Tefisa in Machloket Rishonim

  • Rav Moshe Taragin


By Rav Moshe Taragin



Lecture #07: Tefisa in Machloket Rishonim



As we outlined in previous shiurim, most RIshonim do not validate tefisa, the ability to unilaterally seize a disputed item after beit din has awarded it to the muchzak in the absence of any alternate evidence.  Most claim that takfo kohen – if a kohen grabs an animal he claims was a firstborn – he would not be allowed to maintain possession.  Some opinions DO claim that a safeika de-dina, a situation in which the facts are undisputed but the halakhic ruling is unclear, may allow for a more successful tefisa.  The Rosh in Bava Kama inferred this from the Rif, and the Yam Shel Shlomo and the Shach attempted to provide the logical basis to distinguish between an empirical safek, in which tefisa would not be operative, and a legal safek, in which case Rishonim are more sympathetic to tefisa. 


There is, however, a third type of safek, about which the Rishonim appear to be even more condoning of tefisa as an option after beit din has awarded the muchzak by default.  A gemara in Ketuvot (47a) discusses dowry payments and a situation in which a husband did not yet collect his dowry before his wife died.  An intricate machloket Tana’im followed by a machloket Rishonim results. Rashi and his grandson Rabbeinu Tam argue whether the husband can claim the dowry after his wife's death. Although Rashi rules that he can, Rabbenu Tam claims that he cannot as the woman’s father is in possession of the money and considered the muchzak.  The Mordechai quotes Rabbenu Shmuel, who allows the husband to seize the dowry from the father by claiming that "I hold as Rashi's position, and therefore am entitled to collect the dowry.”  Effectively, Rabbenu Shmuel validates tefisa in a situation of a machloket RISHONIM.  It seems that tefisa is validated in this instance even if tefisa in the situations of empirical safeikot or halakhic uncertainties is not acceptable.  Somehow, the fact that the dispute emerges amongst the Rishonim enables tefisa.  Rabbenu Shmuel is not clear regarding his logic, but the Shach- in several chapters of his "Takfo Kohen," provides three theories to justify this position.


In his first approach, the Shach returns to Tosafot in Ketuvot (20a), who validated tefisa if the seizer could definitively assert a bari claim explaining his position.  In the example of Tosafot, if the collector of the debt were to definitively prosecute the debt, he would be allowed to seize even if beit din ruled in favor of the defendant.  The problem with this application is that a litigant cannot possibly assert a bari claim in our case because the facts of the case are undisputed; Rashi and Rabbenu Tam merely argue about how to rule under these circumstances. To solve this issue, the Shach poses two assumptions:

1)    Bari claims lodged through the certitude of other's are indeed considered bari.  This question appears in several contexts in shas and the notion that a litigant can pose a bari claim even without PERSONAL knowledge and simply because witnesses support his position is quite feasible. 


2)    The second assumption of the Shach is that a posek or Rishon can serve as the basis of a bari claim.  Just as testimony of a witness is sufficient to generate a legal bari claim, the logical position of Rashi can allow the husband to lodge a bari claim toward collection of his dowry. 

After quoting several opinions in support of this logic, the Shach offers an even more provocative theory.  Tosafot in Ketuvot (20a) offer a second scenario of successful tefisa - even in empirical safeikot.  If the plaintiff seized the money BEFORE the safek emerged, we may be more inclined to allow that situation to persist.  In the situation in Ketuvot, if the plaintiff offered witnesses to notarize the shetar, based on these proceedings collected his funds, and only afterwards contravening eidim appeared to disqualify the shetar, we may allow him to keep the funds.  The malave took possession BEFORE a safek emerged and before the integrity of the shetar was impugned.  Halakha does not tolerate grabbing items AFTER the safek has been recognized and the defendant has been awarded; legally taking possession PRIOR to the development of ensuing safeikot is an entirely different matter.

Basing himself on this Tosafot, the Shach claims that any time a scenario disputed by Rishonim unfolds, we are at pre-safek stage.  Even though Rashi and Rabbenu Tam already lodged their positions hundreds of years earlier, the safek has not fully appeared.  Since the particular judge DOES maintained the right to rule like Rashi, we find ourselves at a pre-safek stage.  As the proceedings develop, each respective position will be considered, but the autonomy of the local judge defines this situation as pre-safek. 

This is a fascinating approach to the evolution of the halakhic system.  According to the Shach, the system is DYNAMIC; even though earlier and presumably greater authorities have already staked out clear positions, the very autonomy of the dayan to “take sides” renders the situation a fresh situation in which the grabber is not disobeying previously arrived at halakhic rulings.

Having asserted this and citing a source that articulates it (Takfo Kohen, chs. 85-85), the Shach launches a third strategy in defending successful tefisa in situations of a machloket Rishonim.  A well known gemara in Bava Kama (27b) asserts the principle of ovid inish dina le-nafshei - a person can sometimes act independent of beit din in defending his property, and even sometimes, in collecting funds.  Typically, these situations are scenarios in which the vigilante who takes matters into his own hands would clearly triumph in beit din.  As the case is cut and dry, he may accelerate the process without waiting for due process.  In theory, this allowance of ovid inish would have no relevance to cases of tefisa in which the "seizer" will not triumph in beit din, in tefisa situations in which the possessor has been awarded the money due to lack of evidence. 

To advance his position, the Shach quotes a Ran in Shavuot that GREATLY expands the horizons of ovid inish, although not necessarily as far as the Shach perceives.  The gemara (48a) cites a dispute between Rav and Shmuel (who in this case agree) and R. Eliezer, with Rav and Shmuel ruling that monies cannot be collected while R. Eliezer rules that they may.  The gemara asserts an interesting conclusion: de-ovid ke-mar ovid u-de-ovid ke-mar ovid.  Basically, the gemara does not prefer one position over the other and allows each subsequent beit din to make a choice.  The Ran, however, claims that most Rishonim favored Rav and Shmuel and never allowed collection.  In fact, the Ran claims that any judge who rules in accordance with R. Eliezer would be acting in violation of the system, and his ruling would be invalid.  In summary, although the gemara never closed this dispute subsequent, Rishonim displayed a clear preference toward Rav and Shmuel. 

Astonishingly, the Ba'al Ha-Terumot claims that although the monies are not legally awarded in this case, they can be seized through tefisa.  Since the gemara originally allowed for R. Eliezer's position, the plaintiff can seize the money based on the ovid inish principle.  This, in and of itself, is a surprising application of ovid inish.  Typically, the Halakha allows ovid inish in situations of clear ultimate victory.  Ovid merely allows expedition of the ultimate process without waiting for due process.  The Ba'al Ha-Terumot allows ovid inish to operate even in situations which do not legally favor the plaintiff! The very fact that the gemara allowed options invites a person to act AGAINST THE SYSTEM and grab the funds HE AND HE ALONE (and of course R. Eliezer) believe are his. 

However, even the Ba'al Ha-Terumot does not discuss a machloket Rishonim.  It would seem that his special allowance speaks only to the SPECIFIC situation in Shavuot, in which the gemara clearly offers flexibility in judgment.  The Ba'al Ha-Terumot is innovative in allowing the plaintiff to defy the preference of Rishonim and stake his claim upon the open-endedness of the gemara.  Taking the Ba'al Ha-Terumot one step further, the Shach claims that the ovid inish principle would allow action in ANY situation of machloket Rishonim - such as the dispute between Rashi and Rabbenu Tam.  Just as the gemara's stated flexibility or non-commitment invites tefisa based on ovid inish, the situation of machloket Rishonim similarly allows an ovid inish-based initiative.  This is a stunning expansion of the Ba'al Ha-Terumot's position – a position which itself is a minority opinion and a novel concept.