Catch 22

Rabbi Avrohom Sebrow

Many attorneys are familiar with the case of Pierson v. Post. It is often the first case studied in law school when property rights are taught. The trouble started in 1802 at an uninhabited beach near Southampton, New York. Lodowick Post, a local resident, was out with a hunting party when his hunting dogs caught the scent of a fox and began pursuing it. As they drew near the fox, Jesse Pierson, another local resident, saw the fox—though he denied seeing Post and his party—and promptly killed it and carried it off for himself. Post filed a lawsuit against Pierson, claiming that because he had already begun pursuing the fox, the property of the fox’s pelt and carcass were rightfully his and not Pierson’s. The local justice ruled in favor of Post. Pierson appealed the ruling to the New York Supreme Court of Judicature, which reversed the justice’s decision and ruled in favor of Pierson. The dispute required determining at what point a wild animal becomes “property.” The judges chose not to follow common law precedent on wild animal capture, and so were forced to synthesize reasoning from a variety of well-known historical legal treatises. They concluded that Post did not acquire the fox just because he was chasing after it. Therefore, Pierson was entitled to keep the fox. However, they added, if Post had mortally wounded the fox or actually ensnared it thereby depriving the animal of its liberty, then Post would indeed be the rightful owner.

What if Post and Pierson were Jewish and adjudicated this case in beis din? What would the Beis Din of Southampton rule? The primary premise of the New York Supreme Court would seem to be sound. Someone does not acquire an animal just by looking at it or chasing it. One needs to make a kinyan on an object to acquire it. However, beis din would go further than the court. Even wounding the animal or ensnaring it is not necessarily enough to acquire the animal. The Mishna states, (Gittin 59b) “Animals, birds, or fish that were caught in traps are not acquired by the one who set the traps until he actually takes possession of them. Nevertheless, if another person comes and takes them, it is considered robbery on account of the ways of peace. Rebbi Yosei says: This is fullfledged robbery.” The Gemara explains that the dispute between Rebbe Yosei and the Sages centers around whether one may enforce this right in court. The Sages rule that one cannot take an animal that someone else already trapped. However, unless the trapper made an actual kinyan on the animal, the trapper cannot sue the offending party in beis din. Rebbe Yosei rules that a trapper acquires an animal when he merely traps it and can enforce this right in beis din. The halacha follows the Sages. (CM 370:4 with Be’er HaGoleh) However, the Gemara adds a caveat. If the trap actually holds the animal, as is the case with a cage, then the trapper fully acquires the animal even according to the Sages. It is only when the animal cannot move because of a hook or a leg snare, that the trapper does not acquire the animal.

Therefore, Beis Din would rule that if Post effectively trapped the animal by wounding it, Pierson may not take the animal. But if Pierson took the animal, Beis Din will not take the animal away from him. If Post had the fox trapped in a cage, then Beis Din would take it away from Pierson. The aforementioned would seem to be the ruling of the Shulchan Aruch (CM 273:14) and the majority of commentators. The Ketzos HaChoshen (273:4) seemingly disagrees. An animal can be acquired with “meshicha” or “hagboah.” Pulling an animal or picking it up are both bona fide methods of acquisition. However, one doesn’t need to actually pull an animal or pick it up. One can call the animal. If it moves towards the caller, the caller has performed a kinyan meshicha. Similarly, one doesn’t actually have to pick up an animal. If one holds food above an animal’s head and it jumps to get the food, hagboah was performed. (Tosfos in Kiddushin 26a) Likewise, the Ketzos argues that if one puts food on a hook and causes a fish to swim towards the food, he has acquired the fish. This is true even though the fish is only caught on a hook and not in a cage or net. This ownership is even enforceable in Beis Din. Similarly, if one mortally injured a fox and caused it to move by chasing it, that individual has acquired the fox. If an interloper nevertheless took it, Beis Din would take it away from him. Perhaps the New York Supreme Court in 1805 followed the opinion of the Ketzos and ruled that mortally wounding a fox is sufficient to acquire ownership (coupled with the fact that the hunter caused it to move).  

Rabbi Avrohom Sebrow is a rebbe at Yeshiva Ateres Shimon in Far Rockaway. In addition, Rabbi Sebrow leads a daf yomi chaburah at Eitz Chayim of Dogwood Park in West Hempstead, NY. He can be contacted at ASebrow@

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