Tefisa Bi-Sefeikot - Seizure in questionable cases

  • Harav Baruch Gigi


Translated by Dvir Tchelet

Sources and questions for this week's shiur:

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?

            In our sugya the conclusion of most of the Rishonim is that if a kohen seized a questionable bekhor (firstborn), the halakha is that we take it away from him.  This is because tefisa bi-sefeikot (seizure in questionable cases - whether there is a doubt concerning the identity or ownership of an object or if the ruling of the case in general is questionable) is not effective.  However, from other sugyot it seems that tefisa (seizure) is effective.

            In order to clarify this issue, we shall first investigate the law of tefisa in general.

I. Tefisa In General

1.  Seizure with regards to kenasot - fines

            The sugya in Bava Kama (15b) concludes that nowadays we do not judge cases involving fines.  Nevertheless, "if he seizes it (the fine) we do not take it away from him."  This refers to the seizure of palga nizka knasa (the obligation to pay a fine amounting to half of the damages which one's animal inflicted intentionally.

            The Rishonim offered various interpretations of this gemara.  According to Rabbeinu Tam, seizure is effective only if one seizes the animal which caused the damage itself, but if he would seize property amounting to the damages, it would be returned.  Other Rishonim maintain that one may even seize the property of the person who caused the damage (see the Rosh).

            It is possible that the basis of their argument lies in the nature of the fine; is this fine created by the court or is the obligation to pay already existent with the court merely functioning as a body which implements the payment.  However, it is possible that their argument is based on the willingness of halakha to recognize seizure as a legitimate method through which one can collect a debt.

2.  Seizure in a case of kim lei be-darba minei (klb"m - where one incurs two punishments - e.g., the death penalty and a monetary payment - simultaneously and is given the stricter punishment only).

            Rashi's opinion in Bava Metzia (91a s.v. Rava) is that in a case of klb"m, seizure is effective.  Perhaps this is because in principle there already exists an obligation to pay but the court is barred from collecting that payment.  Therefore the person himself can seize that amount.  However, not all Rishonim agree.  It is possible that this argument is also based on whether we view seizure as a legitimate method of collection.

3.  The Rashba in Shevu'ot (31a s.v. Man de-amar) claims that the testimony of pesulei eidut mi-derabanan - witnesses who are disqualified by Rabbinic law to testify, is useful to the extent that if the claimant seized his claim, we do not take it away from him.

            The common denominator in all three cases is that the obligation [to pay] already exists; however, beit din doesn't carry out this obligation for various reasons.  Therefore, the claimant seizes what is rightfully and without a doubt his.

            Our sugya deals with the existence of a doubt and the question is - can one 'seize' or not?

            [There is another unrelated category where tefisa is effective.  If one seizes an object or amount he claims is owed him, in the absence of witnesses, he is believed on the basis of a potential claim that he did not seize the object in question.  For instance, he can claim that the object was always his.  This is known as "migu," and is not directly connected to our discussion.]

II.  Tefisa in Cases of Doubt

            Tosafot (s.v. Poter) question the contradiction between our sugya where tefisa is ineffective (if a kohen 'seized' a questionable bekhor, we take it away from him) and the sugya later on (102b) which discusses one who rents his house out during a leap year, and it is not clear whether the rental agreement was based upon a specified amount for the entire year, or one twelfth of that amount per month.  The argument between the landlord and the tenant is regarding the payment of an additional twelfth for the thirteenth month, in the event that the year was subsequently proclaimed a leap year.  The gemara concludes that if the owner of the house comes to claim rental payment at the end of the additional month, the tenant is not obligated to pay.  Ostensibly, this is due to the fact that we view living in the house during that extra month as tefisa. 

            [Tosafot's question was based on the assumption that the owner coming at the end of the month is an application of tefisa.  However it is possible to understand that the sugya doesn't deal with tefisa at all, but rather with the question of "muchzakut" (the status of assumed owner).  With regards to the land itself, the owner is considered "muchzak," whereas concerning the rental payment the tenant is the assumed legal owner.  If this is so, this sugya has nothing to do with tefisa, which means seizure from the "muchzak."]

            Tosafot answer this question in two ways:

1. Tosafot in our sugya explain that in the case of the house, the tenant entered lawfully, hence the tefisa was a legal act, as opposed to the case of the kohen, where the legitimacy of the tefisa itself is questioned.

2. Tosafot in Ketubot 20a (s.v. Ve-oki) explain somewhat differently.  They suggest that by failing to demand payment immediately, the owner of the house was "modeh" - admitted to the claim of the tenant.  It is difficult to interpret Tosafot as referring to bona fide admission on the part of the owner, expressed implicitly by the lack of immediate action.  Perhaps the "hoda'a" referred to is acquiescence to the tefisa of the tenant, thereby granting the seizure legitimacy.  (See previous shiur).  According to this explanation, there is a basic similarity between these two answers offered by Ba'alei Tosafot.  Both deal with the legitimacy of the tefisa in the specific case on 102a.

            What is the significance of "tefisa bi-reshut" lawful seizure according to Tosafot?  There are two possible explanations of  this law:

1. Tefisa bi-reshut isn't considered tefisa at all, but rather transforms the seizer into a legal owner due to the acquiescence of his opponent.

2. Tefisa bi-reshut is legitimate although still viewed as tefisa.  Nevertheless, since it is performed in a civilized manner and not accompanied by force and violence, beit din is prepared to recognize such a tefisa.

            The halakhic differences between these two explanations are as follows:

1. Is this "lawful seizure" subject to the same restrictions which are imposed on regular tefisa.  For instance according to those who hold that tefisa is ineffective with respect to land, would the same be applied to tefisa bi-reshut.

2. What is the definition of "lawful seizure?"  The Terumat Ha-deshen stipulates that "lawful seizure" is only true of a case where the object was given to the claimant so that he may have full ownership over it but not if it was given merely as a deposit.  If "lawful seizure" is viewed as legitimate due to the tranquility of the act, seizure of a deposit would also qualify.  However, if "lawful seizure" is meant to transform the "tofes" into a legal owner, the qualification of the Terumat Ha-deshen is reasonable.

            An additional qualification found in the Rishonim concerning the permission to seize distinguishes between tefisa before a doubt arises and afterwards (see Tosafot here and in Ketubot).  We can analyze this using a pattern similar to the one above.  Accordingly, such a seizure (i.e., before the doubt arose) is effective because it is considered as legitimate, since the restriction on tefisa is applicable only when one uses violent means which is applicable only after the questionable state was proclaimed.  However, at a preliminary stage, tefisa is legitimate and the court recognizes it as such.  On the other hand, one can view such seizure (i.e., before the doubt arose) as one which transforms the claimant into the muchzak and doesn't constitute tefisa whatsoever.

            A possible halakhic difference could be concerning the definition of the time of inception of the safek - doubt.  This point is disputed by the Shakh in his work "Takfo Kohen" and the "Kuntras Hasefeikot."

            According to the Shakh, whenever there  is an objective doubt with regards to the correct halakhic ruling, as opposed to a doubt regarding the situation - what actually occurred - tefisa is not possible before the doubt arises.  He argues that this type of objective safek (with regards to the correct halakhic ruling) is one which exists already in the minds of the poskim, and pre-dates the specific case.   The "Kuntras Hasefeikot" however explains that the time of the inception of the doubt refers to the subjective doubt which takes effect in front of the court in this particular case.

            Apparently, they argue based on their respective interpretations of the significance of this factor.  According to the Shakh, tefisa is legitimate only if it transforms one into a muchzak which cannot be accomplished if the safek is an objective legal doubt.  After all, it is impossible that the tefisa precede this halakhic dilemma.  However, the Kuntras Hasefeikot views tefisa as legitimate if it is done before beit din is aware of the safek.  This is applicable even to cases of objective legal doubts, and is reasonable if we are merely trying to define the tefisa as legitimate due to the lack of force.

            If we consider both "lawful seizure" and "seizure before the inception of the doubt" as a means of transforming the claimant into a muchzak, the implication is that we totally disqualify the possibility of tefisa and allow only for muchzakut.  However, according to the alternate approach, the court is prepared to allow tefisa in certain instances: 1. when using peaceful methods, and 2. before the case is brought to them.  In other words, basically tefisa is effective, as long as it is not accompanied by force.

            There is a further division amongst the Rishonim regarding tefisa, distinguishing between a definitive claim "ta'anat bari" and a non-definitive plea "ta'anat shema."

            Here one can say that tefisa based on an uncertain claim is not considered tefisa  at all.  If the litigant himself is unsure if he deserves the object, the mere act of grabbing the object may not grant him the status of a "tofes."  Alternately, he may nonetheless be considered a "tofes," but Chazal are not prepared to recognize tefisa performed under these conditions.  (See Tosafot Ketubot 20a.)

            The Ramban, as opposed to Tosafot, recognizes tefisa in only two situations:

1. Tefisa in a case of "trei u-trei" (a safek engendered by contradictory testimony).  This is based on the opinion that "trei u-trei sfeika deoraita" - contradictory testimony creates a safek on the Torah level, and therefore we do not follow any chazaka.  Hence, the Ramban concludes that the chazaka normally established by possession, is in this unique case ignored.  Consequently, seizure is effective.

2. Tefisa in a matter that may be ultimately clarified "milta de-avidi le-igluyei."  This situation is radically different from the previous cases, which form conditions whereby tefisa is a legitimate option.  But here, according to the Ramban's interpretation, we deny any type of legitimization of tefisa.  Rather, we refrain from responding to it immediately since in any event the truth may be revealed, and we don't bother beit din to deal with it now.  Instead, we leave it till later when it does in fact become clear.

III.  The Extent of Ownership of the Tofes

            In those cases where we concluded that tefisa is effective, we must investigate and define the rights of the 'tofes' relative to the object.  Does the tofes achieve a complete state of ownership?  Tosafot (Ketubot 20a s.v. Ve-oki) base the halakha of tefisa on the general principle of "ha-motzi me-chaveiro alav ha-ra'aya," which defines the one in possession as the owner (see an earlier shiur).  They then proceed and equate tefisa with "kol de-alim gvar" in which the court at times allows the litigants themselves to vie for ownership of the object in question (see here).

            The equation presented by Tosafot implies a radical formulation of tefisa.  Normally, we assume that after having seized the object (in cases where tefisa  is effective), the object is under the complete ownership of the tofes.  However, the comparison to kol de-alim gvar indicates that we are not talking about complete ownership.  This is especially true according to the opinion of Tosafot (6a s.v. Ve-ha hakha) that kol de-alim gvar enables constant repossession of the object.

            On the other hand, it should be noted that in tefisa there are no instructions promoting seizure.  Ex post facto, if  the claimant 'seizes,' we do not take it away from him.  However, concerning kol de-alim gvar the litigants are instructed to 'fight it out.'  This may indicate that regarding kol de-alim gvar, the resultant state of ownership is more solid that normal tefisa.

            In fact, Tosafot in Bava Metzia (ibid.) claim that if someone seized an object via kol de-alim gvar, he can dedicate it [to the Temple].  Furthermore, if he does this, the other litigant cannot 'seize' it back from him.  It seems therefore that Tosafot do not accept the understanding that kol de-alim gvar is rooted in beit din 'leaving the scene,' but rather kol de-alim gvar is considered a positive psak (ruling) of the beit din, and is a way to arbitrate certain specific cases.  Hence, as long as the object remains in his possession, the 'victor' attains ownership of the object.  The same therefore can be applied to Tosafot in Ketubot concerning tefisa based on ha-motzi me-chaveiro.  Accordingly, beit din recognizes the tofes and awards him the status of owner ex post facto.

            The Rambam (Hilkhot Chovel U-mazik 4:11) rules that if someone de-toothed his slave and subsequently blinded his eye, the court will free the slave because of the tooth.  However, there is a safek regarding the payment of damages for the eye, since the slave was not totally free at the time he was blinded.  Therefore, the Rambam rules that if the slave seized the amount of the damage, it is effective.

            However, in Hilkhot Eidut (21:4) the Rambam rules that if witnesses testified that someone detoothed his slave and then blinded his eye, and are later convicted as "eidim zomemim" false witnesses (who receive the same punishment they intended to impose on someone else), they have to pay to the owner both the worth of the slave and the amount of damages for the eye.

            The Ra'avad (ibid) asks why the witnesses are obligated to pay for the damages to the eye, since their testimony alone did not obligate payment of said damages, due to the safek in Hilkhot Chovel U-mazik.  Evidently, the Ra'avad understood tefisa as an independent act of the claimant which has no connection to beit din or to the witnesses.  Therefore, it is absurd to demand payment of the eye damages from the eidim zomemim.

            However the Rambam apparently understood that tefisa (in this case) gets its validity from the beit din.   It is considered as if beit din, based upon the testimony of the witnesses, gave a ruling allowing for the recourse of tefisa.  Therefore, we can obligate the witnesses who generated this ruling through their false testimony, to pay.  This understanding would explain why in many instances of questionable cases, the Rambam emphasizes "and he SHOULD seize etc...."

            There is room to question whether the Ra'avad totally disagrees with the Rambam, or perhaps his argument is limited to a case of "sefeika de-dina" an objective doubt as to the correct halakha.  In the case of a regular safek, the Ra'avad may agree that there is a positive ruling on the part of beit din to 'seize.'  Only in cases similar to that of the slave (which is a sefeika de-dina), beit din will not be prepared to give a ruling since they themselves do not know the law.

            We already noted the opinion of the Rashba, that witnesses who are disqualified by Rabbinic law, are nonetheless accepted partially, i.e., based upon their testimony tefisa is possible.  From this, it also appears that tefisa is not an extra-legal option.  Rather, beit din, based upon actual testimony give a ruling to 'seize.'

            Our discussion can be furthered concerning the effectiveness of tefisa in cases of sefeika de-dina.  For further reference see:

Rambam and Ra'avad Hilkhot Geneiva 2:12, Tosafot Gittin 14b s.v. Ve-chakhamim omrim.  See also Rosh Bava Kama 2:2, Rambam Hilkhot Nizkei Mamon 2:5-6.  


Sources for next shiur:

1.  Gemara 6b "Amar lei Rav Chananya ... ve-hen shelo."

2.  Tosafot s.v. Le-potro, Ritva s.v. Hadar.

3.  Mishna Bekhorot 58b, Rashi (mi-ktav yad) s.v. Kafatz.

4.  Bekhorot 59a "amar Rava ... minyan haraui poter"

5.  Mishna Nedarim 18b, Tosafot s.v. Ve-im shel ma'aser.



1.  What is the explanation for Rava's halakha "minyan ha-raui poter?"

2.  Why, according to Rava, is the tenth animal considered as ma'aser automatically?

3.  Based upon what factor is an animal categorized as ma'aser beheima?

4.  Does this correspond to the method through which the status of ma'aser dagan is attained?

5.  Why is ma'aser beheima considered "davar ha-nadur?"