiddushin 59)

 

I.  Does this law apply to all cases?

 

     Rashi (ad loc.) maintains that the concept of "ani ha-mehapekh" applies both to business transactions and "hefker" (claiming ownerless objects).  Therefore, if someone had discovered but not yet acquired an abandoned lost object, no one else is allowed to preempt the finder and acquire the object for himself.  Tosafot (ad loc.) think that it only applies to business transactions as the "rasha could buy elsewhere or involve himself in another transaction."  However, in the case of hefker, a person is not considered to be a rasha, as he has a legitimate right to acquire the hefker object for himself since he cannot go elsewhere to find a similar lost object. 

 

     Rabbenu Tam cites the gemara in Bava Metzia 10a to prove this point.  If a person sees a lost object and spreads his garment over it (which is not a recognized mode of acquisition), and another person comes and takes it for himself, it belongs to the second individual.  At first glance, it seems difficult to understand this prooftext.  Everyone would seem to agree that in such a case, the object belongs to the one who actually acquired it.  The only question involved here is whether his act is moral and ethical or he is considered a "rasha."  Although we will return to this point later and suggest another approach, we may simply explain that Tosafot thought that this gemara implied that it was morally and ethically proper to do so, as it is a case of hefker.  (Ran in Chiddushim on Rif.)

 

     Tosafot go on to cite a gemara in Bava Batra 21b that seems to contradict Rabbenu Tam.  The gemara says that a fisherman should not fish near one who began to fish earlier.  At first glance, the gemara is applying the principle of 'ani ha-mehapekh ba-charara' in a clear case of hefker.  However, there are many explanations as to why this case is different than other instances of hefker.  The Ramban (Bava Batra 54b and 21b) explains that the fish there were already caught and actually belonged to the first fisherman.  The Ketzot Ha-choshen (283:4) explains cleverly that since the fish had moved in the direction of the original fisherman, they were thereby already acquired by the first fisherman through meshikha (acquisition accomplished through movement of the object towards the buyer). 

 

     Tosafot in Bava Batra posit that Rabbenu Tam felt that one could protect his own interests in a particular item, only in a situation where he could not easily attain the same object elsewhere.  A regular hefker item is unique, as it can not be attained elsewhere, and so  the second individual that attempts to acquire it can not be called a rasha.  However, this particular case is different.  Although the fish (and the sea) are hefker, one could easily go fishing elsewhere.  Hence, the second fisherman is violating the principle of 'ani ha-mehapekh ba-charara.'  This opinion holds that the distinction between hefker and business transactions is based on the availability of the desired item.  This raises the issue of whether "ani ha-mehapekh" would apply to someone who wishes to buy a particularly unique object, such as an object d'art. 

 

     Our Tosafot (Kiddushin 59b) say that we must distinguish between our case where people are merely involved in acquiring a particular object and a case in which one interferes with another's livelihood.  If someone has a trade or business, no one is allowed to encroach on his "parnassa" (livelihood). 

 

     Lastly, Rabbenu Meir, father-in-law of Rabbenu Tam, said that fishermen used to bait their nets with dead fish.  Since the first person had already done so, and his effort had caused the fish to gather, the encroacher would actually be stealing.  It is possible to interpret this to mean if someone made an investment which created a particular situation, no one is allowed to take advantage of the situation created.  We can employ this concept to explain the case (Bava Batra 54b) of a Jew who bought (with money) a field from a non-Jew.  For technical reasons, the field was relinquished by the non-Jew but had not yet become the property of the Jew.  The gemara there explains that anyone who "grabs" the land has legal title to it.  Rashbam (ad loc.) maintains that legally he could do so, but he would be called a "rasha."  While this is technically case of hefker, we may assume that even Rabbenu Tam would agree that he is a "rasha" as the "buyer" had invested in creating the situation.

 

Summary

 

     The gemara says that it is prohibited to 'butt in' and acquire an item that someone else was involved in acquiring.  Rashi says that this rule applies in all types of transactions, while R. Tam says that it is permissible to acquire hefker ahead of someone else.  We are forced to sharpen this distinction to accommodate the gemara in Bava Batra 21b that does not allow a fisherman to fish near his competitor even though fish are ostensibly hefker.  The Rishonim explain that Rabbenu Tam extends this prohibition to any case where the item is not readily available elsewhere, or where the first buyer has already invested in creating this new situation.

 

II. Legal ramifications of "Ani Ha-mehapekh"

 

     Tosafot (Kiddushin 59b) conclude that a teacher may not offer his services to a student of another teacher unless the student is already dissatisfied with the first teacher.  This is easy to understand based on Rashi's interpretation that "ani ha-mehapekh" applies to all situations.  According to Rabbenu Tam, however, this rule can be applied here, only because of a special reason: - either because the second teacher is interfering with the former's livelihood, or because a teacher "invests" in a student and in a sense "creates" him.  (See Maharit ad loc. who develops this point.)

 

     The major issue to be discussed, however, is HOW to apply this rule - can we force the transgressor to return the item he usurped?  Ritva (Kiddushin 59a) and Ramban (Bava Batra 54a) say in the name of Rabbenu Tam that if someone is called a "rasha," he is coerced by court to do restitution.  The Ran (Kiddushin 59a) points out that otherwise, the prooftext of Rabbenu Tam (Bava Metzia 10a, cited above) is inconclusive.  Remember that the gemara there did not state that the second party was transgressing 'ani ha-mehapekh;' rather it declared that the object belonged to him.  From here Tosafot learned that this principle does not apply to cases of acquiring hefker.  Only if one MUST return the object in question to the first person in standard, non-hefker, cases of 'ani ha-mehapekh,' does the statement that the object legally belongs to the second person prove Rabbenu Tam's point that the principle of 'ani ha-mehapekh' does not apply here.

 

     However, Ritva rejects this point, citing the fact that R. Abba (in our gemara) did not return the land to R. Gidal, because it was his first real estate transaction.  If by law he is obligated to return it, what was the basis for his hesitations?  Perhaps we can answer and explain the gemara even according to R. Tam.  In this case, R. Abba was unaware of R. Gidal's involvement and perhaps Rabbenu Tam felt that you could not be considered a "rasha" unless you intended to usurp the person who preceded you.  (See Pitchei Teshuva Ch.M. 237:2.)

 

     The Meiri (ad loc.) says that it is a meritorious practice to return the object but it is not dictated by law.  The Ritva, however, obviously understood that Rabbenu Tam felt it was a legal imperative to return the object, as the original "mehapekh" had monetary rights in the object (even if the encroacher was unaware of him).  R. Moshe Feinstein (Iggerot Moshe Ch.M. vol. 1, #60) endorses this position of the Ritva, although it is then still unclear why R. Abba did not return the land immediately.

 

     In the case of the Jew who bought a field from a non-Jew (Bava Batra 54b cited above), the usurper would have to return the field to the original purchaser - Rashbam, Rosh and Rabbenu Yona et al. cite such an opinion.

 

Summary

 

     In summary, we could say there are four opinions whether restitution must be done.  1) Meiri - as an act of "chassidut" (piety) it should be done.  2) Rabbenu Tam as interpreted by Ritva (and endorsed by R. Moshe zt"l) - it is a real legal obligation to return the object.  3) Rabbenu Tam may be interpreted that there is a legal obligation to return only if one was aware that he is 'ani ha-mehapekh' and was therefore a "rasha."  4) Ritva [and Maharik responsum 192] - there is no such obligation at all.

 

     One could qualify this summary and posit that perhaps, if the person involved was indeed an "ani" (pauper), the rule might be more stringent (see Ran ad loc.).  This would probably fall within the general intent of the Meiri, who took a moral and not a legal approach to this principle of 'ani ha-mehapekh ba-charara.'

 

     The sugya is theoretically important insofar as it deals with the interface of individual legal rights and word obligations.  Furthermore, it has significant practical implications, since it may set certain limits on a free market economy.  Therefore, it is not surprising, that this issue has engendered a great deal of debate in responsa literature.  R. Moshe Feinstein (Iggerot Moshe Even Ha-ezer vol. 1, #91) deals with the question of usurping shiddukhim (arranged marriages), and says that it might depend upon the debate between Rashi and Rabbenu Tam if "ani ha-mehapekh" applies to hefker items.  The interested reader is advised to see that discussion.

 

 

Sources for Next Week's Shiur: Kiddushin Le-Achar Lamed Yom (Kiddushin After 30 Days):

------------------------------

Mishna 58b "Ve-khen ha-omer le-isha"

Gemara 59a "Lo ba acher... u-mevatel devara"

Gemara 59b "Mekudeshet la-sheni... tzerikha"

Ketubot 82a "De-khi ata Rav Dimi amar Rav Yochanan... kani me-akhshv" and Tosafot s.v. Ha

Tosafot and Rashba 59a s.v. Af al pi she-nitakhlu

Ran (24a in the Rif) s.v. Rav u-Shemuel

Ran (24b) s.v. U-ba