Yehei Munach Ad She-yavo Eliyahu
This week’s shiurim are dedicated in loving memory
of Yehuda Nattan Yudkowsky z”l whose yahrzeit is 17 Cheshvan
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,".
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?
Our mishna applies yachloku where the two litigants holding on to the talit claim "I FOUND it first." There is a debate among the Rishonim concerning a case where the respective claim of the litigants is "I personally WOVE it" - "ani aragtiha." Rashi (2a s.v. Be-mekach) maintains that since one of the claimants is telling an outright lie, yehei munach is applied and beit din confiscates the talit pending clarification. Tosafot (2b s.v. Ee) argue that although one of the litigants has intentionally submitted a false claim, the talit should nevertheless be divided equally.
This argument between Rashi and Tosafot revolves around the conditions which are necessary to generate a decision of yehei munach. According to Rashi, if beit din is confronted with a case in which one of the two claimants is lying intentionally - vadai rama'i - yehei munach is applied.
According to Tosafot (2a s.v. Ve-yachloku) however, the criterion for yehei munach is not the presence of a vadai rama'i, but rather ein ha-chaluka yekhola lihiyot emet - the division has no possibility of reflecting objective reality. For instance, if one of two people deposited cash with a third party for safekeeping, and BOTH claim legal ownership of the money, a decision of yehei munach is rendered. This is because there is no legal method to effect a kinyan on money that was given to a third party. Therefore, since the money belongs only to the party that initially deposited the money, division can not possibly reflect objective reality. However, in our case, although someone is definitely lying, it is nevertheless possible that half of the talit was sold after being woven, and consequently yachloku is applied.
This debate between Rashi and Tosafot must be examined against the backdrop of the sugya on daf 3a: The gemara explains how R. Yossi and Rabanan can agree with the ruling of yachloku in our mishna, despite their decision of yehei munach in the case in which money was deposited. Rabanan rule yehei munach only when yachloku cannot be representative of reality. However, in the case of our mishna, it is possible that the talit belongs to both litigants and yachloku is, therefore, a viable option. R. Yossi, on the other hand, limits yehei munach to a case of vadai rama'i, as opposed to our mishna where both litigants may have lifted the talit simultaneously.
There seems to be a parallel between the argument of R. Yossi and Rabanan and that of Rashi and Tosafot: According to Rabanan, yehei munach is applied only when yachloku is an impossibility (Tosafot). According to R. Yossi, yehei munach is applied whenever there is a situation of vadai rama'i (Rashi). Why does Rashi seem to adopt R. Yossi and reject Rabanan (see Maharam Shiff? Prior to attempting an explanation of Rashi, we should analyze the relationship between R. Yossi and Rabanan.
R. Yossi and Rabanan
The argument of R. Yossi and Rabanan focuses on a case in which two people jointly deposited money into the care of a guardian. One owned one hundred of the deposit and the other two hundred. The two depositors subsequently argue, each claiming the larger sum, and the guardian is unable to resolve their dispute. Rabanan rule that one hundred should be returned to each of the litigants, while the remaining money should be frozen - yehei munach. This opinion is reasonable, since there is no doubt that each of the two parties deposited at least a hundred. The entire dispute is limited to the third hundred. Nevertheless, R. Yossi insists that none of the money should be returned.
It is quite clear that R. Yossi's position is not due only to the safek as to who is the rightful owner of the funds. After all, there is no doubt whatsoever with regard to two out of the three hundred. Apparently, R. Yossi feels that all the money in question should be confiscated, either as a sanction to force the dishonest party into admission, or as a knas (fine) to punish the dishonest party – the rama'i. (This knas is applied even though the innocent party victimized by the rama'i will lose as well.) In either case, R. Yossi's sanctions are applicable only in situations where one of the parties is intentionally dishonest - vadai rama'i.
Rabanan, on the other hand, are unwilling to confiscate money that can be returned to the rightful owner. Perhaps Rabanan view yehei munach on parallel lines to R’ Yossi, and therefore apply this halakha only in situations of rama'i. However, as opposed to R. Yossi, they argue that it is improper to penalize both rama'i and victim in order to punish the rama'i. Nevertheless, Rabanan agree to apply yehei munach in order to prevent the rama'i from profiting. According to R. Yossi it is crucial to ensure that the rama'i is penalized, therefore, R. Yossi applies yehei munach to the entire sum of three hundred. Rabanan, on the other hand, limit yehei munach to only one hundred.
Alternately, we can claim that Rabanan totally reject R. Yossi's understanding of yehei munach. They maintain that the purpose of yehei munach is not a way of dealing with a rama'i. Rather, yehei munach constitutes an independent solution to a monetary safek. Accordingly, yehei munach should be compared to, and contrasted with, yachloku and kol de-alim gevar. Obviously, based upon this understanding, Rabanan would apply yehei munach only to the third hundred regarding which there is a safek. R. Yossi's application of yehei munach to the first two hundred, about which there is no doubt, not only extends yehei munach beyond the parameters set by Rabanan, but represents a conceptual alteration of Rabanan's understanding.
Clearly, these two options parallel Rashi and Tosafot. According to Tosafot, yehei munach is applied even if there is no rama'i. Apparently, Rabanan totally reject R. Yossi's understanding. For Rabanan, yehei munach has nothing whatsoever to do with rama'i. They view yehei munach as a possible decision rendered in cases of safek, which is applicable only when division on the objective plane is impossible, and yachloku is not a viable pesak. Therefore, returning to the case of "I wove it," even though each litigant claims that he wove the talit personally, it is nonetheless possible that the talit was partially sold and belongs equally to both. Hence, since it is possible that they share possession of the talit, the decision of beit din is yachloku.
Rashi, on the other hand, believes that the presence of a vadai rama'i automatically generates a decision of yehei munach. True, R. Yossi, as opposed to Rabanan, penalizes the rama'i even with regard to funds which clearly belong to him. Rabanan agree that yehei munach is a method reserved for a vadai rama'i, albeit one more moderate and hence limited than R. Yossi. Therefore, Rashi maintains that in the case of "I wove it" the din is yehei munach.
Despite the above analysis, we remain puzzled by the gemara on 3a, which clearly distinguishes between R. Yossi and Rabanan on the conceptual level in accordance with the understanding we ascribed to Tosafot. Vadai rama'i, as the distinction between yehei munach and yachloku, is suggested only according to R. Yossi. Rabanan apparently would apply yehei munach to our mishna, despite the lack of rama'i, if not for the fact that the chaluka is possibly valid possibility. In addition, they would rule yachloku in the case of depositors, despite the presence of a rama'I, if only partial ownership was a viable possibility.
Evidently, Rashi felt that the gemara was only offering an interim suggestion which does not endure. Based on this, let us reinterpret the gemara according to Rashi: The gemara questions whether R. Yossi who rules yehei munach can accept the ruling of yachloku forwarded in our mishna. The gemara then notes that regarding the comparison to our mishna, there is no difference between R. Yossi and Rabanan. After all, the case of our mishna is comparable to the third hundred. Perhaps Rashi understands that the gemara at this point indicates that R. Yossi and Rabanan are in basic agreement, their contention being only the parameters of yehei munach, which is irrelevant to the discussion of our Mishna (see Ritva).
Accordingly, the gemara initially assumed that there is a rama'i in the case of the Mishna as well. After all, the two litigants register contradictory incompatible claims. Based on this assumption, the Mishna cannot possibly work according to R. Yossi and the gemara is compelled to suggest a solution with respect to Rabanan that is inapplicable to R. Yossi. This forces the gemara to introduce the second possibility whereby Rabanan are engaged in a conceptual debate with R. Yossi. Therefore, the gemara suggests, based upon this possible understanding of Rabanan, the distinction of chaluka yekhola lihiyot emet (see Ritva).
However, the gemara concludes that yachloku of the Mishna can be adopted by R. Yossi as well. Since, in the case of the mishna there is no evidence of intentional deceit, despite the contradictory claims (there is no vadai rama'i). Since the litigants may have picked up the garment at the same time, unintentional error might be the source of the contradictory claims – not intentional deception. Therefore, the gemara concludes that yachloku can be applied even according to R. Yossi.
At this stage, the gemara is no longer compelled to adopt the interim position that there is a conceptual divide between Rabanan and R. Yossi. Therefore, the conclusion of the gemara, that yachloku of the mishna, where a vadai rama'i is absent, does not contradict yehei munach where a rama'i is present, is a valid suggestion for both R. Yossi and Rabanan (assuming that Rabanan are a moderate version of R. Yossi). Hence, Rashi concludes that the critical factor generating a decision of yehei munach, even according to Rabanan, is the presence of a vadai rama'i. (Perhaps this understanding of Rashi is motivated by the gemara on 37b, which seems to minimize the differences between R. Yossi and Rabanan.)
The importance of this argument between Rashi and Tosafot is not only regarding the pesak of a case of "I wove it," but is pivotal with respect to the question of chaluka yekhola lihiyot emet. Based upon our gemara, Tosafot demand the possibility of reflecting objective reality, in order to render a psak of yachloku. However, if Rashi reinterprets our entire sugya as dealing with an interim suggestion which is ultimately rejected, then there is no necessity to be bound by this requirement.
Kol De-alim Gevar
We have already noted two possibilities regarding the case of "ani aragtiha." Tosafot suggest yachloku, while Rashi argues in favor of confiscation - yehei munach. The Riva (Tosafot Bava Batra 34b) and Ramban suggest an additional option - kol de-alim gevar. This is based on their position regarding the problem of when to apply kol de-alim and when to rule yachloku. Last week's shiur explained that the Riva maintains that the primary pesak in cases of safek mammon is yachloku. However, the presence of a rama'i is a secondary factor which disqualifies the option of yachloku. Instead of an equitable solution - division, beit din does not get involved. Therefore, if the object in question is in the possession of a third party, it remains there - yehei munach. However, if the object is in no one's possession, the result is anarchy - kol de-alim gevar.
Tosafot in Bava Batra object to the position of the Riva. Among their arguments is that the factor of rama'i is suggested only according to R. Yossi, while according to Rabanan only the factor of chaluka yekhola lihiyot emet is relevant. If we assume that the Riva understands the sugya on 3a in a fashion reminiscent to our explanation of Rashi, this problem is resolved.
According to this approach, there is a clear-cut hierarchy regarding court rulings in cases of safek mamon. The only real psak is yachloku ("shuda de-dayni" will not be discussed here). Both kol de-alim eyehei and yihyeh munach are non-pesaks, which are implemented when factors disqualifying the possibility of yachloku are extant (vadai rama'i).
Tosafot, on the other hand, maintain that in the case of a normal safek, kol de-alim gevar is preferred, since in all probability the object belongs entirely to only one of the litigants. Yachloku is reserved for cases where each litigant is muchzak. Based upon this chazaka, both litigants are assumed as owners of half of the object. Consequently, beit din is faced with a situation to which chaluka is an outgrowth of the pre-existing legal status, and not merely an equitable compromise. Despite the chazaka of both litigants, chaluka is not possible unless there is at least a possibility that division corresponds to objective reality. If, however, there is no such possibility, beit din is forced into the unsavory solution of yehei munach. Nevertheless, yehei munach according to Tosafot can be categorized as a solution for safek mammon. According to Rashi, on the other hand, it is an artificial way of preventing a rama'i from successfully benefiting from his dishonesty.
The Ri Migash in Bava Batra suggests an alternate view of the relationship between the various possibilities; yachloku, kol de-alim gevar, and yehei munach. According to him, there is no hierarchy whatsoever. Rather, beit din always sustains the previous status. Therefore, where both are holding on to the talit, yachloku is applied. When none are in possession, a decision of kol de-alim gevar is rendered. If the object is in the safekeeping of a third party, there it shall remain - yehei munach. In actuality, these three decisions can be classified as three separate variations of one overarching rule.
It is certainly an interesting as well as an aesthetic theory. Try to ascertain why other Rishonim refused to adopt his approach.
Sources and questions for next week’s shiur:
1. Gemara 2b "Leima matnitin de-lo ke-Sumkhus ... sheli hu" (3a), Tosafot s.v. Heikha.
2. Bava Kama 35a mishna, gemara till "bari u-bari", 46a mishna, gemara till "alav ha-ra'aya".
3. Bava Metzia 100a mishna, gemara till "lo amar," Tosafot s.v. Ha mani.
4. Tosafot Bava Metzia 97b s.v. Leima, Tosafot Bava Kama 35b s.v. Zot. Bava Metzia 6a ""Ta shma bameh devarim amurim … pshita", ibid "v'ee bait eima … lav klum hu".
1. How could the gemara contemplate that, according to Chakhamim, the ruling in the case of our mishna should be "ha-motzi me-chaveiro alav ha-ra'aya?"
2. What is the logic of limiting Sumkhus to cases of shema ve-shema?
3. What would Sumkhus rule where one claimed ownership of an object in the sole possession of another? Why?