Tefisa in a Safek De-Dina

Several gemarot assert the principle of “ha-motzi mei-chavero alav ha-raya” – literally, “one who wishes to remove property from another must bring proof.” If no evidence exists to resolve a monetary dispute, the case is - by default - awarded to the possessor of the item.  But what would happen if the plaintiff – who lost the case because he wasn’t in prior possession - seizes the item, performing an act known as “tefisa”?  After his tefisa, perhaps HE should be considered the muchzak, the possessor, and thus able to compel the defendant to muster evidence to retrieve the item.  Perhaps the “grabber,” the tofes, should be awarded the disputed item/monies since he is now in possession.  The gemara in Bava Metzia (6a-6b) cites various opinions on the matter, but most Rishonim (both Tosafot and the Ramban) believe that such tefisa would not succeed; the original muchzak – the victim of the seizure - is re-awarded the item. 

The original case of tefisa mentioned by the gemara in Bava Metzia (6b) concerned an animal that may have been a firstborn and therefore may be the property of a kohen.  Since its identity is undetermined, the animal is awarded to the original owner, who enjoys current possession.  The kohen’s attempt to grab the item is not halakhically accepted.  Would the same rules apply to a LEGAL safek, a case in which the details of the case are undisputed but the halakha itself is in question? 

For example, the gemara in Bava Kama (18a) deliberates about an unorthodox case of damages.  Typically, a person must offer full restitution for damages committed by his animals.  However, if the animal projected stones in the process of walking, and the stones in turn damaged someone else’s property, the owner must pay for only half of the damage.  This type of damage is known as “tzerorot.”  The gemara ponders a scenario in which the animal violently and unnaturally kicked stones (an event which could not have been anticipated by the owner), causing them to fly and damage items.  Would the payment remain half, or might it be reduced to a quarter of the damages?  The gemara does not resolve this issue. Since the mazik (damager) is muchzak in his monies and there exists a LEGAL question of whether he owes a half or a quarter, he is only compelled to surrender the lesser value - a quarter of the restitution.  In this case, would the nizak (victim) be allowed to seize the half payment? Is the act of tefisa valid if it responds to a LEGAL rather than EMPIRICAL uncertainty? 

The Rif does not cite the laws of tzerorot at all, and the Rosh (Bava Kama 2:3) infers from this that the Rif adopted a complete non-interventionist stance, which would tolerate tefisa.  If the dispute surrounds a legal uncertainty rather than an empirical one, even though we would initially side with the defendant/possessor, the litigant/extractor is able to successfully seize and retain the disputed item.

Interestingly, the Ramban (Bava Metzia 6a) infers the exact opposite view from the Rif.  The fact that the Rif continuously notes the principle of “ha-motzi mei-chavero alav ha-ra’aya” regarding undetermined “teiku” cases indicates that the possessor is awarded with finality; subsequent tefisa is thus ineffective. 

If we adopt the Rosh’s inference that the Rif does not allow tefisa in empirical sefeikot but may sanction it in situations of legal doubt, we must search for an explanatory logic.  If the ha-motzi mei-chavero alav ha-ra’aya award to the muchzak is so strong that it ordinarily bars tefisa, why shouldn’t that be applied to legal questions of teiku, why should tefisa succeed in a legal question where it falls in an empirical one?

An interesting option is offered by the brother of the Kezot Ha-Choshen in his sefer, known as Kuntrus Ha-Sefeikot (4:4), regarding the applicability of chazakot in teiku disputes. For example, if an uncertainty develops about the volume of a mikva, we may employ a chazaka to determine that the water diminished at the last possible moment.  If the mikva was checked on Monday and discovered to be full and then rechecked on Thursday and found to be deficient, we may assume – through the mechanism of chazaka - that it only diminished on Thursday; all those who immersed in the interim are considered tahor.  This is a standard application of a classic chazaka (known as chezkat issur or chazaka ka-maitav).  Several Acharonim (R. Akiva Eiger, Teshuvot 1:37, and the Peri Chadash in his comments on safek safeika section 1) claim that a chazaka cannot be employed to resolve a dispute left as “teiku;” if a legal question arises, we cannot apply the last known status (chazaka) to resolve the teiku. To the Kuntrus Ha-Sefeikot, this suggests a complete “lockdown;” the presence of compelling logic on both sides of the gemara’s halakhic riddle prevents any attempt at resolution.  If a teiku prevents resolution through chazaka application in the realm of issur, it may also inhibit resolution through the concept of muchzak in the monetary sphere.  The inhibited application of ha-motzi mei-chaveiro alav ha-ra’aya may thus open the door to successful tefisa.  Typically, ha-motzi mei-chavero is applied in a full manner; once the current possessor benefits from this full application of muchzak, his opponent cannot reverse the situation through tefisa.  In the unique environment of teiku, however, a FULL implementation of muchzak is blocked (by the trei u-trei lockdown) and tefisa remains an option. 

Precedent for the notion that tefisa works in a situation which inhibits full application of muchzak stems from a Ramban in Bava Metzia (6a).  The Ramban agrees that tefisa should not work, but he must explain a Rashi in Ketuvot (20a), which allows tefisa.  The Ramban dismisses the proof, attributing the successful tefisa in that case to the condition of trei u-trei, a safek in which two witnesses support each side of the dispute.  The presence of eidim supporting each side “bottlenecks” the safek, disallowing full application of ha-motzi mei-chavero and validating future tefisa in such a case. In ordinary cases, however, tefisa does not work.  The Kuntrus Ha-Sefeikot, compares a teiku case to one of trei u-trei.  In a situation of TREI U-TREI, positions of each side stated by witnesses have hindered full muchzak application.  A situation of a halakhic question of sefeika de-dina is similar; the logic on either side is compelling, and the gemara therefore could not reach a final resolution.  This bottlenecked logic may create conditions SIMILAR to trei u-trei, limiting the application of muchzak, which in turn would validate tefisa.  According to the Kuntrus Ha-Safeikot a halakhic teiku resembles trei u-trei, in either case tefisa is sanctionable.

The Shach offers a different logic to explain the efficacy of tefisa in a safek de-dina.  He cites a Yam Shel Shlomo (Bava Kama 2:5), who distinguishes between a teiku situation and a baya de-lo ifshita.  In the former instance, the gemara “closed” the discussion, unwilling to offer a conclusive solution.  Since the authors of the Talmud CLOSED the dialogue, future participants do not possess the right to offer a resolution.  The road to successful tefisa is blocked! Unlike a teiku, in a situation of baya de-lo ifshita, the gemara raises the issue, recognizes the competing logic on both sides, but DOESN'T ACTIVELY CLOSE the question.  Instead, it leaves the question “open-ended,” inviting future discussion and, in the Yam Shel Shlomo’s opinion, future “side-taking.”  Each dayan has the ability to formulate his own personal opinion about the baya de-lo ifshita question.  As the safek remains open-ended and future positions can be staked, tefisa can be asserted. 

The Yam Shel Shlomo bases his position upon a precedent in the Rishonim.  Tosafot (Ketuvot 20a), responding to the same Rashi that the Ramban responded to, claim that any tefisa backed up by a “bari” claim is allowable.  This is a dramatic expansion of the scope of valid tefisot.  According to Tosafot, only the seizure of the kohen would fail because he cannot definitively claim that the animal was his as a firstborn (since he does not possess birthing records).  His inability to legally back up his seizure dooms his tefisa.  All other tefisot accompanied by a “bari” claim are allowable, however.  As long as the act of seizure can be defended by a plausible claim, it is a valid response and not “breaking and entering.”  The Shach and Yam Shel Shlomo claim that any seizure in response to a halakhic safek can be based on a bari claim.  The seizer can assert that he is taking an item, rightfully his because one halakhic 'position' supports his claim.  Even if the tofes is not himself a dayan or even an educated Torah scholar, the very fact that both positions remain assertable, that a talmid chakham COULD take his position, allows the tefisa to be based upon the claim: “I am seizing this item because I am convinced that a particular side in the gemara (which supports my claim) is more compelling. I assert primacy to the logical option that supports my claim.”  This form of tefisa, based upon a legal assertion, is sanctionable. As Tosafot in Ketuvot described, “justified” and “defended” seizures are allowable. 

The Shach basically sides with the Yam Shel Shlomo with one minor difference - he rejects the contrast between teiku and baya de-lo ifshita.  In his view, EVERY TYPE OF SAFEK remains an “open-ended” question and each allows for successful tefisa.  According to the Shach, the authors of the Talmud NEVER sealed a discussion, always allowing future generations to take differing sides and ultimately inviting successful tefisa.  Whether we accept the Shach or the Yam Shel Shlomo, this is a major statement regarding the nature of mesora (the tradition).  Chazal were intentionally non-committal regarding certain issues, desiring, or at the very least allowing, future input.