Three Debates Regarding the Nature of Muchzak

The first perek of Bava Metzia is one of the “busiest” perakim in Shas. The mishna introduces a dispute about a mutually seized item and determines that the contested item is split, with each party taking an oath. This mishna and the ensuing ones yield debates about a range of Choshen Mishpat topics. It is difficult to identify another perek in Shas that is so replete with central topics of to’en ve-nit’an (the laws of monetary litigation).

Three different sugyot in this perek address one common theme – the halakha of ha-motzi mei-chaveiro alav ha-ra’aya. In this shiur, we will address the nature of this rule through the prism of these three sugyot.

The initial question about ha-motzi mei-chaveiro and the one presented directly in the mishna – concerns the status of a contested tallit. Does Halakha view each disputant as partially muchzak in the part of the tallit that they are grasping? Does the split of the tallit reflect the fact that each is considered a “muchzak” (halakhic possessor) on the part he clutches? Or is this mutual seizure rendered halakhically irrelevant, so that neither is considered muchzak? If that is the case, the tallit is split procedurally because it is disputed. How does Halakha apply the status of muchzak to a jointly held tallit?

This question affects many secondary questions, including HOW the tallit is split. The gemara (7a) introduces an alternative strategy to the 50/50 split of the mishna. If the ACTUAL tallit is jointly held (as opposed to the mishna’s scenario, in which each disputant is clutching the fringes), each person receives the part that they are actually holding, and the REMAINDER is split evenly. This may reflect the fact that the two parties are each considered muchzak in that part of the tallit they are physically clutching and are therefore awarded that part, at least when they are actually holding the tallit. Only the unclutched part is divided evenly.

Additionally, this question may impact the nature of the shevua that the mishna imposes. If the two parties are each considered completely muchzak in the part that they are grasping, the rule of ha-motzi mei-chaveiro alav ha-ra’aya should award that section WITHOUT the need for a shevua. Just as a defendant is awarded claimed money without need for shevua, each disputant in the case of the tallit should receive his share without a shevua. In fact, the Rambam lodges this claim, (demanding an oath only about the part of the tallit which isn’t physically clutched) perhaps signaling that he views each party as a partial muchzak. If a shevua is still required (as Tosafot claim), one of two possibilities is feasible:

1. Their joint hold cancels any notion of a muchzak. Since neither is considered muchzak, beit din can only awards the tallit to a non-muchzak, if shevua is taken.
2. Even though they are each considered a partial muchzak, the shevua is still required. As the gemara twice comments (3a, 5b), the shevua described in the mishna was imposed to prevent further instigated aggression. If each disputant were awarded his share of the tallit without a shevua, people would be encouraged to grab other people’s items, expecting to receive at least a part of the item without the threat of a shevua. Accordingly, the shevua is not necessary to JUSTIFY the award of the tallit to each disputant; they are each considered muchzak and deserve their share. Rather, the shevua is imposed on the two parties to deter FUTURE aggression.

This question of how to understand or map the case of the jointly held tallit may depend on the nature of muchzak and ha-motzi mei-chaveiro alav ha-ra’aya. Classically, muchzak is understood as a baseline PROOF of ownership in the absence of more concrete or compelling proof. Obviously, more convincing proof overcomes this default proof, but in the absence of solid proof, the muchzak enjoys a built-in ra’aya of ownership. By contrast, the principle of ha-motzi mei-chaveiro may operate not as PROOF, but as a default STATUS QUO, which remains unaltered in the absence of convincing evidence. The muchzak is awarded the disputed item or money not because of proof, but because beit din maintains the status quo when there is no proof.

Perhaps the status of a jointly seized garment depends upon which aspect of the muchzak is the primary force. Neither of the disputants holding the garment has any proof of ownership. Typically, exclusive possession suggests that the person purchased or manufactured the item, but in this scenario, we KNOW how the item came into the joint possession of the parties – it was “found” and lifted by one of the disputants prior to the lifting of the other disputant. If ha-motzi mei-chaveiro is a baseline PROOF, the situation of shenayim ochazin would yield no muchzak. If, however, the concept of muchzak simply maintains a status quo, we can view a jointly seized garment as reflecting a split muchzak. The status quo whereby each is holding half can be preserved. Each is holding on to half the garment, and we can apply the muchzak principle to each person respectively. Thus, the decision as to which aspect of ha-motzi mei-chaveiro is dominant may affect our evaluation of the jointly held garment, which in turn may dictate both the extent of the ruling of yachaloku as well as the nature of the shevua.

A second question about ha-motzi mei-chaveiro emerges from a question that Tosafot (2a) pose about the use of migu. The second clause of the mishna discusses a distribution in which – based on their different claims – one party receives 75% of the disputed garment and the other receives 25%. Tosafot assert that the receiver of 25% should receive 50% and not 25%, since he could have registered a more ambitious claim that would have netted a 50/50 distribution. This is a migu scenario, the ability to triumph based on the potential to register an alternate claim that would have more easily attained a legal victory.

Tosafot reject this ability since it would be employing a migu to extract 50% of the garment from the other disputant, and typically (at least according to Tosafot) migu cannot be used to extract possessed items from muchzak defendants. Interestingly, Tosafot assume that each party is a muchzak over the entire tallit – NOT MERELY over the 50% that they are physically grasping, but of the ENTIRE garment. Attempting to legally secure 50% of the tallit from a disputant would be employing migu to OPPOSE a muchzak and extract something from his possession.

This represents a third option in addition to the two aforementioned alternatives. We previously considered the possibilities that NO ONE is considered a muchzak and that they are EACH considered muchzak upon the PART they are clutching. We now have a third possibility – that they are EACH considered muchzak upon the ENTIRE item.

Tosafot’s position that migu cannot overcome a muchzak and extract money is by no means universally accepted. The Ramban raises strong objections. Perhaps their debate surrounds the nature of muchzak and which element fundamentally drives the rule of ha-motzi mei-chaveiro alav ha-ra’aya. Perhaps Tosafot believe that the rule of ha-motzi preserves the status quo until actual evidence has been introduced. Migu is an attempt to “psychoanalyze” the litigant based on his failure to assert a more convenient claim. This analysis may establish his truthfulness, but no ACTUAL evidence has been introduced. In the absence of evidence, the status quo is maintained even if migu proves his honesty.

Perhaps the Ramban, in contrast, believes that the rule of ha-motzi mei-chaveiro acknowledges a baseline PROOF suggesting that the possessor actually owns the item. In theory, this baseline proof may be overridden by the migu indicating the veracity of the tovei’a’s claim and counteracting the low-level default proof that we normally use to award the possessor. The decision about whether to employ a migu le-hotzi may thus be dependent upon which factor of the muchzak is the primary force.

It is possible that Tosafot’s view disqualifying a migu le-hotzi would apply even if muchzak reflects proof. As stated above, it is conceivable that the status quo remains unchanged until new evidence has been introduced, and migu does not represent the introduction of new evidence. But one could argue that even if ha-motzi mei-chaveiro constitutes a low-level proof of ownership, migu is not strong enough to overcome that proof. Thus, the debate about which element of muchzak is primary may not influence the question of applying migu le-hotzi. We may rule unilaterally that migu cannot be applied to extract money; depending of which aspect of ha-motzi mei-chaveiro is at play, we may understand the failure of migu le-hotzi differently.

In other words, is migu not STRONG ENOUGH to extract money, or is it IRRELEVANT to the process of monetary extraction? If the muchzak default is based on preserving the status quo, we may render migu IRRELEVANT, since it does not represent the introduction of evidence. By contrast, if muchzak is primarily a proof, migu is a suitable tool, but is insufficiently strong to overcome the proof of possession.

This question – not WHETHER migu overcomes muchzak, but WHY it DOESN’T– may have an interesting ramification. If migu is rendered irrelevant by the status quo, it would not overcome the muchzak even when coupled with additional forces. If, however, a migu is RELEVANT to extracting money from a muchzak but is insufficiently strong to do so, perhaps a migu COUPLED with an additional force would be successful in overcoming the muchzak. Tosafot in Bava Metzia identify migu in conjunction with a contract as one instance in which a migu CAN extract monies. Similarly, several Rishonim interpret a gemara in Ketuvot (12b) as validating a migu in conjunction with other forces to overcome a muchzak.

A third issue in the first perek of Bava Metzia that revolves around the understanding of ha-motzi mei-chaveiro is the halakha of tefissa, unilateral seizure of disputed items. In a previous shiur, we investigated the manner in which the success or failure of tefissa may be dependent upon the primary factor driving the halakha of ha-motzi mei-chaveiro alav ha-ra’aya.