Part I
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 Rebbi for a ruling.
The Rebbi told them that although just seeing the frog did not give the first boy the rights to it, it is still rightfully his because Chazal established a kinyan of dalet amos, and the frog was within that range of the first boy.
Was the Rebbi correct?
A. Chazal were concerned that this type of dispute would be quite common — one person would be first to spot a metziah (discovered object), and another would grab it before the first person could lift it. They therefore established that the first person within four amos (cubits) of the metziah has the rights to claim it, even if he didn’t make a kinyan hagbahah by lifting it (Shulchan Aruch, Choshen Mishpat 268:2; see Nachlas Yisrael, Bava Metzia 10b). Chazal considered the four amos of a person’s proximity akin to his chatzer (courtyard), which automatically takes possession on his behalf of anything that is in it.
Now, a kinyan dalet amos does not apply in a bustling public thoroughfare (the delineation of what constitutes such a crowded area is distinct from the delineation of a reshus harabbim in regard to Hilchos Shabbos — see Hagahos Rabi Akiva Eiger ibid.) nor in another person’s private property. This type of kinyan would apply only at the sides of a public thoroughfare or on a quiet side street. It would seem that a public park qualifies as such a space (see Avnei Milu’im 30:8), and the first child should therefore have the rights to the frog.
We must consider another factor, however: A kinyan dalet amos is effective only if the first person is physically able to lift the object, and would have done so had the other person not grabbed it. This is true for inanimate objects and even for animals or birds, but only if the first person who saw it is close enough to the creature that it cannot escape (Sma 268:17). It is not effective if the metziah was a creature that could escape (Choshen Mishpat 268:4).
In this case, then, kinyan dalet amos applies only if the first boy could have lifted the frog.
It is important to note that even in circumstances in which the first boy does not acquire the frog — for example, in a public domain or in someone else’s field —the principle of ani hamehapecahb’chararah may nevertheless apply. This halachah applies when one person is attempting to buy something, and someone else inserts himself and buys it first. Chazal deemed such a person a rasha (wicked person).
The Poskim debate whether this concept applies to someone attempting to acquire a metziah, or whether, since it is not so common to find such an object, perhaps we allow anyone to acquire it, not only the first person who attempted to do so. Although the Rema (237:1) rules that ani hamehapech b’chararah does not apply here, and anyone may acquire a metziah, a baal nefesh (spiritually attuned person) should not acquire a metziah if someone else is already trying to acquire it (Shulchan Aruch Harav, Hilchos Hefker 10).
Furthermore, since frogs are commonly found in parks, and the second boy can find another frog, it is best for him to allow the first boy to take it.
In the next issue we will discuss whether a person has to intend to acquire something in order for a kinyan dalet amos to be effective, and whether a minor can make this kinyan, and ultimately discover that the first boy was unable to make a kinyan dalet amos.
