Dovid looked at his bookcase. “I have no room left for new sefarim,” he said, shaking his head. “I’ve got to free up some space.”
Over the weekend, he decided he would clear away any doubles or old, unused sefarim. He made a small pile of the extra sefarim and brought them to yeshiva with him. He put them in his shiur room with a note that read Hefker [ownerless] and told his friends the sefarim were hefker and could be taken.
During the course of the week, most of the sefarim were indeed taken. An old Chumash remained, one that Dovid had received many years ago from his grandparents.
Toward the end of the week, Dovid had a change of heart. “I want to keep the old Chumash from my grandparents,” he said to his chavrusah.
“Has anyone taken it yet?” asked his chavrusah.
“No one yet,” replied Dovid. “I’d like to go get it now from the room.”
“There’s another shiur going on,” said his chavrusah. “You’ll have to wait until it finishes.”
Dovid turned to the other people sitting at his table. “I’m revoking my hefker of the Chumash,” he announced. “I want to keep it.”
When the shiur finished, Dovid went to take the Chumash. People were exiting the room, among them, Eli – carrying the Chumash.
“Excuse me, but that Chumash is mine,” said Dovid.
“What do you mean?” asked Eli, bewildered. “There was a sign that it was hefker.”
“That is true,” said Dovid. “I initially meant to give it away, but recanted.”
“It’s too late,” said Eli. “The Chumash is already mine. You can’t recant now.”
“I didn’t recant now,” said Dovid. “I changed my mind earlier, but didn’t want to disturb the shiur. I have witnesses that I retracted my hefker half an hour ago.”
“Does that help?” asked Eli.
“Why not?” responded Eli. “If I made the sefarim hefker verbally, why can’t I undo the hefker verbally?”
“Once you renounced ownership, that’s it!” exclaimed Eli. “It’s no longer yours!”
“Not true!” argued Dovid. “You hadn’t taken the Chumash yet when I decided I still wanted it, so I have first claim.”
“I’m happy to give the Chumash back,” said Eli, “but I don’t think you’re right. Let’s ask Rabbi Dayan.”
Dovid and Eli went over to Rabbi Dayan. “I made my Chumash hefker at the beginning of the week, but recanted before Eli took it,” Dovid said. “Does he have to return it or is it his?”
“When a person makes something hefker, he cannot verbally undo his hefker,” answered Rabbi Dayan. “The item already left his possession, and he cannot prevent another person from taking it.” (C.M. 273:2)
“I don’t understand how the Chumash could have left my possession if no one took it yet,” said Dovid.
“The Rambam, based on the Gemara [Nedarim 44a-b], writes that hefker is like a neder [vow] and therefore one is not allowed to recant,” continued Rabbi Dayan. “Some authorities understood, based on this wording, that the hefker item doesn’t actually leave your possession until someone takes it, but you are prohibited from recanting and preventing others from taking it. However, most authorities assume that the hefker item left your possession; you disown it and disassociate yourself from that property.” (See Ketzos Hachoshen and Miluei Choshen 273:1)
“Does it make a difference when the person changed his mind?” asked Dovid. “What if I had recanted the same day?”
“It does not make a difference,” replied Rabbi Dayan. “You can only recant toch kedai dibbur, within a second or two, as with other transactions [Machaneh Ephraim, Zechiya Mei’hefker 8]. In truth, the Gemara mentions that a person who made his field hefker can recant for three days, on account of a special consideration of terumah. The Rambam and Shulchan Aruch [C.M. 273:9] cite this law. The SM”A [273:13] notes that according the Rosh this three-day period extends to other hefker items as well. However, the SM”A clarifies in his commentary to the Tur [Drisha 273:3] that the Rosh rejects this ruling entirely, even regarding real estate, and you cannot retract even within three days.”
“So how could I recover the Chumash for myself?” asked Dovid.
“Once an item is made hefker, anyone can claim it, including the person who made it hefker,” replied Rabbi Dayan. “You would have to make a kinyan, an act of acquisition, just like anyone else would.” (C.M. 273:4)