Things that have been abandoned ("res nullius" in the Roman law). The Talmud treats of four kinds of things that have no owner: (1) Seas, rivers, brooks, the desert (which can not be subjected to ownership), and all they contain; also wild beasts wherever found. (2) Things declared by the owner to be derelict (). (3) The property of a convert who dies without leaving issue "begotten in holiness." (4) Land sold by aGentile to an Israelite, for which he has been paid, but for which he has not executed a deed (this last class is questioned).
He who devotes anything as a derelict can not put any limitations upon it. Like the fruits of the seventh year, it must be as free to the rich as to the poor. And as long as no one has, by occupation, made the derelict his own, the former owner can recover it (Ned. 44a).
The fourth kind is a subject of dispute in the Talmud. It originated in the Persian law, which recognized no transference of immovable property without a deed; which practise became recognized in Jewish law. It was argued: "The law of the kingdom is law"; the Gentile has conveyed no title to the Israelite purchaser, but as he has been paid for his land, his own title is gone; the land is therefore derelict. Hence the first Israelite who can acquire it by occupancy will be recognized as its owner. However, this very maxim, "The law of the kingdom is law," seems to have been quoted on the other side of the question (B. B. 54b). It must also be observed that, according to some interpreters of the Talmud, the third owner could not make his claim valid before he paid to the Israelite who had bought the land from the Gentile all of the money which he had expended.
Seas and rivers excepted, anything, whether movable or immovable, coming within these four classifications may be acquired by occupancy, and not otherwise. The lawfulness of fishing and hunting rests on the position that fish in open waters, and wild beasts or fowl everywhere, are "res nullius," and as such belong to the first occupant. But fish in an artificial pond ("bibarin"; Latin, "vivarium.") are private property; to take them without the consent of the owner is robbery; and it is robbery likewise to take game out of a net or trap which has been set by another, even if it be in the desert (B. Ḳ. 81a).
To hunt upon the field of another may be morally wrong, and the hunter is responsible for all damage done; but the wild beasts he catches or kills belong to him (compare, however, Finder of Property). Fish that jump from the water into a ship or boat belong to the owner thereof (B. M. 9b). Other ownerless movable things, including tame beasts, belong to him who takes possession in a way that would give title to a purchaser, according to the nature of the thing to be acquired (see Alienation and Acquisition).
When a debt or a deposit has for any reason become ownerless, the debtor or depositary is freed from all liability, being naturally the first occupant. For a like reason bondmen or bondwomen declared by their owners as derelict become their own masters—that is, they become free; but if under age, they become the property of the first occupant, like goods or tame beasts.
The occupation of derelict land must have the same character in each of the three cases. To seize a deed for the land gives no title except to the parchment on which it is written. Such occupation of land as is defined under Alienation is generally good enough; but where a field or other parcel of land is separated from other parts of the same estate, even by a foot-path, the actual occupation of one can not by a declaration in words be extended to the other. The mere perceiving of fruits, or the taking of fallen trees, is not deemed occupancy of the soil. Plowing, or sticking a spade or pick into the ground, or sowing seed and covering it with earth, is effective. To erect posts or doors on the ground gives title; living in a house, or building something in the house above the ground, does not. The reason for these technical distinctions is this: that there is no contract, written or oral, to impress a meaning on the acts of occupation; hence they can not be extended beyond the very thing which they touch (B. B. 54a, b).
Issur, the convert, father of Rab Mare, a Babylonian teacher, is an example of a convert having no son "begotten in holiness." The difficulty with which he transmitted to his son money on deposit is described in B. Ḳ. 87a.
- Ḥoshen Mishpaṭ, 273-275;
- Maimonides, Yad, Zekiyyah, ch. 1, 2.