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HaRav Yishai Natan –
My tenth-grade classmates and I were sitting in the yeshiva lunch room. It was my friend’s birthday, so his parents had two large hot poppers delivered to the yeshiva for him. He thought he would eat both of them, but after starting the second one, he quickly realized that it was not going to happen. He came over to my table, put the rest of the poppers down almost directly in front of me and a few of my friends, and said, “Whoever wants it can have the rest.”
One boy farther down the table yelled, “I call it!” Another boy, who was probably about ten feet away, somehow sprinted down the table and grabbed it before any of us had a chance.
The boy who called it claimed that was the first kinyan, while the boy who grabbed it claimed that picking it up was the first valid kinyan. I argued that since I was sitting closest to it, it should belong to me. We went to the menahel, and he said that maybe the food belonged to him because of kinyan hatzer. I do not think he actually wanted the poppers, but he told us to ask the Rav.
So…who gets the hot poppers?
Is Saying “I Call It” a Kinyan?
As soon as the owner said that whoever wants the food may take it, it is considered as though he made it hefker, ownerless. Whoever makes the first valid kinyan will acquire it.
The boy who yelled, “I call it,” did not make a regular kinyan. If calling out “It’s mine” or “I call it“ would be the normal and accepted minhag for acquiring something, there would be a kinyan based on the laws of situmta[1]. However, there is not a strong enough minhag to say that simply calling something makes it yours.
There are also opinions that situmta only works through an action and not through words (Rosh, Teshuvot 12:3.) Although the Mordechai, Shabbat 472, holds that words can sometimes create a valid situmta, the person calling it would still not be able to be motzi the item from the person physically holding it, since the Rosh disagrees[2]. Either way, in our case, yelling “It’s mine” is not a valid kinyan.
Does the Menahel Get It?
The menahel was referring to the laws of kinyan hatzer brought in Shulchan Aruch 268:3. A person’s property can sometimes acquire an item for him even without his knowledge. For this to happen, the item must either be something that normally comes into that property or something that the owner is expected to eventually find. In our case, both conditions would apply.
However, the menahel does not own the building. If the Rosh Yeshiva owns the building, then technically the question would apply to him. However, even the Rosh Yeshiva would not acquire the poppers through kinyan hatzer here. A hatzer only acquires an item for its owner without his knowledge when the area is protected and the item is guarded from other people taking it. A cafeteria filled with bahurim, immediately after someone announced that anyone may take the food, is certainly not considered guarded. Also, there is no reason to assume that the Rosh Yeshiva wants to acquire leftover hot poppers for himself. We can safely assume that he allows food given out to the bahurim to be acquired by them and does not expect his hatzer to acquire it for him. Therefore, neither the menahel nor the Rosh Yeshiva acquires the food through kinyan hatzer.
What About the Person Sitting Within Four Amot?
At first, it would seem that the boy who grabbed the poppers was the only person who made a valid kinyan. However, Shulchan Aruch 268:2 writes that a person can acquire an ownerless object when it comes within four amot of him. Since you were sitting within four amot of the food, perhaps your four amot should have acquired it for you before the other boy picked it up.
The problem is that you were not the only person within four amot. You said that several other boys were also sitting nearby. Even if you were closer to the food than they were, as long as they were also within four amot, you would all have equal rights to it[3].
Who Was Sitting There First?
The Netivot HaMishpat 268:1 adds an important point. If Reuven came to a place first, Shimon later came and stood near him, and only afterward an ownerless object came within four amot of both of them at the same time, Reuven acquires the object. Since Reuven’s four amot were established first, someone who comes afterward cannot share in those four amot. Therefore, if one of your friends was already sitting there before everyone else, and he wants it, he acquired the food for himself and does not need to split it with anyone.
Why Four Amot Do Not Work Here
However, in this case, none of you acquire the food through four amot. The kinyan of four amot only works in a simta, such as a side street or similar area, or at the sides of a reshut harabim. It does not work inside someone else’s private property.
Someone inside another person’s property does not have the special kinyan of four amot. Since the yeshiva lunch room is private property, none of the students can acquire the food merely because it was placed within four amot of them.
The Conclusion
The boy who called out, “I call it,” did not make a valid kinyan. The yeshiva did not acquire the food through kinyan hatzer. The students sitting nearby did not acquire it through four amot, because the kinyan of four amot does not work in someone else’s private property. Therefore, the boy who actually picked up the hot poppers made the first valid kinyan, and he gets to keep them.
[1] Situmta is a type of kinyan that works because of the accepted business custom of a place or trade. Even if the action is not one of the regular forms of kinyan mentioned by Chazal, if people commonly use that action to finalize a deal, halachah can recognize it as a valid kinyan (Shulhan Aruch 201)
[2] This discussion is also relevant to the custom of saying Mazal U’Berachah in the diamond trade. If it is a valid kinyan, then if said, neither party would be able to back out after that point.
[3] The Rama there writes that if two people are standing within four amot of an object, or an object comes within four amot of both of them, they acquire it equally and must divide it.