Yankel drove with his wife to the yeshiva’s annual dinner. “I hope we’ll be able to find parking,” she said.
When they arrived, Yankel circled the block twice looking for parking, but had no luck. “I’ll wait on the block until a spot opens,” he said. He pulled up by a driveway in the middle of the block and waited there.
Ten minutes later, a car toward the front of the block started to pull out. “There’s a spot!” his wife said excitedly.
Yankel waited for the car to pass and then began backing up to the spot. While he was reversing, he saw another car round the corner. The other car stopped at the vacated spot and started parking.
Yankel got out. “I already claimed that spot,” he said to the driver.
“What do you mean you claimed the spot?” the man responded. “I got here first.”
“I’ve been waiting on the block for ten minutes for a spot to vacate,” Yankel said to the man. “I claimed the spot when I saw the car pulling out.”
“I’m also looking for a spot,” said the man. “What makes this spot yours more than mine?”
“I’ve been waiting on this block the whole time,” said Yankel, “You weren’t here and just came.”
“What’s the difference?” said the man, unimpressed. “Since when can you lay a claim to an entire block? You don’t own the street!”
“I saw the car pulling out first, though,” said Yankel. “I had my eyes on the spot before you.”
“That’s your tough luck,” said the man. “Sometimes, sitting on the block works better; sometimes, circling works better. I got to the spot first.”
“But I was already backing up the block and heading to the spot,” Yankel protested, “even before you turned the corner into the street!”
“Backing up toward the spot doesn’t make it yours,” said the man. “I don’t see why I should move.”
Just then, Yankel noticed Rabbi Dayan walking by with his family. “That’s Rabbi Dayan,” he said to the man. “Let’s ask him!”
“Hello, Rabbi Dayan,” Yankel said. “I’m glad you chanced by. We’re having a disagreement over this parking spot.”
“What about it?” asked Rabbi Dayan.
“I was waiting on the block for ten minutes for a spot to open,” Yankel told Rabbi Dayan. “I was already backing up to the spot when this man turned the corner and started pulling in. Who’s entitled to the spot?”
“This relates to a concept known as ani hamehapech bachara,” replied Rabbi Dayan. “If a person is scavenging for a loaf of bread and someone else comes and grabs it – the intruder is called a rasha, wicked.” (Kiddushin 59a)
“So it seems that I’m entitled to the spot,” said Yankel.
“There is a well-known dispute between Rashi and Rabbeinu Tam regarding this concept,” continued Rabbi Dayan. “Rashi explains that it applies also when the person was scavenging after a loaf that was ownerless [hefker]. Rabbeinu Tam, however, cites a number of sources indicating that ani hamehapech does not apply to something hefker, but only to something offered for sale or rent.”
“Why should there be a difference?” asked the man.
“A rental or sale item can be acquired elsewhere, as well,” explained Rabbi Dayan, “Therefore it is immoral for the second person to intrude upon the efforts of the first person. However, he may not be able to find a hefker item elsewhere, so he does not have to forego this opportunity in deference to the first person.”
“Whom do we rule like?” asked Yankel.
“The Shulchan Aruch cites both opinions,” answered Rabbi Dayan. “The Rama sides with the opinion of Rabbeinu Tam that ani hamehapech does not apply to a hefker item.” (C.M. 237:1)
“Is a parking spot considered hefker or a rental?” asked the other man.
“If parking is readily available on a nearby street, it is similar to rental,” replied Rabbi Dayan. However, if parking is difficult to find, it is comparable to hefker, even if there is a parking meter or charge. Therefore, although Yankel waited on the block and was heading toward the spot, he cannot repel the intruder.”
“Nonetheless, a God-fearing person should consider Rashi’s opinion,” Rabbi Dayan said to the other man. “There is also common decency, v’asisa hayashar v’hatov – you should do what is proper and good, even if not legally required.” (Igros Moshe, E.H. 1:91; Pischei Choshen, Geneivah 9:30)
“What if I had already positioned myself adjacent to the spot while the parked car pulled out?” asked Yankel.
“Then presumably you would have rights to the spot even according to Rabbeinu Tam,” Rabbi Dayan concluded. “Since you made a concerted effort to claim the spot, the practice is to respect this to avoid fights.” (See P.C., 9:13 ; 268:2)
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.