Yachloku - daf 2a

  • Harav Baruch Gigi

Translated by Zev Jacobson

SOURCES FOR SHIUR #01:

This year we will be starting to learn the FIRST perek of Bava Metzia.  The coming shiur will deal with the din of "yachloku" in the mishna.

SOURCES:

  1. Mishna daf 2a (It would be worthwhile to quickly learn the Gemara from 2b "leima natnitin d'lo keSumchus" until 3a "behadei hadadi agbahuha".
  2. Tosafot s.v. Ve-yachloku, Rashi s.v. Be-mekach u-vemimkar.
  3. Bava Batra daf 34b "Ha-hu arba" until daf 35b "ve-i de-mar lo de-mar." Rashbam; Tosafot s.v. Ha-hu Arba.
  4. Rosh Bava Metzia 1:1.
  5. Ramban Bava Metzia daf 2a s.v. Ve-yachloku

QUESTIONS:

  1. What is the preferred method of dealing with the situation - chaluka or kol de-alim?  Why?
  2.  What is unique about the case of Shenayim Ochazin according to Tosafot?
  3. How do Tosafot, the Rosh, and the Riva deal with the difference between our sugya and that of Maneh Shelishi?

 

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            The mishna (daf 2a) discusses a scenario where two people appear before beit din, clutching onto a talit (garment).  Each one claims that he found the talit, thus granting him sole ownership thereof.  Since there are no witnesses to verify or disqualify either position, an oath is taken by both sides and the court is obliged to split the disputed talit down the middle, awarding half to each litigant.  This verdict is termed "yachloku."  [Note: In practice, the item is not physically divided.  Rather, it is sold and the monetary value equally distributed.]

            In order to explore the logic behind the ruling of the mishna, it is worthwhile to examine a similar scenario which, nonetheless, leads to a different verdict. The gemara (Bava Batra 34b) deals with a case where two litigants each claim ownership over a boat (arba).  Since neither claim can be conclusively proven, the court decides upon a verdict of "kol de-alim gvar" and whoever is "stronger" gains possession of the arba.

            In both cases, there is a dispute between two litigants concerning the ownership of an object.  Although conclusive evidence cannot be brought in either case, nevertheless beit din's verdict is not consistent.  What is the difference between the scenario of shnayim ochazin and that of ha-hu arba?

I.          TEFISA

            One obvious difference between the two relates to the issue of tefisa (physical holding of the object).  In Bava Metzia, both are HOLDING onto the talit (ochazin), whereas in Bava Batra neither is holding onto the arba.  There are a number of ways to explain why this point is significant:

A. Chazaka

            It is a well-known rule in Shas that "chazaka - kol ma she-nimtza tachat yado shel adam shelo hu" - we assume ownership by virtue of physical possession.  (We will refer to this as "chazaka"). Consequently, "ha-motzi me-chavero ALAV ha-ra'aya" - the onus of proof rests upon the litigant who wishes to GAIN possession (and not upon the litigant who already HAS possession).  How are we to view the situation where two litigants are both grasping onto a talit?

            It is possible to explain that when TWO people are holding onto the same object, they each have a chazaka that half the object belongs to each.  In the words of Tosafot (s.v. Yachloku), beit din themselves can testify that half belongs to one litigant as he is holding onto it, and half belongs to the other, as he is holding onto it, so long as the claimant fails to provide evidence.

            According to this explanation, the verdict of chaluka is merely a statement of fact and does NOT represent an actual change in status.  Both litigants were considered to have ownership over half the talit, even BEFORE setting foot into court.  Thus, beit din is never presented with a safek (doubt) at all.  It is as if two people strolled into court, each holding half a separated talit, claiming ownership thereof - there would be no need for beit din to say anything.

            In the case of the arba, however, neither litigant is holding on to the boat.  Consequently, we cannot assume that it belongs to BOTH of them and we are unwilling to hand down a verdict of yachloku.  (We will elaborate on this point shortly.)

B.  Possession

            The Ramban, while basing himself on the premise that BOTH have a chazaka, takes a slightly different approach in explaining the sugya: We are not entirely convinced that half the talit belongs to one and half to the other.  Nevertheless, since each one IS in possession, as it were, over half the talit, we are unwilling to take out of his hands that which he has possession over.

            According to this approach, beit din IS faced with a safek.  Nonetheless, they are UNWILLING to change the status-quo without sufficient incentive and ha-motzi me-chavero ALAV ha-ra'aya.  This is despite the possibility that one of the litigants may lose out unfairly.  In distinction to Tosafot, Ramban believes that chaluka does not reflect maintaining a legal status which exists before the litigants come to court.

            In the case of ha-hu arba, where there is NO tefisa, beit din are prepared to take the chance of deciding "kol de-alim" as they are NOT unjustly removing the boat from the possession of one of the litigants - it is in the possession of neither.  Furthermore, there is a chance that the actual owner will triumph and gain the upper hand - a possibility that is not catered for in the case of shnayim ochazin.

            At the root of the argument between Tosafot and the Ramban is the possibility of applying the chazaka of "Kol ma she-nimtza tachat yado shel adam shelo hu" to the case of "shnayim ochazin."  It is clear that we cannot award the assumed status of owner of the talit to both litigants, due to the inherent contradiction involved.  Therefore, even Tosafot only apply the chazaka partially; each litigant is assumed to own only half of the talit.

            However, even this partial application is difficult, since it runs counter to objective reality.  Given the claims of the ba'alei din, each of whom claims full ownership, the talit probably belongs totally to only one of the litigants.  Tosafot solve this problem by adding the qualification of "chaluka yekhola lihiyot emet," that it is possible (though not probable) that each party owns half of the tallit.

II.         RAMAI

Tosafot (Bava Batra 34b s.v. Hahu) quotes a different distinction between cases of yachloku and cases of kol de-alim gvar, in the name of the Riva. In our case of shnayim ochazin, despite the contradictory claims, it is quite possible that neither party is lying intentionally. It is quite possible that both grabbed the garment around the same time and each one thinks that he acquired it first. Thus, beit din is prepared to hand down a verdict of yachloku.  However, in the case in Baba Batra, it is clear that the arba belongs to only ONE of the litigants and that the other is a lying.  It is therefore fitting that beit din not award each litigant half of the object as they will most definitely be promoting deceit by awarding the cheater.

            It can be suggested that the various opinions mentioned result from a fundamental argument as to the preferred verdict of beit din.  In a situation where it is impossible to decide between litigants, perhaps it is preferable to divide the money.  This is the fairest solution; however, it almost certainly entails a compromise and most probably veers from the objective truth.  On the other hand, it may be preferable to allow for the possibility of being absolutely consistent with the objective reality, despite the fact that in so doing there is the danger that the rightful owner will end up empty-handed.  Based on various comments, it seems from the Rosh (that we favor the verdict of kol de-alim over yachloku as there exists a chance that the REAL owner will triumph.  (This is based on the theory that the real owner will display more tenacity to gain what is rightfully his than the usurper.)  Nonetheless, we decide yachloku in the case of shnayim ochazin as we are unwilling to make one side lose that which is already in his possession.  Similarly, Tosafot and the Ramban apply yachloku only because of ochazin, but do not see division as a preferred solution resulting from the safek itself. 

            The impression gained from the Riva (Tosafot Bava Batra 34b) is that we favor the option of chaluka.  Nevertheless, in the case of ha-hu arba, since one of the sides is definitely lying, we refuse to award the deceit.  Therefore, beit din is forced to give up the preferred option of division, in favor of the less palatable kol de-alim gvar.

Summary

            When two litigants forward contradictory claims and there is no basis for preferring one over the other, beit din is faced with a dilemma.  Should they adopt a ruling which aspires to be fair but does not make a serious attempt at reflecting objective truth?  Or perhaps beit din should aspire to truth, although this entails a rejection of an even-handed solution.

            These conflicting approaches are reflected in the question of yachloku (fairness) versus kol de-alim gvar (an aspiration to or possibility of truth).

            We suggested that the Riva basically prefers yachloku.  However, if one of the litigants is a cheat, beit din may be forced to adopt the less preferred solution of kol de-alim gvar.

            Tosafot and the Ramban, on the other hand, prefer to keep the hands of beit din clean by ruling kol de-alim gvar.  However, beit din must rule yachloku in cases of tefisa.  According to Tosafot, this is because tefisa creates a chazaka whereby each is assumed to be owner of half.  Therefore, yachloku is a natural outgrowth of the pre-existing legal state.  On the other hand, Ramban views tefisa as a factor which ties beit din's hands, preventing them from applying the preferred option of kol de-alim gvar.

 

Sources and Questions for next week's shiur:

Sources:

1. 2a "Reisha b'metzia … umi hu ba'al korcho".

2. Rashi 2a s.v. Be-mekach u-mimkar, Tosafot 2b s.v. Ee tana.

3. 3a "Leima matnitin ... k'dishnin me-ikara".

4. Ritva "neima matnitin … m'dlo adkiru hachi b'gm' ", Rosh siman 1 v'lav davka b'mitzia … shehu shel echad mehem".

5. Ramban 2a "ve-yesh omrim ... lav de-mar,".

Questions:

1. If each of the litigants holding on to the talit claims: "I wove it," what is the halakha?  According to Rashi?  According to Tosafot?  According to the opinion quoted in the Ramban?

2. Do R. Yossi and Rabanan agree on principle, or do they have different conceptual understandings of "yihyeh munach?"

3. Is the gemara on 3a more compatible with the opinion of Rashi or Tosafot or the opinion quoted in the Ramban?