Resources and Review Tests for Nedarim 45
The גמרא continues its discussion of הפקר and says in the name of רבי יהושע בן לוי that מן התורה you can be מפקיר something in front of one person but חז"ל instituted that you need three people around to make something הפקר so that one person could be the one to take it and two people would be there as a witness. The obvious question asked by many אחרונים is that our משנה when discussing the case of the person who wants to give food to the guy starving in the desert is explicitly talking about a case where there are only two people and yet הפקר works! Theש"ך in יו"ד סימן קכ"א ס"ק נ"ג asks this question and gives several answers: one is that in such cases חז"ל were lenient and kept things on the דאורייתא kevel. The other answer he gives (which seems to be his עיקר) is that תוספות on our דף says that the requirement to have three people is only by קרקע. The reason for this is explained by the רא"ש in our פּרק in אות י"א. He explains that by land, you need two witnesses and one person to acquire the land for the הפקר to be meaningful. However, by מטלטלין, as soon as he hears you say it’s הפקר he will take the item and will be believed it is his without any witnesses with a מיגו that he could have said you sold it to me. Therefore, the הפקר is meaningful even if only said in front of one. The מחנה אפרים in זכיה מהפקר סימן א points out that this also seems to be the opinion of theרמב"ם (since the רמב"ם mentions מטלטלין in his discussion of הפקר in פּרק ב of הלכות נדרים but by the requirement to need three he only says מפקיר שדיהו.) However, תוספות in שבת דף י"ח ע"ב says that הפקר always requires three people מדרבנן. The קצות החושן in סימן רע"ג says most poskim require three people in all cases of הפקר. However, in או"ח סימן רמ"ו by the case of the person who’s animal is by a נכרי on Shabbos, the מחבר says he can be מפקיר it even with no one around to hear him. This may because it is a שעת הדחק. The ביאור הגר"א in סימן רע"ג says that the רמ"א holds that even by land one only needs one person and that’s even מדרבנן. Our גמרא that says you need three is just discussing getting out of the חיוב מעשר.
There is a further discussion as to whether מדאורייתא you must be מפקיר to one person or is even saying it to yourself sufficient. The רמב"ם in פּרק ב says you need at least one person to be aware and the aforementioned רא"ש quotes רבינו שמשון that it can even be said to yourself. The רא"ש recommends saying it at least in front of one person even if they are your relative. The משנה ברורה in סימן רמ"ו says that לכתחילה you should only be מפקיר in front of three, but at least in front of one, even if that one is related to you.
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