Pe'ah 059

נושא: Pe'ah

Pe'ah 059

BET MIDRASH VIRTUALI

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The school of Shammai say: Hefker [only] for the poor is hefker; but the school of Hillel say: It is only hefker when it is so [also] for the rich, as in shemittah. When all the sheaves in a field contain one kav except one that contains four kavs and it is this one that is forgotten, the school of Shammai says: it is not shikheĥah' and the school of Hillel say that it is shikheĥah.

9:
Theft and robbery (larceny) may be defined as the unlawful taking of another's property with intent to deprive the rightful owner of it permanently. In order for the poor legally to take possession of their portion of the farmer's yield the farmer must be deemed to have relinquished his ownership of those crops.

10:
Hefker is the status of property which has no legal owner. Obviously property can acquire such a status through the understanding action of the legal owner. (It is, presumably, unnecessary to point out that 'public property' and property whose owner is not certain do not come under the category of hefker.) Thus one way – the usual way – by which property achieves the status of being hefker is when the owner formally relinquishes his or her ownership of the property.

11:
However, Jewish tradition recognizes two other means by which property becomes hefker – ownerless. Obviously, the Torah has the right to deprive someone of their property. But this is because everything that is may be considered to belong to the Divine Owner. In Peah 006 I wrote:

Many laws seem to be based on the concept that land is not owned by the person who happens to be living off of it. Land belongs to God and to God alone, and it is God who 'leases out' the land to those who seem to 'own' it, as it were. This is most clearly expressed in the Torah [Leviticus 25:23]:

Land shall never be permanently sold, because Land belongs to Me; you are [mere] landless leaseholders with me.

Now, if God is the real owner of the land and the farmer is only holding his land under lease as it were, God, as the lessor, has the right to dictate the terms under which the lease is granted. The terms include the concept that the Divine Lessor permits the human lessee to enjoy the fruits of 'his' land, provided that it is recognized that, by prior agreement, certain parts of the produce of the land are allocated by the Lessor to people other than the lessee. These people are the priests, the Levites and the poverty-stricken.

12:
But the sages also arrogated to themselves the right to deprive someone of his property. The most obvious example of this is the concept of prozbul. In the seventh year of every cycle of seven years according to strict Torah law [Deuteronomy 15:1-3] all private debts are automatically cancelled:-

Every seventh year you shall practice remission of debts. This shall be the nature of the remission: every creditor shall remit the due that he claims from his fellow; he shall not dun his fellow or kinsman, for the remission proclaimed is of the Lord… you must remit whatever is due you from your kinsmen.

The Gemara [Gittin 36a-37b] relates that during the first century BCE Hillel enacted the prozbul. This is an instrument or deed by which the creditor transfers to the Court (Bet Din) what is owed him by the debtor, so that the debt may be collected despite the incidence of the sabbatical year. (The Gemara explains that Hillel enacted the prozbul because it was observed that just prior to the sabbatical year the poor found it difficult – if not impossible – to find credit.) But the Gemara find this process problematic: since by Torah law (Divine decree if you will) the incidence of the sabbatical year cancels the debt, from that moment the debtor ceases to owe anything to the creditor and becomes the legal owner of the money lent him. By what right, then, can the sages (even one as great as Hillel) come and deprive that person of his property? The answer of the Gemara is that "a Bet Din has the right to declare property to be 'Hefker'. The biblical source for this [Ezra 10:8] describes how Ezra and his colleagues

made proclamation throughout Judah and Jerusalem to all the children of the captivity, that they should gather themselves together to Jerusalem; and that whoever didn't come within three days, according to the counsel of the princes and the elders, all his substance should be forfeited, and himself separated from the assembly of the captivity.

13:
The question which is raised in our present mishnah is whether there can be such a thing as 'selective hefker'. Is it possible for a person to declare his property derelict only to certain people, while others must still relate to it as 'private property'? The school of Shammai, who as we have seen came from the 'landed gentry' by and large, held that a landowner had the right to declare parts of his property to be derelict as far as the poor are concerned but anyone who is not poor may not take 'his property'. The school of Hillel hold that there is only one kind of hefker and that is absolute hefker: either property belongs to someone or it is derelict, and there is no other possible status. Halakhah follows the view of the School of Hillel.

To be continued.

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