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There is a rule that Hefker Beis Din Hefker, that a court can declare items ownerless.

  1. What are the requirements for a Beis Din to declare items ownerless?
  2. Are there any courts nowadays with such powers, and if not, when was the last time there was such a court?
  3. If there are no such courts, does that mean that we can't institute Takanos which will result in a loss of money to one party? For example, as many follow those opinions that there is no such thing as copyright, is it impossible to make a cherem against copying other's music illegaly (not as a chumra, but as a takana)? If one can, why has no one implemented a takana similar to the law here of retroactively mafkiya kiddushin and biya where there is a problem of aguna (let's say where the husband disappeared). This was (to the best of my knowledge) never implemented even when the Vaad Arba Artzos was around and even in the time of the Rishonim. Does this mean that there were no Beis Dins with the power to take money out even then?
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I'm pretty sure Rav Hershel Schachter holds that any beis din of three hedyotot can be mafkir though hefker beis din hefker. –  Double AA Jul 23 '12 at 23:17
    
@DoubleAA does he say why one can't be makir kidushin and biya? –  Shmuel Brin Jul 23 '12 at 23:28
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I don't know, but I've been waiting for the day when three guys come and take all his sefarim. –  Double AA Jul 23 '12 at 23:32
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^^ It's funny, but it's also a serious question on that shittah that I have never heard a good answer to, aside from: don't be mean. –  Double AA Jul 24 '12 at 0:40

1 Answer 1

Encyclopedia Talmudit discusses this question, at the entry "הפקר בית דין," section ד.

Some ראשונים hold1, based on the gemara Gittin 36b, that הפקר בית דין can only be done with a בית דין of the caliber of that of רב אמי and רב אסי, and hence it cannot be done today.

Others posit that the comparison to רב אמי ורב אסי is not literal, but is really meant to be taken in the sense of "the biggest בית דין of the generation,"2 or whichever בית דין in town that has the ability to be מוציא ממון, to enforce the payment of money.3

There is also an opinion out there that any בית דין is capable of hefker beis din4, and when the gemara mentioned רב אמי ורב אסי, that was just to exclude a בית דין of הדיוטות, common people (i.e., without semicha.

However, there is an opinion that even a בית דין של הדיוטות has the power of הפקר בית דין, in line with the supposed statement by Rav Schachter.5


1 רבינו תם in ספר הישר, siman 270; רא"ש גיטין, perek ד number 13; בית יוסף CM 67; מרדכי גיטין perek ד number 381; and more.

2 רבינו תם in ספר הישר, ibid.; תוספות to Gittin 36b; רא"ש and מרדכי, ibid.; סמ"ג, Negative Commandments 271; סמ"ק siman 258; and more.

3 ספר הישר and ראבי"ה.

4 שלחן ערוך.

5 ריטב"א Gittin 36b; שו"ת רדב"ז, and רדב"ז על הרמב"ם.

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Reb Shimon Shkop! –  Matt Jan 19 at 15:00
    
@Matt I'm not sure what you're referring to. –  Shokhet Jan 19 at 19:20

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