Q. A class of fourth graders was playing in a public park, and one boy exclaimed, “I found a frog!” As he was about to scoop it up, a different boy ran over and snatched it. They got into an argument over who actually has the rights to it, and when they could not resolve the matter between themselves, they approached their counselor for a ruling.
The counselor told them that since Chazal established a kinyan of dalet amos, and the frog was within that range of the first boy, it belonged to him.
Was the counselor correct?
A. In the previous issue, we discussed the basics of a kinyan dalet amos, which enables a person to acquire any item that is within his four amos. Based on this kinyan, we concluded that the first boy acquired the frog.
This week, however, we will address two factors specific to this case that will change the outcome:
- Is a minor able to acquire things through a kinyan dalet amos?
- Does this kinyan require kavanah (intent)?
The poskim debate whether a minor who finds an object and lifts it acquires it. Some say that if when the child is given a stone he discards it, and when he is given a nut he keeps it, then he is considered mature enough to acquire the object he found, even on a d’Oraysa (Torah) level (Shach 243:6). But the majority of poskim rule that he does not acquire it. They hold that only when an adult intends to be makneh (transfer ownership) to the minor, the child would acquire it on a Torah level (Rema 243:9, with Ketzos and Nesivos).
Nevertheless, Chazal said that because of darchei shalom (to keep the peace), a person may not take a metziah (discovered object) that a child has already lifted (ibid. 270:1).
This is only true, however, if a child tried to acquire the discovered object by lifting it. But if a minor intended to make a kinyan dalet amos, the Mechaber (268:4) rules that a girl may acquire it, because the Torah gave her the right to acquire a get (divorce document) by accepting it in her hand or through her chatzer. The Rema (243:23) argues that even those kinyanim are limited to a girl who is an orphan (cf. Shach ibid. 11 and Nesivos 14).
Even the Mechaber agrees that a boy cannot acquire objects through a kinyan dalet amos, because the Torah did not give a boy the power to effect a kinyan chatzer, upon which the kinyan dalet amos is based (268:4), and even darchei shalom does not apply if he tried to acquire it through kinyan dalet amos (as implied by Shulchan Aruch HaRav, Hilchos Hefker 8; see Pis’chei Choshen, Aveidah 9, note 65). It would seem, then, that the counselor’s determination that the first boy, who is a minor, acquired the frog through kinyan dalet amos was wrong.
Another factor to consider is whether a kinyan dalet amos requires intent. If a person is unaware of this kinyan, and he comes within four amos of something he wants to acquire, does it become his before he lifts it? According to many poskim, he does not acquire it (Pis’chei Teshuvah 198:9, citing Mishneh L’Melech, Hilchos Zechiyah 2:9, and 288:1 citing Shu”t R’ Akiva Eiger 37).
Halachah differentiates between a person who throws himself on a metziah with intent to acquire it — in which case, although throwing himself on it is not a kinyan, he does acquire it through kinyan dalet amos (ibid. 268:1) — and someone who sees a metziah and intends to acquire it by falling on it, but someone else snatches it first, in which case the second person acquires it and the first one does not acquire it through kinyan dalet amos.
In the first case, although that person does not know the halachos of kinyanim, since he is trying to acquire the object at the moment when it is in his dalet amos, he does acquire it through kinyan dalet amos. In the second case, since he didn’t know that he could acquire it through kinyan dalet amos, he had no intention of acquiring it until he threw himself on it, so the kinyan dalet amos does not work for him. Similarly, in our case, since the first boy didn’t know about the kinyan dalet amos, and he only intended to acquire the frog when lifting it, the kinyan dalet amos does not work for him.
Another point: Even according to the opinions that kinyan dalet amos, like a kinyan chatzer, works regardless of whether the person has intent (Taz 268; see Shu”t Rivash 345), that’s true only if his lack of intent is due to his not being aware that the object was within his dalet amos. But if he knows that the object is there, but he did not intend to acquire it, some say that he does not acquire it through kinyan chatzer or kinyan dalet amos (see Tosafos, Bava Basra 54a; Nesivos 275:2; Shu”t Shem Aryeh, Choshen Mishpat 22; Imrei Yosher 2:72).
Ultimately, the frog belongs to the second boy who snatched it, but the halachos of ani hamehapech would apply, as discussed in the previous essay.
