Draft:Hefker

Hefker is ownerless property under rabbinic law. Property can be made ownerless by the formal renunciation of its owner or by an act of the court (as shown in Giṭtin 36b). Even absent such an action, property will become ownerless if the owner was a proselyte, a convert to Judaism, who dies with no Jewish heirs (as seen in Bava Batra 149a).

Intrinsic hefker

Another kind of property such as seas, rivers, and deserts, appear to be intrinsically ownerless and thereby are also categorized as hefḳer. Similarly, hefker includes the trees of the forest, fish in the sea, and birds of the wilderness. This legal presupposition can be seen in the Shulchan Aruch (Ḥoshen Mishpaṭ, 273-274, with the gloss by Moses Isserles). This natural ownerless quality is reflected by the Talmudic sugya on ten ancient laws that are said to be ordinances by Joshua upon entering the land of Canaan (see Bava Kamma 81a).

The ownerless aspect of natural formations only applies to the property claims of Jews, or Christians, but not necessarily to kings and royalty

Renunciation

The renunciation of ownership in property, whether movable or immovable, in order to be valid must be made in the presence of three men (Nedarim 45a). The formula of such a renunciation is very simple: "This my property shall be hefḳer." If no one takes possession of the property during the first three days, the previous owner may retract his original statement, but not after that, although he can always acquire possession of it in the same manner as any one else (Nedarim 44a).

The renunciation is valid only when made in general terms, not when it is declared hefḳer only to a certain class and not to another class, as when one declares it hefḳer for the poor and not for the rich (Peah vi. 1; Yer. Peah vi. 1; B. M. 30b; comp. "Noda' Biyehuda," series ii., to Yoreh De'ah, 154). As to whether property is legally hefḳer if one or two individuals have been specifically excepted by the owner, compare "Naḥalat Ẓebi" to Ḥoshen Mishpaṭ, 20, 1.

Acquisition of hefker

Hefker, of various types, is acquired by the first person who cares to take possession of it.

With a few exceptions, the manner of acquiring is the same in case of hefḳer as in other cases (see Alienation and Acquisition).

While usufructuary possession for a period of time is sufficient to establish a claim to real estate when the claim is that it was sold or given away (see Ḥazaḳah), such possession is not sufficient in the case of hefḳer, where possession must consist of actual acquisition of the object (B. B. 54a). Painting one portion of a wall in a house, or plowing a field with the intention of taking possession of it, is sufficient ("Yad," Nedarim, ii.; Ḥoshen Mishpaṭ, 275).

All the poor-laws that pertain to land are disregarded in the case of hefḳer property. If, however, the previous owner takes possession of it again, he is obliged to observe all those laws, except that of separating the tithes (ma'aser at Nedarim. 44a). One who has acquired possession of an ownerless ox need not make restitution for the injuries the ox had committed before he acquired it (B. Ḳ. 13b; Ḥoshen Mishpaṭ, 406, 2, 3).

See Inheritance; Poor Laws; Proselytes.