Q At an event that was held to raise money for a chassan, the organizers announced that anyone who donated $200 would enter a raffle for a new shtreimel.
Before the raffle was held, Reuven, one of the donors, declared that should he win the shtreimel, he would not take it, but rather it would be hefker. Shimon, another donor, said that if he would win, the shtreimel would go to the chassan.
Are these declarations valid?
A The halachah is that a person cannot sell, gift or be makdish (consecrate for a sacred purpose) something that is not yet his (Choshen Mishpat 209:5 & 211:1).
The poskim debate whether a person can be mafkir (declare as ownerless) something that is not yet his. One approach is based on the Rambam’s comparison (Hilchos Nedarim 2:14) of a hefker declaration to a neder (vow). Based on that comparison, the Bach (Shu”t 124) writes that a person can declare something hefker even if it is not yet his, just as someone can make a neder regarding something that isn’t yet his (see Yoreh Dei’ah 204:4). He explains that the rule that a person can’t sell, gift or be makdish the item is based on the fact that he cannot effect a kinyan (acquisitional act) on something that isn’t his. When declaring something hefker, however, a person is merely withdrawing himself from owning the object, which is like making a neder to forbid himself from using it.
The Bach adds that this is why a person may be mevatel (nullify) chametz — which makes it hefker — even if he has yet to take possession of it, in which case he will not transgress the prohibition of owning chametz even when it later enters his property (cited in Pri Megadim, Eishel Avraham 441:4 & 446:1).
According to this approach, a person who declares as hefker something that is not in his possession may not renege on that decision. Now, if the item is delivered to him, and the person delivering it has taken possession on it on his behalf, the hefker takes effect immediately. Then the first person to claim it after that owns it. But if he goes to retrieve it, and he decides to claim it for himself despite his declaration, then it is his, because he can claim it from hefker just as anyone else can.
In our case, there is additional doubt as to whether Reuven’s declaring the shtreimel hefker took effect, because it was an asmachta, given that it depended on his winning the raffle. (According to the Rambam’s approach, because hefker declaration is similar to a neder, and an asmachta does not affect a neder, this is not an issue; see Choshen Mishpat 207:19 & Orach Chaim 562:13; also discussed by Rav Shlomo Kluger [Neos Deshe 2]; see Shu”t Maharam Shick, Orach Chaim 232).
The majority of poskim argue, however, that a person cannot be mafkir something that is not in his possession (Noda b’Yehuda Tinyana, Even Ha’ezer 77; Ketzos 211:4; Machaneh Ephraim, Hilchos Zechiyah Meihefker 7; see Shu”t Ateres Chachamim, Choshen Mishpat 15).
According to these poskim, Reuven’s declaration that the shtreimel will be hefker if he wins does not take effect, but a person cannot be forced to accept something against his will. Therefore, if he does not want to win the shtreimel, it does not become his, but because it does not become hefker, it remains in the possession of the original owner (see Choshen Mishpat 245:10).
In regard to Shimon’s declaration that the shtreimel would belong to the chassan if he wins, just as a person cannot be makneh something that is not in his possession, he also cannot consecrate it to hekdesh or to poor people, so his declaration does not take effect.
The poskim debate, however, whether he is obligated to keep his word anyway (Choshen Mishpat 212:7), or whether his declaration was utterly meaningless (Rema ibid.).
Had he said that if he wins a raffle, he will then give his winnings to tzedakah — in this case, the chassan — then all poskim agree that he is obligated to keep his word (ibid.).
