QUESTION: The Gemara quotes Rebbi Yehoshua ben Levi who says that mid'Oraisa
an item can be made Hefker in front of just one person, but the Rabanan
enacted that it be made in front of three people.
The simple reading of the Gemara indicates that mid'Rabanan, Hefker must be
made in front of three people, and mid'Oraisa an item becomes Hefker if
there is at least one person aware of it. However, this seems to contradict
the Gemara in Shabbos (18b). The Gemara there quotes the opinion of Beis
Shamai who holds that one is prohibited to have work done with his utensils
on Shabbos. When we see a person's lamp burning on Shabbos, we assume that
the owner made his lamp Hefker before Shabbos, even though no one actually
witnessed the Hefker.
Although the requirement for three people is only mid'Rabanan, and the
Rabanan permitted a person to make an item Hefker without three people when
he has no choice, he still needs one person for the Hefker to take effect
(a) The RASH (quoted by the Piskei ha'Rosh) proves from the Gemara in
Shabbos that our Gemara here does not mean that there is a requirement that
Hefker be made in front of one person. Even if no one is present when one
makes it Hefker, the item becomes Hefker Min ha'Torah.
HALACHA: The SHULCHAN ARUCH (CM 273:7) quotes the RAMBAM'S opinion that
mid'Oraisa one must be Mafkir the item in front of one person, and
mid'Rabanan in front of three. The REMA quotes the ROSH, that if one was
Mafkir on front of no one, the Hefker still takes effect. (See VILNA GA'ON
(b) TOSFOS in Bava Metzia (30b, DH Afkera) explains that witnesses are
required to assure that the owner really intends to make the item Hefker. In
a case where his failure to make an item Hefer will result in a
transgression of an Isur, then we can assume beyond any doubt ("Anan
Sehadi") that he has full intentions of making the item Hefker and there is
no need for other witnesses. Hence, in the case in Shabbos, where the owner
of the lamp will be desecrating Shabbos if he does not make the lamp Hefker,
we can assume that he made it Hefker with full intentions.
(c) TOSFOS there also says that Rebbi Yehoshua ben Levi requires the Hefker
to be made in front of others only with regard to making produce exempt from
Ma'aser. With regard to other laws, the Hefker takes effect even if no one
else is observing it.
(d) The MORDECHAI (quoted by the VILNA GA'ON OC 246) answers that there is a
need for witnesses only when one is making Hefker an item that is not
usually made Hefker. Since everyone is Mafkir their lamps before Shabbos
(according to Beis Shamai), there is no need for witnesses.
QUESTION: However, the Shulchan Aruch seems to contradict his ruling. In
Hilchos Shabbos (OC 246:3), the Shulchan Aruch rules that if one rented his
animal to a Nochri on the condition that the Nochri return it before
Shabbos, and the Nochri kept it in his possession during Shabbos, the owner
should be Mafkir the animal in front of *no* witnesses. (The Rema says that
it is preferable to be Mafkir it in front of three.)
How can the Shulchan Aruch rule (in Hilchos Shabbos)that one be Mafkir the
animal in front of no one, if he rules (in Choshen Mishpat) that one must be
Mafkir an item in front of at least one person for the Hefker to take effect
In addition, the Rema (in Choshen Mishpat) cites the Rosh who says that the
Hefker takes effect even if there are no witnesses. Why, then, in Hilchos
Shabbos does the Rema mention being Mafkir the animal in front of three
ANSWER: The SHA'AR HA'TZION (OC 246:18) quotes the TOSFOS SHABBOS who
answers that in Hilchos Shabbos, the Shulchan Aruch is dealing with a case
where the owner has no one present to serve as a witness to the Hefker.
Since he has no choice, the Shulchan Aruch writes that at least he should be
Mafkir his animal by himself, since such Hefker does work according to some
An alternate explanation might be that in Hilchos Shabbos, the Shulchan
Aruch is relying on the answer of Tosfos in Bava Metzia who says that there
is no need for witnesses in a situation where the owner wants to prevent
himself from transgressing an Isur.
Regarding the contradiction in the Rema, the REMA in Hilchos Shabbos writes
that one should be stringent and be Mafkir his animal in front of three
people, because he is following the view of the Mordechai mentioned above.
Since people usually do not make their animals Hefker, one who wants to make
his animal Hefker must do so in front of three witnesses. (The MISHNAH
BERURAH there writes that when possible one should be Mafkir his animal in
front of at least one person.)