Tefisa in a Safek De-Dina
By Rav Moshe Taragin
This weeks shiurim are dedicated by Rabbi Uzi Beer in honor of Rachel Beer
Lecture #06: 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 wasnt 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 kohens 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 elses 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
Ramban (Bava Metzia 6a) infers the exact opposite view from the
If we adopt the
Roshs inference that the
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 gemaras 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-raaya 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 Shlomos 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
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.