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HaRav Yishai Natan –
I went to the grocery store Thursday afternoon to shop for Shabbat. There was a large parking lot shared by several stores, and it was completely jam-packed. I drove around for a few minutes trying to find a parking spot. Finally, I went down one of the aisles just as someone was pulling out. I waited for him to leave the spot and then drove a little past it so I could back in.
As I began backing into the space, another driver came speeding in and parked in the spot. He clearly saw my reverse lights on and knew I was about to park there. After he got out of his car, I opened my window and told him that I was about to park there. He replied, “About” is the main word.” He wished me a “Shabbat Shalom” and continued walking.
Was this person over an issur by taking my parking spot?
Minhag
First, if there is an accepted minhag that once someone begins backing into a parking spot no one else may take it, then that minhag itself creates an issur. However, I am not sure there is enough evidence that such a practice has become an established minhag, so I cannot say with certainty that it would be assur for that reason. Let us instead examine whether this falls under the issur of Ani Mehapeh BeHararah.
Ani Mehapeh BeHararah
The Gemara (Kiddushin 59a) teaches that if someone is in the process of purchasing an item and another person comes and buys it first, the second person is called a rasha[1].
Rashi vs. Tosafot
Although the Gemara discusses a sale, Rashi maintains that this issur also applies to ownerless property (hefker). Tosafot, however, disagree. They explain that hefker items are different because they are uncommon, and we cannot tell the second person, “Go find another one somewhere else”, as opposed to something that the second person can buy, we tell him “don’t take this one from the first guy, rather go buy it somewhere else.”
Maran vs. Rama
Maran, in Shulhan Aruch (HM 237:1), writes that there are those (Tosafot) who say there is no issur of Ani Mehapeh by hefker, and there are those (Rashi) who say there is. The general rule in Maran is yesh ve’yesh halachah ke’yesh batra—when he presents two opinions introduced by “there are those who say,” the halachah follows the second opinion. In this case, that would be Rashi. The Rama, however, says that the halacha follows Tosafot.
A parking space is hefker. Therefore, according to Tosafot and the Rama, there would be no issur of Ani Mehapeh. According to Rashi and Maran, there would be.
Rama vs. Maran
In truth, however, the halacha may turn out to be the opposite. Although Rashi holds that the issur still applies to hefker, he also limits the prohibition to a poor person. If the first person is a regular person who has the means to obtain another one elsewhere, we tell him to let the second person have it, since he never made a kinyan and can simply obtain another one. According to this reasoning, Rashi would say there is no issur in the case of a parking space because you can find another spot.
According to Tosafot, however, there may actually be an issur. The reason Tosafot exempt hefker is because such opportunities are rare, so we cannot tell the second person to find another one. Parking spaces, however, are not rare. It may take extra time to find another one, and it may be farther away, but it is certainly possible and common. Therefore, Tosafot would say that Ani Mehapeh does apply, making it assur to take the spot.
We therefore begin with what appears to be Rashi and Maran prohibiting him from taking the spot, while Tosafot and the Rama permit it, yet after a closer look, the positions seem to reverse. Rashi and Maran would permit it, while Tosafot and the Rama would say it is assur.
What Does Maran Really Hold?
Even so, the opinion of Maran is not so simple. In the next se’if (237:2), there are those who understand that Maran retracted and accepted the view of Tosafot. He rules that one may hire away another person’s teacher. The Sma explains that this is mutar because it is comparable to hefker. Since it is difficult to find a good teacher, we do not tell someone to look elsewhere, which follows the reasoning of Tosafot.
The Aruch HaShulhan, however, explains that Maran did not retract. Rather, that case is different because it involves a mitzvah. When a mitzvah is involved, there is no issur of Ani Mehapech.
If Maran indeed accepted the reasoning of Tosafot, then even according to Maran, taking someone else’s parking space would be assur.
No Issur Even According to Tosafot
There are, however, two possible reasons why the issur may not apply in this case according to Tosafot. First, parking spaces are available to everyone searching for one, and many drivers are actively looking for them at the same time[2]. The Ramban writes that if both parties are mehapech in the same time, the issur of Ani Mehapeh does not apply.
Second, according to Tosafot, who hold that there is no issur by hefker, this may be because Hazal only instituted the issur when there is a pesikat damim—an agreed-upon price. Since there is no pesikat damim by hefker, the issur does not apply. Likewise, since this type of parking spot is not something people charge for, it could be that the issur was never instituted in such a case[3].
Conclusion
If there is an accepted minhag that one may not take a parking spot when another driver has already begun backing into it, then it would certainly be an issur to take the space.
If there is no established minhag, it is quite possible that there is no issur of Ani Mehapeh. This may be because Maran might hold like Rashi that there is no issur when the first person has the means to obtain another one elsewhere, or because both drivers are equally pursuing the parking spot, or because a parking space is not something people charge for and there is no pesikat damim according to Tosafot.
[1] The Gemara relates that Rav Gidel was negotiating to purchase a piece of land but had not yet made a kinyan. Rav Abba, unaware that Rav Gidel was involved, purchased it for himself. After learning what had happened, Rav Abba himself compared his action to taking bread away from a poor person who was trying to obtain it, saying that such a person is called a rasha. Nevertheless, Rav Abba did not want to sell the land because it was the first property he had ever purchased, and selling one’s first property was considered a bad siman. He offered to give it to Rav Gidel as a gift, but Rav Gidel refused to accept a gift. As a result, the land remained unused and became known as the “Land of the Rabbanan.”
[2] The Gemara discusses a poor person who jumped onto harvested wheat designated for the poor but had not yet lifted it to make a kinyan. Another poor person may take it and is not called a rasha. The Ramban explains that this is because everyone is trying to obtain the wheat. Since many people are pursuing the same item, the issur of Ani Mehapeh does not apply. However, Tosafot might not agree to this explanation, since he answers the reason the second person can take it is because it is hefker.
[3] Based on Hidusheh Hatam Sofer on Shulhan Aruch. Furthermore, we only find the issur of Ani Mehapeh regarding items that are capable of being acquired through a kinyan, where the first person simply has not yet completed the acquisition. A parking space cannot actually be acquired. It merely grants temporary permission to use it. Therefore, it is possible that the issur of Ani Mehapeh does not apply to a temporary right of usage. I have not found support to this concept.