A class of fourth-graders was playing baseball at a public park when Chaim announced, “I found a frog.” As he was about to scoop it up, Menachem ran over, grabbed it and lifted it up. After arguing over who owned it, they approached their rebbi to determine the rightful owner. The rebbi knows that seeing an object does not constitute a kinyan, but also knows that there is a kinyan of dalet amos.

Q: Does it apply in this case?

A: In order to avoid such disputes, Chazal enacted kinyan dalet amos — a proprietary act, which grants ownership to the first one within four cubits of the lost object as though it had already entered his physical domain (C.M. 268:2). However, there are a number of limitations to this kinyan.It is not uncommon for one person to find a lost object and before he has a chance to take possession of it, another person grabs it first. The first person claims that he found it first and just because he did not lift it up that should not detract from his ownership of that object. The second person will obviously claim that finding something is meaningless until one actually takes possession of it (see Nachalas Yisrael, B.M. 10b).

This kinyan is not effective in a public domain (the halachic definition of a public domain for Shabbos is not relevant in this case  — see Harav Akiva Eiger, ibid.) or in a friend’s domain. It is effective only in public areas that do not contain crowds of people. It would seem that a public park is an area where the kinyan would be in force.

Furthermore, it is also only effective for objects that the finder would otherwise be able to lift, e.g., inanimate objects and animals and birds that cannot avoid capture, either due to injury or because one is close enough to the animal that it would not be able to avoid capture (Sema 268:17). Kinyan dalet amos is not effective for creatures that could escape (C.M. 268:4). Therefore, if the first student would have been able to lift the frog, kinyan dalet amos is in force.

It is important to note that even in circumstances in which the first student does not acquire the frog — for example, in a public domain or in someone else’s field — nevertheless the issue of ani mehapech b’chararah applies. When one person has invested effort to purchase something and a second person comes along and purchases it ahead of him, that second person is categorized as wicked (rasha).

There is a dispute whether this prohibition also applies to items that could not be acquired elsewhere, such as unique items. The classic example of this situation is finding an ownerless object in the street. We cannot tell the second person to find another one, since other lost objects are likely not available, just as we cannot tell the second person to purchase another item if the item is unique.

Although Halachah follows the lenient opinion (Rema 237:1), nevertheless, pious people (baalei nefesh) avoid taking something that someone else intended to acquire for himself (Shulchan Aruch HaRav, Hefker 10). This is especially true when it may not be considered an extraordinary opportunity as in the case of the frog, since there are likely other frogs available.

Next week iy”H we will discuss whether intent is necessary for kinyan dalet amos and whether the enactment applies to children.