Shenayim Ochazin Be-Tallit: Splitting a Disputed Tallit

A well-known dispute between the Chakhamim and Sumchus surrounds the classic scenario of a litigation without ANY form of evidence. A tovei’a claims money which the nitva flatly denies, and there is no evidence supporting either party. The generally held opinion of the Chakhamim asserts that the defendant retains possession based on the principle of “ha-motzi mei-chaveiro alav ha-re’aya.” Sumchus disagreed and claimed that disputed monies are divided equally between the two litigants - “yachaloku.” Although several gemarot qualify this yachaloku solution, it is generally viewed as a COMPROMISE verdict. Since no evidence was garnered, the two parties split the monies as a settlement.

As stated above, we generally rule like the Chakhamim. This ruling makes the first mishna in Bava Metzia a bit surprising. The mishna describes the well-known scenario in which two people are jointly clutching a disputed article of clothing, and the mishna rules that the two parties split the clothing - yachaloku. At first glance, this ruling seems at odds with the general pesak of ha-motzi mei-chaveiro alav ha-re’aya.

The simple solution is to assert that since BOTH people are clutching the garment, NO ONE is viewed as the halakhic muchzak; ha-motzi mei-chaveiro alav ha-re’aya is not applicable. In the absence of this option, even the Chakhamim default to the yachaloku compromise that Sumchus applied more universally.

A different approach is to assume that the yachaloku of the contested garment is, in fact, a DERIVATION of ha-motzi mei-chaveiro alav ha-re’aya. Since they are EACH holding on to the tallit, they are each considered in halakhic possession of half the tallit. The principle of ha-motzi mei-chaveiro alav ha-re’aya awards default ownership to the possessor - the muchzak; since each is considered in possession of half the tallit, they each merit half the tallit based on the principle of ha-motzi mei-chaveiro. The yachaloku of the mishna is thus not similar to Sumchus’s compromise option. Rather, it is an independent pesak based upon viewing the two parties as in halakhic possession of exactly half the garment.

The larger question upon which this question rests is how Halakha views a “double hold.” Do we consider these two litigants as equally possessing half the garment, in which case yachaloku is indeed a ha-motzi mei-chaveiro derivative? Or do we consider their jointly contested hold as if NO ONE is in possession of the garment, in which case the yachaloku must be viewed as parallel to Sumchus’s compromise yachaloku? This question strikes at the very heart of how Halakha defines possession. The question of whether joint possession yields mutual half possession or NO possession is a reflection of how to fundamentally define possession.

An interesting consequence of this question about the nature of yachaloku relates to the parameters in when yachaloku is applied. A different gemara in Bava Batra (34b-35a) also discusses a situation in which there is no clear-cut muchzak, but it reaches a different solution. The case involves a contested boat. beit din effectively withdraws and allows the two litigants to wrestle it out without official judicial intervention – “kol de-alim gavar.” Why isn’t that solution applied to the contested tallit in Bava Metzia?

If the tallit is considered halakhically possessed by each litigant and the yachaloku is a derivative of ha-motzi mei-chaveiro, the solution is obvious. The splitting of the tallit is based on viewing each litigant as a partial possessor and applying ha-motzi meichaveiro to both halves. In contrast, since a boat floats on the open water, it is not “possessed” by either party, and yachaloku – which is a product of joint halakhic possession – is thus unsuitable. This seems to be the approach of Tosafot (Bava Metzia 2a), as well as that of the Ramban.

By contrast, others (see Tosafot, Bava Batra 34b, citing the Riva) assert a completely different factor that determines the application of kol de-alim gavar as opposed to yachaloku. Yachaloku can only be administered if beit din is not directly assisting a fraud. The contested tallit MAY be owned jointly, as the parties may have simultaneously discovered and seized the tallit. Since it is POSSIBLE that neither is lying, beit din can resolve the situation by directly facilitating a compromise of yachaloku. Regarding the disputed boat, however, one of the parties is clearly lying, and beit din refuses to enable this fraud by participating in yachaloku. They withdraw and allow the two litigants to spar over the boat – kol de-alim gavar. According to this view, POSSESSION was never the determining factor compelling yachaloku.

In fact, many Rishonim (Rashi and the Rambam) apply yachaloku EVEN in situations in which NEITHER party is in possession, as long as they may not be lying (leka vadai ramai). Evidently, these Rishonim view yachaloku as a JUDICIAL COMPROMISE, rather than a product of viewing each party as being in halakhic possession of the tallit.

Another interesting consequence of the question regarding the nature of yachaloku relates to the “post yachaloku” state of the item. What would happen if one of the disputants unilaterally seizes the tallit (tefisa)? Typically, unilateral seizures of disputed items do not succeed once the defendant has been awarded possession through the principle of ha-motzi mei-chaveiro alav ha-re’aya. Thus, if the two combatants over the tallit are considered to be in halakhic possession of half the tallit and the yachaloku ruling merely reflects this condition, neither can seize the entire tallit. If, however, neither is considered a muchzak – neither is in possession of half the tallit – perhaps subsequent “adjustments” through unilateral seizure would be effective. The Ramban (Bava Metzia 6a) claims that tefisa would NOT be effective, whereas the Ran claims that the gemara itself probes this question (and leaves it unanswered).

Furthermore, this question as to whether they are each in possession of half or if neither is considered in possession of any part of the tallit would dictate further “litigational management” of this scenario. The second part of the mishna describes a situation in which one party claims the ENTIRE tallit and one claims HALF the tallit. The mishna awards 75% to the party who claimed the entire tallit and 25% to the party who claimed only half the tallit. Tosafot (Bava Metzia 2a) wonder why the person who claimed 50% only receives 25%. If he had claimed the entire tallit, he would have secured 50%; the principle of migu dictates that he should therefore be believed when he actually claims 50%.

Many Rishonim view this migu as flawed and reject it for a range of different reasons. However, Tosafot cite the Rivam, who disqualifies this as a migu le-hotzi – a migu employed to extract money (which, according to the Riva, cannot be implemented). Presumably, the Riva did not view each party as in complete possession of half of the tallit. If they were each in possession, neither party would be attempting to extract money; each would be reinforcing his hold upon half of the tallit, and migu would thus be a suitable application. Evidently, each party is considered “in halakhic possession” of the ENTIRE tallit, and beit din imposes a compromise to distribute half the tallit to each party. The process of securing half for each party is an extraction (le-hotzi), for which migu is unsuited.

There may be certain situations of yachaloku that are treated differently from the mishna’s classic 50/50 yachaloku. The gemara (Bava Metzia 7a) claims that the mishna was referring to a unique situation in which the two parties were clutching the edges of the tallit. If they are grasping the actual tallit, the division is not applied proportionately, but rather based upon the comparative clutches. For example, if one party is clutching 70% of the garment, he receives that amount, while the other party receives 30%. In theory, each party may receive the segment he is grasping, while the middle “untouched” portion of the garment is split evenly. Perhaps a tallit that is clutched at the edges and which is split equally is not considered “uniquely in the halakhic possession” of each party, and that division is a court-imposed compromise. However, in a situation in which a tallit is ACTUALLY grasped, unique halakhic “possession” is recognized, at least over the part of the tallit that is actually clutched. The distribution of those segments of the tallit is not a product of a court-imposed compromise. Rather, each party is considered in exclusive possession of the parts that he is clutching and is awarded that segment of the tallit.