Q. During the summer, one of my campmates damaged something that belongs to me. I asked him to pay for the damage several times, but he responded evasively. At the end of the summer, I realized that he had left some valuable items on his shelf in the bunkhouse, so I seized them as payment for the damage.
After the summer, he approached me and said that he wanted to pay me for the damage. I told him it wasn’t necessary, because I had already taken the things he had left behind. He replied that he had left those items behind deliberately because he didn’t need them, so he was mafkir (relinquished ownership of) them. It would seem, then, that since I acquired those items from hefker, it did not settle the debt. I told him that I would accept those items as payment nonetheless, but we are curious: Had I not decided to accept them as payment, would I have a valid claim against him?
A. You are posing a fascinating halachic query, one that is actually addressed by the Poskim.
The Darkei Moshe (Choshen Mishpat 245:13, cited in Sma ibid. 18) cites the Nimukei Yosef’s ruling (Bava Basra 63b in the Rif folios) that if a borrower is mafkir an item, and his lender claims it from hefker, the borrower is no longer obligated to repay the loan (assuming the object is worth the full amount of the loan). The lender does not have the right to claim that since he obtained the borrower’s item from hefker, the loan is still outstanding. Since a lender has a lien on all of the borrower’s belongings until the loan is repaid, when the lender seized it, it automatically became a repayment of the loan.
The Acharonim (Ketzos Hachoshen ibid. 3 and Nesivos 5) challenge this interpretation of the Nimukei Yosef’s ruling. They argue that the lender should not be different from a stranger who acquires something from hefker and does not have to balance it against other financial obligations on the part of the person who was mafkir the item (see further Nesivos 275:1). The debt is therefore considered unpaid.
These Acharonim say that the Nimukei Yosef’s ruling is limited to a case in which a stranger claimed the item the borrower was mafkir. In such a case, the lender is entitled to seize the item from the person who claimed it, because he has a lien on it. (He may do so, however, only if the borrower has nothing else that he can seize as payment for his loan. [Ketzos 245:3]. There is an additional dispute as to whether this applies to loans that were given without documentation [milveh al peh]; the Taz [to Choshen Mishpat 245:10] says that it does, and the Sma[18) says that it does not.) In such a case, since the stranger has already acquired the item, and the lender has rights to it only because of his lien, he must accept it as payment for the loan.
Based on all of the above, the Nesivos (245:5) deliberates what the halachah would be if no one else claimed the item from hefker, and the lender did not know that the borrower was mafkir it, and he seized it as payment for the loan. In such a case, reasons the Nesivos, since the lender considered the loan repaid, he forfeited his rights to demand any additional repayment.
According to the Nesivos, then, your friend is not required to pay for the damages, because the items you seized are in place of payment.
But the Nesivos presents a counterargument: Since these items were hefker, they did not belong to the borrower at all, and when the lender seized them, it is akin to him seizing an item that he thought belonged to the borrower, but actually belonged to someone else. Despite his assumption that he was repaid and had forfeited his claim on the loan, we do not consider the loan repaid. The same should apply to an item seized from hefker as well. According to this approach, your friend would still be required to pay for the damage.
Some Poskim support the view that the lender claiming an object the borrower was mafkir is considered payment of the debt, explaining that just as when a stranger claims the borrower’s object from hefker, the lender may seize it due to his lien -- when he happened to have claimed it himself, we tell him to go seize the object from himself (Shu”t Lehoros Nossan, 12:143). According to this approach, you obviously have no further claim against your friend for the damages.
