By Rav Moshe Taragin
Shiur #09: Simanim
Most situations of lost items do not involve witnesses who can testify to the items original owner. The retrieval system supported by halakha demands that the person claiming to be the rightful owner provide a siman, a unique indicator, to prove that he is the rightful owner. The gemara in Bava Metzia (27) debates the source of the effectiveness of signs.
According to one opinion, simanim only work at a de-rabbanan level; me-deoraita, provision of a sign is insufficient to extract the item from the finder. The Rabbanan instituted a system which allows items to be claimed through simanim because society would not properly function without them. The gemara provides an alternative approach as well which is ultimately adopted that simanim operate at a deoraita level based on various sources.
An interesting question pertains to the status of simanim and whether they parallel the testimony of eidim. Can these simanim actually be evaluated and treated as witnesses? Perhaps, since the situation of lost items does not typically allow for eidim, simanim represent the highest form of evidence and are attributed a status akin to that of witnesses! Or does halakha recognize the efficacy of signs but not afford these simanim the same status of eidut?
It appears that the Hagahot Mordechai maintained the first approach that simanim are indeed treated as eidut. In his final comments to the second perek of Bava Metzia he comments on a gemara (Bava Metzia 27b) which assumes that if simanim operate me-deoraita, they can enable the return of a get to a woman who claims that she lost it after receiving it from her husband. Returning a get to a woman (rather than to her husband) validates the get and allows her to remarry. By accepting her siman we determine that her get was actually delivered and she is halakhically divorced. Effectively, then, simanim affect halakhic status; they do not ONLY restore lost items. The gemara acknowledges the difficulty in this case if simanim are only Rabbinic in origin. If so, their scope should be limited to monetary issues. But the gemara is quite confident that if simanim operate at a de'oraita level, they can be effective even in restoring a get to a woman and presuming that she was already divorced.
The Hagahot Mordechai questions this association. Several gemarot (see for example Kiddushin 4b) establish the incongruity between the realms of monetary conflict and issurim - or Mammona and Issura. The effectiveness of a given halakha in one realm does not assure its relevance in the other. Just because the Torah ordained that simanim work for aveida restoration does not assure their success for issurim purposes. How can we assume that the married woman was divorced simply because she supplies simanim that indicate that the get was actually delivered to her?
To resolve this question, the Hagahot Mordchai claims that the Torah did not merely rely upon simanim; rather, it granted simanim a status of eidut. Lost items rarely have witnesses who view the loss. Since the simanim are the most powerful evidence available, they are accorded the status of ACTUAL TESTIMONY. Once simanim are viewed in this fashion, their GLOBAL efficacy is assured. Eidut works universally both for monetary issues as well as issur applications.
A second halakha which may indicate that simanim were afforded the status of eidim appears in the gemara (Bava Metzia 28a) concerning situation of conflicting simanim. First the gemara offers a scenario in which competing people claim an item and each offers different simanim. The gemara rules that this standstill yields a state of yaniach; the finder must retain the item until more conclusive proof is discovered. An ensuing gemara describes a situation in which each party provides a siman and one of the two also offers a witness supporting his claim. The gemara asserts that the one witness is nullified and the situation resembles the case of each party offering different simanim in other words, we rule yaniach. The gemaras language is instructive: eid echad kmal dleta (the one eid is nullified as if he didnt exist). Perhaps the nullification of the witness is based on the following logic: since the simanim are considered as eidim, the lone eid cannot have any impact. If two eidim already testified about each opposing position in a particular litigation, a subsequent witness has no impact. If simanim DO NOT achieve a status of eidim, it would be strange to completely eliminate the eid echad in this case.
An interesting Raavad may also indicate the status of simanim as halakhic eidut. The gemara (Bava Metzia 27a) notes various levels of acceptable simanim. The most compelling siman is called a siman muvhak and generally refers to signs which are highly exclusive; they OVERWHELMINGLY prove that the item was lost by the person lodging the claim. The standard and less compelling siman is referred to simply as a siman. The Raavad claims that a siman muvhak would not override a standard siman. If Reuven offers a siman muvhak while Shimon offers a standard siman, we do not automatically award the item to Reuven. Instead, we rule yaniach, the standard ruling for conflicting siman claims.
In theory, evaluating the relative strengths of simanim should be a viable method for resolving contradictory simanim claims. The Raavads rejection of this approach may be base on his viewing simanim as a form of eidut. Eidim or eidut are never evaluated to determine their relative strength; every accepted eidut is afforded the same weight and identical validity. If two groups of eidim contradict each other, we are frozen in a state of trei u-trei; we cannot favor the group of eidim who appear more reliable. The Raavads unwillingness to evaluate relative strength of simanim may demonstrate his viewing simanim as a form of eidut.
Of course, the most extreme proof that simanim may be awarded the status of eidut would be discovering a position that allows simanim to operate OUTSIDE THE REALM OF LOST ITEMS in extracting money form a muchzak. The ubiquitous rule of ha-motzi mei-chavero alav ha-raya is very strict and is rarely overridden. If simanim can be employed in general applications to overcome a muchzak, it may indicate that they are truly awarded eidut status. Most Rishonim (Ritva, Ketuvot 85a; Tosafot, Chullin 96a; and Nimukei Yosef, Bava Batra 128a) claim that simanim cannot operate beyond the parameters of aveida and certainly cannot be employed to extract monies. However, the gemara in Bava Batra (128a) discusses a case of eidim who witness an event involving a tract of land and subsequently go blind. Shmuel allows them to testify and to identify the land in question through the use of simanim. Based on this gemara, Rabbenu Yona claims that simanim can be employed to clarify the content of eidut.
On the one hand, Rabbenu Yonas comments are radical in that they extend the employment of simanim far beyond the narrow confines of aveida. Alternatively, his statement may be delimited by two important qualifications:
1) Rabbenu Yona himself distinguishes between a standard siman and a siman muvhak. Ultimately, he is only willing to allow simanim muvhakim to enter formal testimony of eidim. He limits his allowance to simanim muvhakim because standard simanim are not unanimously accepted as deoraita. Still , according to Rabbenu Yona, at least according to the opinion which DOES view standard simanim as doraita, even standard simanim should be included in testimony of eidim
2) Most importantly, Rabbenu Yona did not outright allow the extraction of monies through the provision of simanim. He allowed simanim to inform testimonies. Although he does view simanim in a broader sense, he stops short of allowing simanim as a sole force in extracting money.