Kinyan Daled Amot (Part II)

  • Rav Moshe Taragin

 

 

In the previous shiur, we explored the scope of kinyan daled amot. Did Chazal merely award the item to the person in closest vicinity (even without a formal ma’aseh kinyan) in order to avoid aggression? Or did Chazal rezone the four amot radius into a personal and temporary chatzer? We also explored different applications of daled amot. In this shiur, we will examine some of the technicalities of daled amot employment, technicalities which may themselves reflect the true nature of the daled amot takana.

 

One immediate question of interest concerns the status of daled amot for someone who is in motion. The Shita Mekubezet (Bava Metzia 9b) cites the Ra’avad, who claims that daled amot was only instituted for someone who is stationary at the moment of kinyan, not someone who strolls through the daled amah radius of a hefker item. The Tur (Choshen Mishpat 268) cites the Ra’avad but disagrees, applying daled amot even to someone in motion.

 

Presumably, whether or not a person is moving has little impact upon whether hostility will occur in attempting to take first possession of a hefker item. If the takana is narrowly defined as awarding items to the first arriver in order to avoid strife, it would be odd to limit it to stationary people. Evidently, then, the Ra’avad agrees with the Rishonim who define the takana as a rezoning of the daled amah radius as a mini-chatzer. This rezoning is obviously virtual; the person within the daled amah radius does not actually OWN that area, as he does a classic chatzer. Chazal redefined this area as HIS for the purpose of kinyanim (and perhaps widespread kinyanim). However, this zoning can only occur if a person establishes a semi-permanent, or at least stable, “moment” at which the surrounding area can be designated as “HIS.” Indeed, it would be preposterous to claim that as a person walks, EVERY “panning” four amah radius becomes zoned as his. Thus, the Ra’avad’s restriction upon the application of daled amot only to stationary recipients may indicate that he viewed the takana as a rezoning of the four amah radius.

 

A statement of the Nimukei Yosef in Bava Metzia (10a) leads us to a similar conclusion. Considering the scope of daled amot (and agreeing that in theory it can operate for sales and gifts, and not only hefker acquisitions), the Nimukei Yosef questions why the Chakhamim bothered to institute the classic ma’aseh kinyanim, such as meshikha and hagba’ah. By definition, daled amot is ubiquitous and should obviate the need for any other kinyan. The Nimukei Yosef explains that while daled amot is THEORETICALLY possible for the purpose of a sale, most sales present a technical difficulty that would make the use of daled amot virtually impossible. The item is ALREADY LODGED IN THE FOUR AMOT of the previous owner, the mokher who now wishes to sell. Once he has established his presence and the area becomes HIS chatzer; the lokei’ach cannot utilize daled amot for his own kinyan. It is unclear from the language of the Nimukei Yosef whether the presence of the MOKHER or the presence of HIS ITEM renders the daled amot HIS, but either way, the Nimukei Yosef is asserting and incredible chiddush: the concept of daled amot can be used to BLOCK a kinyan, not only to ENABLE one.

 

Once again, it appears that we are encountering a broader definition of the daled amot takana. Had the takana been narrowly defined, it would have awarded items (lost or sold) to the people in closest vicinity who SEEK to claim the item. The prior presence of the mokher would therefore not disable the takana. However, if the takana rezones the area as belonging to the recipient, the prior presence of someone else – in this case, the mokher – may impede the rezoning of the area as belonging to the lokei’ach, thereby blocking the kinyan.

 

Another fascinating and innovative statement about daled amot may also reflect its structure. The gemara cites the daled amot takana in the context of a mishna in Bava Metzia that discusses two people angling for a metzia. One falls on top of the item, while the second person actually performs a kinyan (such as hagba’ah). The mishna awards the item to the second person, who actually performed a kinyan, and not to the person who tried to claim the item by falling upon it. The gemara questions this ruling, since the “faller” achieved daled amah proximity prior to the second person’s kinyan. The first answer supplied by the gemara is that daled amot does not operate for the faller since by falling upon the item, he demonstrated that he wanted to own the item through the act of falling (which is not a kinyan) AND NOT through the daled amah principle.

 

The Ran cites the Rashba, who claims that this rule governs ANY kinyan.  Mere general interest in kinyan is insufficient; to be fully koneh an item, a person must intend to utilize the ACTUAL kinyan that was executed. This is a bold and unexpected statement about the nature of ma’aseh kinyan and its relationship with the da’at necessary to accompany that ma’aseh kinyan. The more apparent reading of this gemara would delimit this principle to the kinyan of daled amot. In fact, most Rishonim claim that general kinyanim do NOT require specific da’at. Daled amot, however, will not benefit someone who does not wish to exploit its advantages.

 

This more conventional approach may suggest a more narrow definition of the daled amah experience. Had the Chakhamim legislated a new form of chatzer, it would operate in the standard form of kinyan; as long as general intent exists and the kinyan was executed, a kinyan should entail. However, if daled amot was never intended as the creation of a virtual kinyan chatzer, but rather allows an extra-legal awarding of items to people in closest vicinity, we can better appreciate the failure of this kinyan for a person who does not intentionally implement it. Many takanot of Chazal do not apply to a person who rejects their implementation for one reason or another. This principle – “Kol ha-omer i efshi be-takanat Chakhamim, shomin lo” – is well documented and empowers a person to deny the benefits of takanot that are usually advantageous but can sometimes be counterproductive. If daled amot has nothing to do with a newly defined chatzer, it may be dependent upon each and every isolated employment; every person can choose whether or not to implement the benefit of the takana. If, however, the takana rezones the area as a semi-permanent chatzer, it would be institutionalized and independent of the choices of particular potential beneficiaries.

 

To summarize: The scope and implementation of daled amot may reveal the nature of the takana. If the takana is narrowly defined, its scope may be limited (merely to acquiring hefker items), but it would apply to both moving and stationary individuals. However, if the area is rezoned as a semi-permanent chatzer, we may broadly apply the kinyan beyond the case of hefker (as discussed in the previous shiur), but may only apply it to someone who has established a presence. This question would also affect the role of the previous owner and whether his very presence impedes the processing of kinyan daled amot.

 

This question, which was articulated very clearly in the various positions of the Rishonim, may have been the basis for an interesting machloket AMORAIM about WHERE daled amot can operate successfully. R. Sheshet addresses the aforementioned issue of why the person who falls upon a lost item does not pre-empt the latter kinyan since he arrived in the daled amot radius first. He claims that daled amot will only operate in marginal areas, such as simta, which are officially considered part of reshut ha-rabim but are not frequented by many pedestrians. In REAL PUBLIC areas, classic reshut ha-rabbim zones, the takana of daled amot is inoperative. The mishna describing the faller and the kinyan- maker was describing a lost item in a conventional public area of reshut ha-rabim. Since the takana of daled amot is not effective in such a case, the first person to fully execute a kinyan ma’aseh obtains the item.

 

If the takana were geared primarily to averting conflicts, R. Shehset’s limitation would be counterproductive. The more public the area, the GREATER CHANCE of hostility and the GREATER NEED for a takana to preserve security and safety. By limiting daled amot to peripheral areas of reshut ha-rabim and not to central areas, R. Sheshet is effectively siding with the Rishonim who claim that Chazal rezoned the area as a chatzer even though it is not formally owned by the kinyan seeker. Semi-public areas can be rezoned by Chazal’s takana, but central areas through which everyone passes defy such rezoning and can NEVER be considered temporary chatzers. R. Sheshet clearly viewed the takana in this manner, compelling him to significantly circumscribe the takana.

 

Not all Amoraim agree to R. Sheshet’s limitation of daled amot to peripheral areas and not reshut ha-rabbim proper. R. Yaakov bar Idi (who first raises the daled amot concern in the mishna describing the faller and the kinyan- maker) answers the question differently and presumably believes that daled amot could operate EVEN in TRUE public areas. He may view the takana in the classic fashion – as a narrow award of the hefker item to the first arriver to avoid aggression. As such, not only would a classic reshut ha-rabim be included within the takana, it should be the primary context of the takana!