Rabbi Dayan was reviewing email responses he had received. One was about the article “Ring on Credit,” in which discussed whether a wedding ring bought with a credit card was valid for kiddushin. It concluded that according to many authorities, the kiddushin are valid even mid’Oraysa, biblical law, for various reasons.
The article mentioned that according to some authorities, even if the ring was acquired through a Rabbinic kinyan, the kiddushin is valid mid’Oraysa, based on the monetary authority of the Sages to revoke or establish ownership – hefker beis din hefker.
As the article did not distinguish between a Jewish-owned store and one owned by a gentile, a reader posed the question: “How can hefker beis din apply when the ring is bought from a gentile?”
“That is an interesting point,” Rabbi Dayan said to himself. “The Gemara (Gittin 36b) derives the monetary authority of beis din or communal leaders from verses in Ezra and Yehoshua. The poskim understand this to be a biblical authorization (see Rashba 1:775; 7:256), seemingly based on beis din’s authority to adjudicate or impose enactments. However, a gentile presumably is not subservient to their authority.”
In truth, the article did not explicitly state that hefker beis din applies also to a ring purchased in a store owned by a gentile. Most Rishonim maintain that meshichah (taking physically) is a valid form of kinyan when purchasing from a gentile, on both the biblical and rabbinic levels. Thus, when the chosson takes the ring home from the store, he acquires it fully, without need for hefker beis din (see Pischei Choshen, Kinyanim 12:6-7).
Nonetheless, the fascinating question remains to be clarified:
Does the authority of hefker beis din hefker apply to assets of a gentile? Are there cases in which this rule is used?
“The Sages instituted (Kiddushin 17b) that a Jewish convert inherits his share in the estate of his gentile father, even though he is no longer halachically considered his son, and the remaining gentile brothers are the biblical inheritors,” replied Rabbi Dayan. “Some base this institution on hefker beis din. Thus we seemingly see the concept applied to assets of a gentile” (C.M. 283:1).
“Divrei Yirmiyahu (Hil. Avodah Zarah 7:5) questions this, and writes that, indeed, gentiles are not subject to the monetary authority or enactments of the Sages. He explains, instead, that the gentile brothers withdraw from the convert’s share on their own initiative, since according to civil law he continues to inherit from his gentile father.
“Similarly, Sho’el Umeishiv (1:1:124) writes that although the Sages granted the right to erect a sukkah in public property, in places where gentiles live and have a share it is not allowed, since the Sages cannot grant away their rights.
“However, Sedeh Chemed (maareches hei #59, s.v. v’hayah) writes that since beis din’s authority through hefker beis din is biblical and they can revoke Jewish ownership – certainly they can revoke gentile ownership as well.
“We further find (Gittin 14a) that the Sages instituted “maamad sheloshtan,” to enable verbal transfer of a loan from the lender to a third party, when the lender, borrower and third-party stand together. Rashi (ibid.) bases this institution on hefker beis din hefker.
“Tosafos (Gittin 12b, s.v. b’maamad) writes – in the case of a gentile lender and a Jewish borrower and third party – that if the Sages instituted to transfer the loan from a Jewish lender to a third party, certainly from a gentile lender. This also implies that hekfer beis din hefker applies to assets of a gentile.
“Dvar Avraham (1:1) maintains that hefker beis din is based on beis din’s communal authority (srara umemshalah), not their judicial authority. Thus, he adopts a middle position: When Jews have political authority, hefker beis din applies also to gentiles, but not when they are bereft of political authority.”
(See Talmudic Encyclopedia, vol. X, p. 110; Kovetz Yesodos v’Chakiros, “Hefker Beis Din Hefker.“)
Verdict: Some sources indicate that hefker beis din hefker applies also to a gentile’s assets; some maintain otherwise.