Takfa Echad Befaneinu
Grabbing an Item in the Presence of the Court
Sources for this week's shiur:
1. 6a "Ba'i R. Zera ... shani."
2. Rashi 6a s.v. takfa, 6b s.v. ha-motzi.
3. Tosafot 6a s.v. hikdisha, Ran s.v. lo, s.v. ve-im timzta lomar.
4. Rashba s.v. ve-im.
5. Rambam Hilkhot To'en Ve-nit'an 9:12.
1. Can R. Zera's question be applied to any case where one grabs an object from another? If yes, why did he raise this issue here?
2. In the case of "safek bekhor" can the silence of the original owner be construed as admission? If not, what does the gemara attempt to deduce from this case?
3. Does the Rambam rule that lack of immediate reaction is considered admission? If so, why after one's initial silence. Can he grab the talit back, after "admitting" that it does not belong to him?
R. Zera raises a question relating to the case of our mishna "shnayim ochazim be-tallit" - Takfa echad be-faneinu mahu - what is the halakha if one of the two litigants grabs the entire tallit in our (beit din's) presence? At first glance, this question seems odd. Why should there be a possibility that this seemingly illegitimate act of force should be effective? Shouldn't we simply take the tallit away from the aggressor and split it equally, since it was initially jointly held?
The continuation of the sugya seems to support this argument, and hence reinterprets the question of R. Zera. The gemara claims that if the response to the tekifa was an immediate protest, the tallit should obviously be returned, since the litigant reacted to the aggressor to the best of his ability. However, if he didn't protest immediately, then we may interpret his silence as admission. In other words, the act of force per se is not condoned, and in no way enhances the position of the tokef. It is only the possibility of admission implicit in the reaction of silence, which provoked R. Zera's question - is a bona fide hoda'a indicated by the initial lack of protest?
According to this explanation, the continuation of the sugya (hikdsha ve-lo takfa mahu) should be explained as follows: If we define the failure to protest immediately as hoda'a, would the same apply if, instead of physically grabbing the tallit, the litigant consecrated it? Should we assume that the real owner would normally protest such statements, thereby suggesting that failure to protest is hoda'a? Or perhaps, we should distinguish between a physical act of aggression which demands response, and a mere (from his perspective) meaningless statement, which can be met complacently with silent disdain?
The Rambam (Hilkhot To'en ve-Nit'an 9:12) rules in the case of tokfa that the initial silence constitutes admission. Therefore, the tallit remains in the sole possession of the tokef. Surprisingly however, the Rambam continues that if the tallit is grabbed back, even if this attack is countered by immediate protest, the tallit is divided. This ruling seems incomprehensible and is attacked by the Ra'avad. If his silence constitutes admission, what right does he have to repossess the tallit after "admitting" that it doesn't belong to him? Apparently, the Rambam understands the gemara differently. We will try to discover how the Rambam interprets this sugya, and explain why he rejects the simple reading of the sugya presented above.
In truth, the explanation of R. Zera's question which we suggested above, although corresponding to the simple reading of the gemara, nevertheless runs into difficulty upon closer inspection. Why was this question raised only within the context of our mishna? The identical issue applies anytime one grabs an object from another who in turn refuses to react.
In addition, the attempt of Rav Nachman to explain that the beraita which states: “if the tallit was in the possession of one of the litigants – the onus of proof is on the second” - as a case where total possession of the litigant was attained by grabbing the tallit, while the other party failed to react initially. This, he claimed proves that initial silence constitutes admission. However, if we are discussion actual admission that the tallit in fact belongs totally to the other litigant, what sense can we make out of the ruling that “the onus of proof is on the second”. What proof can he bring after readily admitting that he is not owner of the tallit. After all, “the admission of a litigant carries the weight of a hundred witnesses”.
Furthermore, the continuation of the sugya (6b) which appears to connect the question under discussion with the case in which a kohen grabbed a safek bekhor (an objective doubt whether this animal is the firstborn thus belonging to the kohen) is troubling. After all, since the doubt regarding the bekhor is objective, neither the original owner nor the kohen can possibly know if the animal is actually a bekhor. Within this context hoda'a is meaningless, for one cannot admit what he doesn't know.
Nevertheless, this approach, which views the hoda'a as bona fide admission is adopted by Tosafot (6a s.v. Hikdisha). Apparently, they consider the entire discussion of safek bekhor as parenthetical with respect to the issue of implicit hoda'a. This "irrelevant" discussion is introduced due to the gemara's conclusion that the consecration of the disputed mesuta (bath) by one of the parties does not take effect. From this we may conclude that the response of silence to the consecration of the mesuta does not constitute admission.
The Ran (s.v. Lo) resolves this problem in a novel way. He argues that the problem of R. Zera does not revolve around the questionable status of the initial silence. R. Zera is certain that this constitutes a safek hoda'a. (In other words, there is no resolution as to the status of the hoda'a - it remains a safek.) His problem relates to the status of "shnayim ochazim." When two litigants are in joint possession over a tallit, is it as if each is "muchzak" on half of the tallit, or is neither party muchzak. If each is muchzak on half, then safek hoda'a (engendered by the initial silence) would not have the power to remove the tallit from this original chazaka, and half the tallit should be returned. If, on the other hand, the tallit in its entirety is in a state of safek and neither is considered muchzak, then it is reasonable that we would not confiscate the tallit from the one who grabbed it, since it is now in his possession and his claim is supported by a safek hoda'a.
Based on the above that the dilemma of R. Zera is the status of muchzak in the case of safek, the proof from safek bekhor is clear. If a kohen is able to grab the safek bekhor from the original owner, this would indicate that in spite of his possession, the owner is not considered a muchzak. The fact that hoda'a is inapplicable is irrelevant, since there is no attempt to prove anything regarding hoda'a. (See Chidushei HaRan s.v. Ve-im timtza lomar.)
However, Rashi (6b s.v. Ha-motzi) comments that when the kohen grabbed the safek bekhor, the original owner responded by silence. Apparently Rashi maintains that the continuation of the sugya refers to similar circumstances as those discussed by R. Zera (initial silence which may be considered hoda'a). It is clear that we cannot interpret this silence as admission in the classical sense, since neither the kohen nor the original owner can be sure whether or not this animal is a bekhor.
Furthermore, Rashi (6a s.v. Takfa) indicates that the entire question of R. Zera is limited a situation where the tallit was grabbed prior to the shevu'a. Apparently, following the shevu'a, the hoda'a implicit in the silence is ineffectual. Again it is obvious from Rashi that we are not dealing with a full-fledged admission, which should be accepted under all circumstances. But what possible alternative can we offer to explain the "hoda'a" of our sugya?
The Rashba (s.v. Ve-im) argues that this implicit hoda'a discussed in our sugya, is effective only because the litigant who grabbed the tallit was previously in joint possession of the tallit. However, if one grabs a tallit (in the presence of witnesses) which was previously in the sole possession of another, it is returned, although the original possessor failed to respond. Once again, it is self-evident that we are not discussing full-fledged hoda'at ba'al din, which would be effective under all circumstances.
According to the Rashba, the hoda'a referred to in our sugya is not the classic "hoda'at ba'al din", which is unqualifiedly accepted. Rather, our gemara discusses a more limited hoda'a which relates specifically to the unique situation of "shnayim ochazim be-tallit," where neither litigant is more muchzak than his counterpart. However, if only one party is totally muchzak, then this hoda'a is not a sufficient basis to remove the tallit from the possession of the muchzak.
Perhaps we can interpret the hoda'a implicit in the lack of immediate reaction as acquiescence rather than admission. When both parties are in joint possession but neither is muchzak, the decision to divide the tallit is an equitable solution specifically suitable to this unique situation. However, if the tallit is grabbed away unchallenged, we are faced with a new situation whereby the tokef is now in sole possession. By failing to protest, although he did not concede his case, the litigant granted legitimacy to the change in status quo. Hence, the decision is altered and the tallit is left in the possession of the tokef. On the other hand, if an immediate protest is registered, the grabbing is defined as an illegitimate act of aggression which cannot affect the status quo.
Based on this understanding of the sugya, we can explain a difficult passage. When clarifying the problem which troubled R. Zera, the gemara questions: "What case are we referring to? If he remained silent, this constitutes hoda'a, and if he protested what could he have done?" According to Tosafot that the issue of R. Zera is only one of bona fide admission, the end of the gemara should have stated: "and if he protested immediately there is no hoda'a." The phrase "what could he have done" suggests that the protest is effective only because he has no other recourse. On the other hand, based upon our understanding of the Rashba, the only reason it is absolutely clear that the status of joint possession is not altered, is because the victim of the aggression did whatever he could legitimately do (protest) in order to protect himself. Had he had recourse which he failed to utilize, we may define this as acquiescence which legitimizes the change of possession.
Based on this explanation, we can explain the difficulties we raised in Rashi. Although bona fide admission is impossible regarding an objective safek, acquiescence to the action of the kohen is conceivable. Furthermore, such acquiescence may be possible only prior to the shevu'a, when neither party is considered muchzak. After the shevu'a, however, we may consider each party as being muchzak on half. Therefore, a change regarding the status of possession is no longer possible.
In a previous shiur (#10) we noted that the Rashba considers "shnayim ochazim" as a situation where neither party is muchzak. Tosafot, on the other hand, define each litigant as muchzak on half. Accordingly, Tosafot are forced to explain R. Zera as bona fide admission, since it is only effective against a muchzak. The Rashba, however, was free to explain our gemara as dealing with the unique situation where there is no muchzak.
This approach will not resolve the problem we raised in the Rambam. Even if we are not dealing bona fide hoda'a, but rather with acquiescence which allows for an alteration of possession, it should be impossible to grab the tallit back and revert it to its original status since this second act was performed under protest and is therefore illegitimate. Perhaps we can suggest that the Rambam had a third understanding of the hoda'a implicit in the lack of reaction. According to the Rambam, it is neither admission nor acquiescence. Instead, the Rambam interprets this hoda'a as a blatantly complacent response which indicates acceptance, which relieves beit din from interceding on his behalf. Since the litigant himself is unconcerned with defending his possession, beit din is not obligated either. (This approach as well may be limited to our mishna where there is no muchzak and the decision of "yachloku" is merely a reflection of the joint possession.) However, if the complacent party grabs the tallit back, beit din is obligated to get involved in order to defend the non-complacent party.
There is an additional example where the Rambam seems to apply a similar idea with respect to hoda'a. In a case where the plaintiff demands wheat and the defendant denies wheat but admits to barley, the Rambam (Hilkhot Nizkei Mammon 9:11) rules that the defendant is exempt from paying the barley since the plaintiff implicitly admitted that there is no obligation of barley. Nevertheless, if the plaintiff were to grab the value of the barley which the defendant admitted is owed to him, beit din would not take it away from him. Again it is clear that we are not discussing a full-fledged admission according to the Rambam. Rather, by not claiming the barley admitted by the defendant, beit din is removed from the picture, and is not obligated to get involved on the plaintiff's behalf. However, were the plaintiff able to collect this debt not using beit din (i.e. grabbing), it would be a legitimate procedure, since the debt in actuality does exist.
According to our gemara, it is clear that immediate protest is an effective countermeasure to the aggressive grabbing of the tallit. Likewise, there is no doubt that sustained silence is considered as "hoda'a," thereby granting the one who grabbed the tallit full ownership. R. Zera is troubled by the in-between situation of a delayed reaction. Is the initial silence to be considered "hoda'a," or is the ultimate protest effective.
We presented three interpretations regarding the nature of the "hoda'a" discussed in our sugya. The straightforward approach, adopted by Tosafot, explains the hoda'a as the standard "hoda'at ba'al din" - a full-fledged admission. We showed how this interpretation is difficult to apply to our sugya, and why Tosafot were forced to adopt it.
An alternate possibility, suggested by the Rashba, defines the hoda'a as acquiescence which gives legitimacy to the shift in possession. We noted that this explanation limits our discussion to the unique parameters of our sugya, in which there is no muchzak (according to the Rashba).
We suggested a third interpretation in order to explain the ruling of the Rambam. Accordingly, the hoda'a is agreement on the part of the litigant, which subsequently relieves beit din from interceding on his behalf.
Next week's shiur: The Principles of Tefissa Bi-sefekot
1. See the sugya on 6b and Tosafot s.v. Poter.
2. See 102a, Mishna: "Ha-maskir bayit..." and the gemara until "yacholoku ad chodesh ha-ibur."
3. Ketubot 20a, Tosafot s.v. Ve-uki.
4. Rosh, Bava Metzia 1:13.
5. Chidushei HaRamban on our sugya, 6b s.v. Mi-deka'amrinan iy de-ka tzavach ... u-ma she-nira lanu katavnu. (It is advisable to see also the various sugyot quoted in the Rishonim to better understand the background.)
a. In light of the Rishonim above, try to consolidate principles (ekronot) for legitimate tefisa.
b. Try to define why in your opinion, tefisa kodem she-nolad ha-safek or tefisa bi-reshut, could be effective.
c. What is the essential difference between the reason of the Ramban ("milta de-avida le-igluyei") and the reasons for tefisa bi-reshut or tefisa kodem she-nolad ha-safek?