Q&A: Acquisition of Four Cubits (Oshri Verhaftig)
Acquisition of Four Cubits (Oshri Verhaftig)
Question
Hello Rabbi (truthfully, email is more convenient for me).
Regarding acquisition through four cubits, the Machaneh Chaim in Choshen Mishpat, part 2, siman 41, infers from Rashi’s wording that the basis of the acquisition is that no one else has the right to take the object, and therefore there is no need for an active act of acquisition. So too, if a person were to prohibit his property for benefit to the entire world except for Reuven, and then declare it ownerless, Reuven would not need an act of acquisition, since he is the only one who can use the object. And similarly with Adam, who was alone; that is how he understands the midrash that Rashi cites at the beginning of Leviticus.
In contrast, in the book Beit Aharon on Bava Metzia there, he raises this principle, but then qualifies it: the meaning of acquisition through four cubits is that no one else has the right to take the object, but nevertheless the buyer still has to perform an act of acquisition such as lifting it in order to acquire it.
I think that according to the Machaneh Chaim, an act of acquisition is needed only when there are other contenders for the object, so I need to demonstrate ownership. If I am the only person in the world, then everything automatically belongs to me and there is no one to whom I need to demonstrate ownership. But Beit Aharon holds that even if I am the only one, true, no one will interfere with my acquiring the object, but I still have to actually acquire it. What it seems to me is that according to Beit Aharon, a person still has to acquire the object from Heaven’s domain; the world does not automatically belong to you, and you need to do something in order for things to become yours.
Is that correct? How does the Rabbi explain the dispute?
Thank you,
Oshri.
Answer
According to that, is something from which benefit is prohibited not in its owner’s possession? As is well known, the medieval authorities (Rishonim) disagreed about this, and on the face of it, it seems that it is still in his possession. Admittedly, one can distinguish between a prohibition and a legal right, and this is not the place to go into it. But if so, when a person prohibits something for benefit to the world, that has no implication for our issue.
I do not think that an ownerless object is in Heaven’s domain, because if that were so, misuse of consecrated property would apply to it, and it would go to the Temple treasury. The dispute seems to me to be about whether there is something in acquisition beyond the practical implications for use (it is permitted to him and forbidden for others to use). If acquisition is a factual legal effect, and the implications are only derived from it, then we require an act of acquisition. But if the implications themselves are the acquisition, then there is no need for an act of acquisition. I wrote about this in my article “What Is a Legal Effect,” and there I argued for the first view. I also commented there about prohibitions of benefit.