Outline:
I [A - C follows the approach that we took in the previous issues when we discussed saving a spot you dug out for yourself from the snow and would follow an understanding based on a Responsum from my Rebbi Rav Chaim Yisroel Belsky zt"l]
A- A may acquire an object available for anyone to take - a davar shel hefker - on B's behalf, even if by doing so it will prevent others from gaining.
B- Sha"ch and Ketzos permit Creditor A to grab for a Creditor B even beyond A's rightful share - from a debtor with limited funds even at the expense of fellow creditors. [Though Nesivos forbids it.]
C-
Sha"ch and Korban Nesanel permit
A to grab for Creditor
B at the expense of other creditors even if
A is not a creditor in his/her own right, if
B hires A to work on
B's behalf.
*
II My Rebbi Dayan Chaim Kohn Shlita
D- In a modern city structure, no other car owner is considered a creditor who can interfere with your ability to use the spot and save it for someone else in accordance with civic law [Dayan Chaim Kohn].
Background
We will first highlight some differences between
I a shliach(an unpaid agent)
II a paid employee (po'el)
III a self-declared volunteer (tofes)
Then, we will raise two dilemmas and identify circumstances under which the three can function to benefit one person at the expense of someone else.
I Shliach
A may generally appoint B as an "unpaid agent" or shliach to perform a legal act whereby its result will be attributed to A
[Choshen Mishpat 182].
Note: Agency is affected by A appointing B to execute the task. A may choose to appoint B to affect a beneficial result or a detrimental result on A's behalf.
Limitations:
To affect agency; both A and B must have the requisite legal mental capacity (usually beginning at the Halachic age of an adult: 12 for females, 13 for males) [Choshen Mishpat 188: 2].
Generally, albeit with exceptions, if A appoints B as an agent to perform an act which is a sin for B to do, the result is not legally attributed to A [Choshen Mishpat 182].
Let's Contrast an unpaid agent with an employee:
A may hire B to perform a legal act whereby its result will be attributed to A.
In addition to the result; the actions of an employee or like the actions of the employer.
As such, according to Nesivos HaMishpat, an employee may perform an act of acquisition, like lifting an object (hagba'ha) or using the object (chazaka), even if the employee does not have the requisite legal mental capacity to generally perform legal actions.
However, the domain of an employee is not like the domain of the employer.
Thus, an employee (B) who does not have the requisite legal mental capacity to perform legal actions, cannot perform means of acquisition like pulling the object into (B)'s domain (meshicha) on A's
behalf [Nesivos HaMishpat 188: 1].
If A hires B to perform an act which is a sin for B to do, is the result is legally attributed to A?
No
[Choshen Mishpat Pischei Teshuva 182: 2, Maharshal 182: 2]
III Self- Declared Volunteer - תופס לבעל חוב
Even without having been expressly appointed as an agent, generally, A may decide to become a Self- Declared Volunteer and unilaterally benefit B by acquiring an owner-less object on B's behalf [Choshen Mishpat 269: 1] see exceptions below.
Examples include
1) If A finds an owner-less object - that is an object which anyone has a right to take for himself/herself, - A can unilaterally decide to pick it up on behalf of
B - and it works!
[Choshen Mishpat 269: 1] .
2) A owes $100 to B. Were a phenomenon to exist where A is at risk of losing his/her money soon whereby B is at jeopardy of never getting paid, B may grab $100 from A for himself/herself (provided that A agrees that he/she owes B. Similarly, C may unilaterally decide to grab $100 from A for B, even without B appointing C to do so [Choshen Mishpat 105: 4].
Exceptions:
The ability to voluntarily acquire an owner-less object on behalf of another becomes severely limited if doing so directly causes others a loss. This happens when others have an otherwise legitimate claim to the object as well.
When the Self- Declared Volunteer has the ability to acquire the owner-less object himself/herself the Self- Declared Volunteer can do so on behalf of his/her fellow even when doing so directly causes others a loss.
Otherwise, the Self- Declared Volunteer cannot act with "vigilantism" and acquire the object for his/her friend while directly causing others a loss [Pischei Teshuva C.M. 105: 3].
Examples:
A owes B, C, D, E, & F $100 each. A has $200 presently available. First come first serve.
Since B may claim $100 for himself/herself he/she may choose to claim $100 for either C, D, E, or F.
However, "G" who has no claim to any $100 may not choose to act on behalf of B, C, D, E, or F; as benefiting one causes the others a loss.
Moreover; B, C, D, E, or F; may not even appoint G as an unpaid agent, a shliach to grab $100 on any one of their behalf, whereby doing so would directly cause the other creditors a loss.
(Merely preventing others from gaining, like when A picks up an owner-less find on B's behalf is very different than A causing another creditor a loss by being a vigilante and grabbing the entire $100 for B, at C's expense).
Dilemma 1
What if A owes B $100 and owes C $200. May B take $200 for C?
On one hand B has a right to act, on the other hand, isn't his right limited to $100?
Sm"a, Nesivos: No. B may only "gift" to
C up to the $100 that
A owes
B
[Choshen Mishpat 105: 3].
One Creditor grabbing more than his/her share for a fellow Creditor
|
Yes
|
No
|
Sha"ch
|
Sm"a
|
Ketzos
|
Nesivos
|
Shach, Ketzos HaChoshen: Yes. Since B has a right to grab for himself/herself, B can act on C's behalf even beyond B's own stake in the pie [Choshen Mishpat 105: 2].
Dilemma 2:
A Paid Vigilante at the Expense of other Creditors
May, B, C, D, E, or F; hire G to grab $100 on any one of their behalf, if doing so would directly cause the other creditors a loss?
A Paid Vigilante at the Expense of other Creditors
|
Yes
|
No
|
Sha"ch
|
Tumim
|
Korban Nesanel
|
Nesivos
|
Sha"ch maintains yes. A po'el functions like an extension of the boss [Choshen Mishpat 105: 1].
Korban Nesanel maintains yes. G now has sufficient stake in the game to allow him/her to act on the remaining creditors expense.
Nesivos [Choshen Mishpat 105: 2], Tumim maintain no. Only one who has a right to grab for himself can act on behalf of one on the remaining creditors expense].
(All agree though, that A the debtor - may enlist G to acquire $100 for B, C, D, E, or F) [Ketzos HaChoshen 105: 3].
A can prohibit B from benefiting from A's property.
Similarly, A can prohibit B from benefiting from A's partnership in a property
[Yoreh Deah 224: 1].
Examples theoretically include the shared space in condominiums, planned neighborhoods or gated communities. In Talmudic times, many small towns were run like gated communities whereby each citizen owned a significant percentage of the shared municipal property.
Then there were properties that were completely public; belonging to everyone - yet no-one specifically can claim anything significant; like the Temple Mt., water wells dug along the roads leading to Jerusalem which provided drinking water for the pilgrims en route to the Temple.
A's degree of ownership thereof is so minute that A has no ability to "forbid B" to benefit from A's "portion" of the public well [Rambam Peirush Hamishnayos Nedarim 5:4].
Dayan Chaim Kohn Shlita rules that our modern cities are similar to the public wells of yore.
Barring local law and custom, one citizen cannot forbid others from benefiting from a specific area of the city.
Ramifications of this ruling include but are not limited to:
1) Ani Hamenakef b'rosh Hazayis (see next section below from last week).
Normally, if A extends significant effort, puts his/her life in somewhat of a danger or spends significant resources to obtain an article, position, or usage of a property, B is forbidden to interfere with A's efforts and take the article, position or property for himself/herself as long as A is still interested in it.
According to my Rebbi Dayan Kohn Shlita, while A can lay claim on owner-less property, A cannot lay such claim on modern city property. Dayan Kohn maintains that the theorem of Ani Hamenakef b'rosh Hazayis would not support a claim to a spot you worked hard to dig out from the snow.
Note: In Issue 227, we argued that the theorem of Ani Hamenakef b'rosh Hazayis would support a claim to a spot you worked hard to dig out from the snow. This is in accordance with a Responsum from my Rebbi Rav Chaim Yisroel Belsky, Zt"l.
2) Tofes leba'al chov b'makom shechav le'acherim
Normally, A's ability to reserve an opportunity of which B has a right towards, has limitations, if reserving it for B would be at C's expense. In other words, C's right towards the article poses limitations on A's abilities to acquire it.
According to Dayan Kohn, when the article/land of contention is of modern city property, meaning that it belongs to everyone and no-one, C's right to use it is not a significant enough degree of "right of usage/ownership" to pose limitations on A's ability to reserve the spot for B.
As such, as long as there is no local law or accepted custom against such activity and doing so will not cause a Chillul Hashem, A may reserve a spot for B by taking up two spots.
How do we view the right to park in a free municipal parking zone?
* If we view it as though the space were like a "find" - a davar shel hefker - available to anyone who wishes to take it for his/her use, then just like A may pick up a find for B, A may save B a spot even if by doing so, A will be preventing others from attaining it. A is not causing the other car owners a loss. A is simply preventing them from gaining.
* If we view it as though every car owner has a claim to a spot, similar to numerous creditors against a debtor with limited funds, A may obviously park his/her own car in a spot for himself/herself.
As A has a right to a spot, according to Sha"ch and Ketzos, A would be permitted to save a spot for B as well as saving for himself/herself, at the expense of others, even though by doing so, A is grabbing more than his/share.
And if B would even pay A for the service, we would have additional premise (Sh"ach and Korban Nesanel) to permit it.
* Now, if someone were to argue that the Nesivos might still forbid A to save an additional spot for B at the expense of other car owners who have a legitimate claim to the spots, and according to the Nesivos, B paying A for doing so does not improve the situation, Dayan Kohn would still permit saving a spot for your married children by "parking in two spots" because in truth, the availability to use parking spots is not considered a davar shel hefker, it is owned by everyone but no-one and no car owner is considered the City's creditor whereby he/she could interfere with any other driver grabbing a spot for a friend as long as such behavior complies with local municipal law and custom.
In terms of earning claim to a spot for working hard to dig it out from the snow, my Rebbi Rav Belsky zt"l maintains that the efforts earn you a claim, while my Rebbi Dayan Chaim Kohn maintains that the efforts do not earn you a claim to the spot.
Nevertheless, Dayan Kohn, like Rav Belsky writes that in a locale like in Chicago where the public expects you to respect people's efforts, it would be a Chillul Hashem to ignore the digger's efforts.
Of course, all of this is true only if such behavior complies with local accepted custom and does not create a Chillul Hashem.