Hefker Le'aniyim

Peah (6:1) | Yaron Gottlieb | 17 years ago

The first Mishnah in the sixth perek of Peah discusses an additional legal issue - the laws of renouncement of ownership (hefker). It seems that everyone agrees that these laws are derived from mitzvot connected to the land. Beit Shammai claims that it can be learned from the laws of the matanot ani’im, and so one can direct the renouncement of ownership selectively, towards a particular group of people – the poor. Beit Hillel however rules that the renouncement must be universal and be considered ownerless for everyone, since they learn the laws of hefker from Shmittah.

The opinion of Beit Hillel is brought down as halacha in both the Rambam in Hilchot Nedarim () as well as in the Tur (Choshen Mishpat 273:5). The Rambam writes that “one who renounces his ownership for the poor but not for the rich has not renounced his property until he renounces it to all - [like property] in the Shmittah year.”

The idea of renouncement of ownership of the field is significantly more important than simply deciding whether the property is ownerless. The problem grows in halachic proportions since any produce that is hefker is not liable for ma’asrot. Furthermore, when discussing the opinion Beit Hillel, the Rash (in his commentary on the Mishnah) explains that any attempt to make the field hefker is null and void unless it is hefker for everybody. In other words, in a case where the field is renounced only for a percentage of the population it would remain in the owner’s possession and anyone who takes it would be considered a thief.

The Orach HaShulchan takes this theme one step further based on the Yerushalmi. What is the logic behind the renouncement to one proportion of the population? Also, is it possible for hefker to work for different divisions of the population, which do not use financial status? In the Yerushalmi Rabbi Yochanan suggests that renouncement for only Jews or only humans is acceptable, while Reish Lakish seems to hold that these conditions as similarly unacceptable. The Rambam omits any laws connected to this, and thus seems to side with Reish Lakish against the general rule of the Gemara that the halacha usually follow Rabbi Yochanan.

A final important point comes from the Tosfot who recognise the fact that Peah is exempt from the gifts to the Levi’im, but dispels any notion that this may link it to Beit Shammai’s opinion stating (Bava Kama 28a) that “the reason that Peah is exempt from ma’asrot is not due to the laws of Hefker”. They bring our Mishnah as proof of this point, and argue that Peah is exempt due to another pasuk.

Returning to the theme of the masechet, it would seem that as far as halacha is concerned we do not consider presents to the poor as being hefker rather a different subset of other unrelated laws, while the nullification of the Shmittah is a classic case of hefker with all the ramifications associated with it. This would imply that according to Beit Hillel, the owner of the field still exerts a small amount of control over the presents for the poor.

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