By Rabbi Meir Orlian
Dovid looked at his bookcase. “I have no room left for new sefarim!” he said, shaking his head. “I’ve got to free up some space.”
Over the weekend, Dovid selected all the doubles and old sefarim he did not use and brought them to his yeshivah. He put them in his classroom with a note: “Hefker” (ownerless), and told his friends that the sefarim were hefker and could be taken. During the course of the week, most of the sefarim were taken. An old Chumash remained, one that Dovid had received many years before from his grandparents.
Toward the end of the week, Dovid had a change of heart. “I want to keep the Chumash from my grandparents,” he said to his chavrusa. “I’d like to go get it now from the room.”
“There’s a shiur going on,” said his chavrusa. “You’ll have to wait until it finishes.”
Dovid turned to the other people sitting at his table. “I’m revoking my hefker of the Chumash,” he announced. “I want to keep it.”
When the shiur finished, Dovid went to get the Chumash. Eli was exiting the room–carrying the Chumash!
“Excuse me, but that Chumash is mine,” said Dovid.
“What do you mean?” asked Eli, bewildered. “There was a sign that it was hefker.”
“That is true,” said Dovid. “I meant to give it away but just recanted.”
“You can’t recant now,” said Eli. “The Chumash is already mine.”
“I didn’t recant now,” said Dovid. “I have witnesses that I retracted my hefker half an hour ago but didn’t want to disturb the shiur.”
“Does that help?” asked Eli. “Once you renounced ownership, that’s it!”
“If I made the sefarim hefker verbally, why can’t I undo the hefker verbally?” responded Dovid. “You hadn’t taken the Chumash yet when I decided that I still wanted it, so I have first claim.”
“I’m happy to give the Chumash back,” said Eli, “but I don’t think that you’re right. Let’s ask Rabbi Dayan!”
Dovid and Eli went over to Rabbi Dayan. “I made my Chumash hefker at the beginning of the week, but recanted before Eli took it,” Dovid said. “Does he have to return it or is it his?”
“When a person makes something hefker, he cannot undo his hefker verbally,” answered Rabbi Dayan. “He cannot prevent another person from taking the item; it already left his possession” (C.M. 273:2).
“But if no one took the Chumash yet,” asked Dovid, “why shouldn’t I be able to recant?”
“The Rambam, based on the Gemara (Nedarim 44a—b), writes that hefker is like a neder (vow) and therefore one is not allowed to recant,” explained Rabbi Dayan. “Some authorities understand, based on this wording, that the hefker item doesn’t actually leave your possession until someone takes it, but you are not allowed to recant and exclude others from taking it. However, most authorities assume that the hefker item already left your possession; you disowned it and disassociated yourself from that property” (see Ketzos Hachoshen and Miluei Choshen 273:1).
“Does it make a difference when I changed my mind?” asked Dovid. “What if I had recanted the same day?”
“It does not make a difference,” replied Rabbi Dayan. “You can only recant toch k’dei dibbur (within a second or two), as with other transactions. (Machaneh Ephraim, Zechiyah Meihefker #8). The Gemara mentions, though, that a person who made his field hefker can recant for three days, on account of a special consideration of terumah. The Rambam and Shulchan Aruch (C.M. 273:9) cite this ruling. The Sma (273:13) notes that the Rosh extends this three-day period to other hefker items as well, but clarifies elsewhere (commentary to the Tur, Drishah 273:3) that the Rosh rejects this opinion entirely and maintains that even regarding a field one cannot recant.”
“Is there any way I could recover the Chumash for myself?” asked Dovid.
“Once an item is made hefker, anyone can take it, including the person who made it hefker,” replied Rabbi Dayan. “You have to make a new kinyan (act of acquisition), just like anyone else” (C.M. 273:4).
From The BHI Hotline: Plumber’s Damage
Q. A plumber came to my house to unclog a drain and in the process broke one of the pipes, which had to be replaced. I contacted another plumber who informed me that the first plumber was not negligent and there are times when unclogging a drain damages a connected pipe. Halachically, is the first plumber considered a mazik (damager) who must pay for the damage he caused? Am I required to pay him to repair the broken pipe? The plumber replaced the damaged pipe at his own expense. If he is not liable, should I tell him so, since he paid for the new pipe because he thinks he is liable?
A. The liability of a craftsman who inadvertently damages property in the course of his work (e.g., a shochet who inadvertently makes the animal a treifah) depends on his level of expertise and whether he was paid. If he is not an expert he is liable, but if he is an expert he is exempt. If, however, he was paid for the job he is liable (C.M. 306:4). There are two approaches to explain why an unpaid expert is exempt from liability notwithstanding the fact that generally a person is liable for damages even when inflicted unintentionally.
One explanation is that the damage is considered oness (due to circumstances beyond his control). Accordingly, if it is determined that with greater caution the damage could have been avoided, he is liable (Tosafos, B.K. 27b, d.h. v’od). Alternatively, he is exempt because he had permission to use the owner’s property and he was not negligent (Ramban, B.M. 82).
There are also two explanations why a craftsman who is paid is liable. A paid craftsman is assigned the liability of a shomer sachar (paid custodian). Consequently, if he damaged land he would be exempt since custodianship does not apply to land (Avnei Nezer, C.M. 19 and Chazon Ish, B.K. 11:21). Others explain that he is liable as a mazik and thus does not qualify for a custodian’s exemptions (Imrei Binah 30).
In your case, since the plumber could not have exercised greater caution, he is exempt even though he was paid. Even according to the view that a paid craftsman is liable as a mazik, the plumber is exempt, since he was hired to unclog the drain and the damage that resulted from the repair was beyond his control to prevent. It is considered as though it was your bad mazal that caused the damage.
Nevertheless, when the plumber decided to fix the broken pipe at his own expense, there is no reason to believe that it was because he thought he was halachically liable. It was done to maintain his reputation of being reliable and to establish good customer relations. If he did not want to pay he would have inquired from a rav whether he was liable or not. It is not even necessary to contact the plumber to inform him that halachically he is exempt, since that communication will diminish his sense that making the repair was the proper thing for him to do (see Meishiv B’Halachah 26).
(Patents vs. Copyrights)
Q. Can I imitate and sell the product (food, electronic item, etc.) of another manufacturer?
A. While many halachic authorities recognize ownership of intellectual property and prohibit copying the writings or musical creations of others, the practice is to imitate products of other manufacturers (that are not patented).
This distinction exists legally as well. Books have automatic copyright protection for 70 years after the author’s death, whereas manufacturers must prove that a product is truly a new creation and register for a patent, which lasts only 20 years.
What is the difference? It is prohibited to reproduce a creation by simply copying its result (book, disc, or program), but to imitate and recreate it through one’s own efforts is allowed. There is public interest that new products become public domain to encourage competition and improvements, whereas public interest is not to copy books, but to encourage new works.
Most new products are adaptations of existing ideas, so they cannot be considered the manufacturer’s “intellectual creation” in order to grant him ownership of that variation. However, to mimic the packaging of the original product and profit from its reputation is prohibited (Emek Hamishpat, Zechuyos Yotzrim, Intro. 9:1—10; ch. 14:133). v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or eâ€‘mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an eâ€‘mail to firstname.lastname@example.org.
By Rabbi Meir Orlian