YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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TALMUDIC METHODOLOGY

by Rav Moshe Taragin

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This shiur is dedicated in memory of Yosef Peretz, the legendary gardener of Yeshivat Har Etzion for over twenty years. Yehi zikhro barukh.
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Shiur #13: Tefisa (Part 2)

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Mazal tov to Rav Mosheh and Michal Lichtenstein upon the birth of a baby girl, sister to Yehudit and Beruriah. May they and the Lichtenstein/Minzer families be zocheh to raise her le-Torah, le-chuppa u-le-ma'asim tovim!
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Having examined Tosafot's opinion, reflected in the manner by which they resolve the troubling gemarot in Ketuvot, we will now explore the opinion of the Ramban, who poses a decidedly different position regarding tefisa. First, the Ramban (primarily in his comments to Bava Metzia 6a, but briefly restated in Ketuvot 20a) attempts to explain the effective tefisa cited by the gemara in Ketuvot (16b). That case involves a divorced couple arguing about the amount owed to the woman for her ketuva. She claims she was a betula at the time of their marriage and thus deserves 200 zuz, while the husband counters that she was not a betula and only deserves a ketuva of 100 zuz. The gemara implies that although we only award 100 (since the husband is muchzak in his money), if the woman were to unilaterally seize 200 we could not override her actions. The Ramban explains that this instance allows successful seizures since the uncertainty is one which ultimately will be clarified. Though, currently, her status at the moment of marriage is unclear, inevitably evidence will emerge to help determine that status conclusively. Any safek which is "omed le-hitbarer" (is likely to be explicated) allows successful seizure, while irreconcilable  sefeikot (such as safek bekhor – the question of whether an animal is indeed the firstborn) do not facilitate tefisa.

	The simplest way to explain the Ramban's position would be based on the formulation of a gemara in Bava Metzia (110a), which the Ramban himself cites as precedent. The gemara addresses a dispute between the lender and borrower as to exactly how many years of produce the lender was promised as compensation for his debt – 3 or 5 years. The gemara suggests that if the debate emerges after the 5-year period – effectively after the lender has collected 5 years worth of fruit (2 of which are disputed), he retains ownership. Apparently, his tefisa was effective. The gemara defends this ruling by claiming that this safek will ultimately be resolved (perhaps the original signatories will remember the original terms of compensation), so why trouble Beit Din to counter the seizure when tomorrow that seizure might be corroborated through hard evidence? Such a scenario would require Beit Din to award the disputed item to the person whom they just overruled - leading to an embarrassing scene compromising the respect and dignity which people associate with Beit Din. Namely, the Ramban might have allowed successful seizure in fluid cases (omed le-hitbarer) to safeguard the integrity of Beit Din by not forcing them to regulate a seizure which tomorrow might be substantiated through evidence. 

	Though this logic seems compelling, the Ramban struggles to solve a second gemara in Ketuvot (20a) which licenses tefisa for a safek which indeed seems IRRECONCILIABLE. The case surrounds a Beit Din which attempts to notarize a contract and receives conflicting testimonies to the validity of the signatures. Though we rule in favor of the defendant, Rashi suggests that seizure of the disputed money would be effective. This safek seems intractable, since witnesses have already provided contradictory reports as to the veracity of the original signatures. Even if 100 witnesses would testify tomorrow to the signatures' validity, the doubt would remain irreconcilable since halakha views two eidim as equivalent to 100 ("terei ke-mei'a") and we already received two witnesses claiming the signatures were forged!!! How, then, can the gemara sanction tefisa for a safek which is not omed le-hitbarer?

	The Ramban adds a second exception to the rule that tefisa doesn't succeed: if a person were to seize money in a situation of terei u-terei (a safek surrounding contradictory testimonies), his tefisa would be successful. It is unclear from the Ramban why this should constitute an exception, and it seems even more awkward associating this exception (terei u-terei) with the previous exception (omed le-hitbarer). At some point, a long list of unrelated exceptions deflates the integrity of any principle.

	Perhaps we might pose the following logic to unify the two exceptions of the Ramban. As stated in the previous shiur, the rule of ha-motzi mei-chavero alav ha-ra'aya is built upon two independent aspects: the status quo of possession, as well as the inherent proof which possession confers (if you are currently in possession, we assume you acquired it in legal fashion). Though a seizer might acquire the first element of muchzak (as he establishes physical possession), he cannot ever achieve proof of ownership through his possession, since we know exactly how he acquired the item – he grabbed it in front of our eyes!! We had suggested that Tosafot values the physical status quo (of the tofes) more than the innate proof (which will always favor the original owner who is now victim to the tefisa), as long as the tefisa does not appear to be an act of theft – meaning, it occurred prior to the emergence of the safek or it is based upon a definite and confident claim by the seizer. The Ramban might dispute this very point. Generally, the physical status quo is not stronger than the proof of ownership. Hence, under normal circumstances, we would rely more heavily upon the proof and less upon any physical condition. The preference would generally favor the original possessor and disqualify seizure. However, there are two environments in which we ignore proof of possession: if we anticipate superior evidence tomorrow (omed le-hitbarer), or we have already exhausted the evidentiary process today (terei u-terei). Either context (and in many ways these inverse conditions are logically parallel) creates a halakhic and legal atmosphere which discriminates against accepting proof of possession. In general, in the absence of any hard evidence, we will rely upon proof of possession. But, if we await more convincing evidence or have already received convincing (but contradictory) evidence, we will no longer rely upon proof of possession, and the physical state which the seizure created will be left unopposed by any contrary proof, and will triumph. Both omed le-hitbarer and terei u-terei create situations which render irrelevant the inherent proof which possession confers. By sidelining this proof, the door to successful seizure has been opened. 

	Essentially, Tosafot and the Ramban debate which aspect of ha-motzi mei-chavero alav ha-ra'aya is more compelling. Tefisa cleaves the two components, establishing the grabber as the new physically dominant party while retaining proof for the original party. When these two forces face off against each other, which triumphs? The Ramban felt that the proof of possession generally defeats the physical state, and therefore tefisa is ineffective. It can be sanctioned only in environments which do not invite application of proof of possession, namely, omed le-hitbarer and terei u-terei - anticipation of superior proof or exhaustion of available proof. 

	By contrast, Tosafot felt that physical possession (now enjoyed by the tofes) should, in theory, triumph over proof of possession. However, if a person grabs without a confident claim or after the safek has already emerged, he is defined as a thief and his physical possession is meaningless. For him to establish a physical presence or dominance, he must grab in a manner or at a stage in which he isn't cast as thief. Once he grabs in such a manner, he triumphs even without enjoying proof of possession!!!

	Thus, the dispute between the Ramban and Tosafot is, essentially, a dispute about the dynamics of ha-motzi mei-chavero, and which factor is the more dominant feature of this principle.