The Mishnah discusses a case where two people come into court holding a garment, and each one claims it is entirely his. The halacha is each one swears to validate his claim and then they divide it.

Tosafos asks, why is it that in our Mishnah when two people argue over a garment, the halacha is “yachloku” - they divide it, and when two people argue over a ship, the gemara tells the halacha is “kal dalim gvar” - whoever is stronger wins?

Tosafos answers by establishing the following principle. When beis din sees an object in one’s possession, it assumes that the object is his. It is as if the court has witnesses that the garment is his. “Anan sahadi mai dtafus hai didei hu” - we are witnesses that what one possesses belongs to him. Therefore, when two people are holding the object together, beis din assumes the object belongs equally to both of them. Since in our Mishnah both disputants are holding the garment, therefore beis din assumes that each one surely owns half the garment. Therefore the halacha is, yachloku, they divide it. However in the case of the ship, neither one is holding the ship. Therefore the halacha is “kal dalim gvar” - whoever is stronger wins.


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The first thing we must understand is this principle that Tosafos teaches us. “Anan sahadi mai dtafus hai didei hu” - we are witnesses that what one possesses belongs to him. Tosafos is referring to the halacha of “cheskas mamon”. This halacha dictates that there is a legal status of “assumed ownership”. One who has a cheskas mamon is assumed to be the owner. Regarding movable objects, the one who is holding the object has the cheskas mamon; he is assumed to be the owner.

There are two components to a cheskas mamon. One is the well known concept the gemara on 2b mentions: hamotzi mchaveiro alav harayah - the burden of proof is upon the one who wants to extract. This concept does not say that possession proves ownership. Even though you possess an object, it might not be yours. However since you possess it, this places the burden of proof upon the one who is trying to take it away from you. Tosafos is teaching us that there is also another, stronger, component to cheskas mamon. This is that, possession proves ownership. The fact that you possess it, proves to us that it is yours. This is called, “anan sahadey mai dtafas hai didei hu” - we are witnesses that what one possesses belongs to him.

❂

At first glance, Tosafos’ explanation of our Mishnah seems to be easily understood. If an actual pair of witnesses were to testify that each one owns half, obviously the halacha would be that they divide it. Likewise, when they are both holding the garment, it is as if each one has witnesses that half the garment is his; thus they divide it.

The Rosh asks the same question as Tosafos : why is it that in our Mishnah, when two people dispute the ownership of a garment, the halacha is “yachloku” - they divide it, and when two people dispute the ownership of a ship, the gemara tells the halacha is “kal dalim gvar” - whoever is stronger wins?

The Rosh answers in a similar fashion to Tosafos, but he elaborates more. The Rosh does not say simply that, since each one surely owns half, therefore beis din divides it. Rather he says that, since each one surely owns half, therefore we cannot say kal d’alim gvar. The reason being because, if beis din would say that whoever is stronger wins, that means beis din is allowing each one to grab the garment from the other. That is tantamount to allowing each one to steal. Beis din is unable to allow one to steal. Therefore beis din is unable to say whoever is stronger wins. Once we eliminate the possibility of saying whoever is stronger wins, we are left with no choice but to say that they divide it.

The question arises. The Rosh does not say simply that, since each one surely owns half, therefore beis din divides it. Rather he says that, the anan sahadi eliminates the judgement of kal dalim gavar, and therefore we must say yachloku. This clearly implies that the only reason we are saying yachloku , is because we are unable to say kal dalim gavar. Why is that? Why can’t the Rosh say that even if beis din was able to say kal dalim gavar, it would not say that. It would nevertheless divide it, since it is considered as if each one has witnesses that half is his.

In order to answer, one must understand that there are different levels of proof. There is a level of actual witnesses. If actual witnesses were to testify that the garment that Shimon is holding belongs to Reuven, this would enable Reuven to take the garment away from Shimon. However there is a lesser level of proof. This level of proof proves ownership, but it is not a level of proof that enables extraction. For instance, there is a concept of migui. This is a level of proof, yet Tosafos tells us migui is unable to extract. There is a proof of majority. This proof is also unable to extract. The Rosh understands that anan sahadi is also this type of proof, a proof that is not powerful enough to extract.

In our Mishnah where two people are holding a garment, each one is perceived as holding the entire garment. Therefore, we are unable to award each one half of the garment directly because he has an anan sahadi. Since each one must extract that half of the garment from the other’s possession, he is unable to do that with his anan sahadi. Therefore the Rosh must say as follows. Since this anan sahadi is sufficient to prevent extraction, therefore this disables beis din from being able to say whoever is stronger wins. The anan sahadi says that anyone who grabs this object from the possessor is stealing. Beis din cannot allow stealing. Once beis din eliminates the possibility of resolving the dispute by saying whoever is stronger wins, it has no choice but to resolve the dispute by saying the garment is divided. If beis din is forced to issue this judgement of yachloku, then the judicial decision of beis din has the legal strength to allow the disputants to extract half the garment from each other.

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According to the above we can answer another question. We mentioned that there are two components to cheskas mamon. One is that possession proves ownership. Another is a less powerful concept - the burden of proof is on the one who is attempting to extract. Tosafos asked, why in our Mishnah is the halacha that the talis is divided and in the case of the ship the halacha is whoever is stronger wins? Tosafos answered, because in our Mishnah each disputant has the anan sahadi component of cheskas mamon. The implication is obvious. The fact that both disputants have this anan sahadi component of cheskas mamon, determines the judicial decision that the garment is divided. If both disputants had only the hamotzi mchaveiro alav harayah component of cheskas mamon, the halacha would indeed be, whoever is stronger wins. Why is this so? Why wouldn’t the fact that each disputant has the hamotzi mchaveiro alav harayah component of cheskas mamon, be sufficient to determine the judgment of yachloku?

We can now answer as follows. We saw from the Rosh that, the way the cheskas mamon determines the judicial decision of yachloku, is because it prevents the court from being able to say kal dalim gavar. Since the cheskas mamon proved that half the garment belongs to each, this disables the court from allowing the other one to grab it; that would be tantamount to allowing him to steal. Only the anan sahadi component of cheskas mamon, which tells us that the garment is surely his, makes us view the one who is grabbing it from him, as stealing. However the hamotzi mchaveiro alav harayah component, which does not say that possession proves ownership, does not make us view the one who is grabbing it from him, as stealing. While the burden of proof is upon the one who grabs it, this does not mean that he is stealing. Only if he is viewed as stealing is beis din unable to allow him to grab, is beis din unable to say kal dalim gavar. That is why Tosafos and the Rosh explained that, specifically the anan sahadi component of cheskas mamon determines the judicial decision of yachloku.

Quote" The question arises. The Rosh does not say simply that, since each one surely owns half, therefore beis din divides it. Rather he says that, the anan sahadi eliminates the judgement of kal dalim gavar, and therefore we must say yachloku. This clearly implies that the only reason we are saying yachloku , is because we are unable to say kal dalim gavar. Why is that? Why can’t the Rosh say that even if beis din was able to say kal dalim gavar, it would not say that. It would nevertheless divide it, since it is considered as if each one has witnesses that half is his."

I would answer like this: The Rosh is L'Shituso that Kol D'Alam G'Var is also a Mocheach. That the one who put more effort to try to posses it shows that he's the real owner. Therefore he could hold that your putting yourself out on life and limb in order to get back your property is a bigger proof that it belongs to you more than the mere possession of it (which is quite logical, since it tells us about the human nature in this particular case more than a general rule.)

Thus, if they would allow Kol D'Alim Gavar, then they would say to do it, since it will be a bigger proof who it belongs to. Therefore he says that technically it can't be taken out of the one who's holding it, since that would be an Issur of stealing, thus Beis Din cannot allow it to prove it (like it wouldn't be allowed to prove anything if it involved to be M'Chalel Shabbos.)

Shalom Rav Chaim,
Quote "I would answer like this: The Rosh is L'Shituso that Kol D'Alam G'Var is also a Mocheach. That the one who put more effort to try to posses it shows that he's the real owner. Therefore he could hold that your putting yourself out on life and limb in order to get back your property is a bigger proof that it belongs to you more than the mere possession of it (which is quite logical, since it tells us about the human nature in this particular case more than a general rule.)

Thus, if they would allow Kol D'Alim Gavar, then they would say to do it, since it will be a bigger proof who it belongs to. Therefore he says that technically it can't be taken out of the one who's holding it, since that would be an Issur of stealing, thus Beis Din cannot allow it to prove it (like it wouldn't be allowed to prove anything if it involved to be M'Chalel Shabbos.)"

First of all, Yasher Kochacha for reading and commenting on this Torah. Second of all, I totally disagree with your premise that the proof that his grabbing brings to us can be stronger than anan sahadi. The anan sahadi is considered witnesses to a certain extent, it is a”vadai” -what you possess is surely yours. Nowhere in the Rishonim is the proof that one’s grabbing brings us described as “vadai”. We know that the proof of migui is not valid against anan sahadi. Would you say that the prove that the grabbing brings us is also stronger than migui? If beis din issued a judgment of kal dalim gavar and one disputant has a migui, would we say that if the other disputant grabs it this disproves the migui? I would think that not.

R’ Chaim (referring to R’ Chaim Brisker, not you - just kidding), in his commentary on the Gemara in Bava Basra 34a, teaches the following concept. If Reuven possesses an object in Shimon grabs it away, even though first Reuven had the anan sahadi, we should really say that now that Shimon has possession of the object, he should have the anan sahadi. But we don’t say this. The reason being because since we saw Shimon grab it away we see his grabbing as a tfisas gzeila; we see Shimon as a gazlan. According to that I have a very strong question which disproves your premise. The Rosh has a question: in a case where the halacha is kol dalim gavar, and Reuven grabs it first, can Shimon now go ahead and grab it back from Reuven. The Rosh says that the only reason Shimon is unable to grab it back from Reuven is because Chazal did not want the two disputants to be fighting for the rest of their lives. Therefore they decided that whoever grabs it first keeps it and the second disputant is unable to grab it in return. If you say that the proof that Reuven’s grabbing brings us is stronger than the proof of anan sahadi then the Rosh could have explained that halachically Shimon is unable to grab it. Since when Reuven grabbed it we have “witnesses” that it is his, then if Shimon will attempt to grab it we see him as a gazlan. This then should prevent him from being able to grab it. Just as R’ Chaim taught that even though when Shimon grabs an item from Reuven’s possession this would inherently give him the proof of anan sahadi, still since we see him as a gazlan he cannot get that proof, so too once Reuven got his proof that the item is his, even though inherently if Shimon grabbed it we now have proof that it is his, still if we see him as a gazlan he cannot get that proof.

Furthermore, when theRosh mentions this concept that grabbing shows us to an extent that it is his, he says it very weakly. The Rosh is explaining why in the case of the ship we say kol dalim gavar. He says that we cannot say yachloku since we might be causing the true owner a loss. Therefore it is more fitting to say kol dalim gavar. And Chazal rely on the fact that whoever it belongs to will fight stronger. The Rosh does not say directly, “it is better to say kol dalim gavar because when he grabs it this will prove that it is his.” He just says Chazal rely on this idea. He is implying that this idea just makes it the lesser of two evils so to say. In other words, yachloku is not a good judgment because we might be causing the true owner a loss, but why is kol dalim any better? The Rosh answers that it is better because there is some basis, some small level of proof that the true owner will be getting it, enough that there is some basis to say this judgment. However The Rosh does not mean that this is a proof of the anan sahadi type

You are saying that the same way beis din would not allow one to prove his ownership if it involved desecrating Shabbos, so too we cannot say kol dalim because it causes a transgression of the prohibition of stealing. This analogy does not hold water because in the case of Shabbos desecration, the proof of ownership will not negate that transgression. However, according to your logic, if the grabbing truly proves ownership, then that will prove that he is not transgressing the prohibition of stealing.
Yashe Koach
Kol Tuv
Yisroel

Quote "The anan sahadi is considered witnesses to a certain extent, it is a”vadai” -what you possess is surely yours. Nowhere in the Rishonim is the proof that one’s grabbing brings us described as “vadai”. "

Every Umdena is considered as Vadai. That is the reason why you can be Moitzie with an Umdena. The same applies by certain Chazakas (which are Umdenas) like one doesn't pay B'Toch Z'mano.

The very fact that the Rosh had a Have Amena to remove it from his hands because of Kol D'Alam gavar, even though he's definitly Muchzik, shows that we are Moitzie because of this Umdena.

Quote "We know that the proof of migui is not valid against anan sahadi. "

Migoy is not really a proof of sorts, but rather a koach hatana, that we streanthen his claim, but it's not a proof, and it's not Moitzie either.

Quote "The reason being because since we saw Shimon grab it away we see his grabbing as a tfisas gzeila; we see Shimon as a gazlan."

There is a big difference between when it's Muchzik to us as in one person hands and when it was Muchzik in the beggining as a Sufaik. If it comes from teh beginning in his R'Shus, we assumed that it came in legally, so you have an Anan Sehadi. But if it originally was a Sufaik and then ended up in ones hand, there is no Anan Shadi. A proof is that with Shnayim Ochzim, that if they come back to Beis Din with one holding it and he claims the other was Modeh to him, he's not believed and you still split it.

Quote "Furthermore, when theRosh mentions this concept that grabbing shows us to an extent that it is his, he says it very weakly. "

I think this is a matter of opinion. but it would seem to in the Rosh you originally brought down, he seems very strong with Kol D'Alam, to even remove from someone's hand and beat a Anan Sahadi to boot. The Rosh that says it's "weakly" was why do you need to create a "proof" by Kol D'Alom, when beis Din has an option to do something now by Yachloku. thus he gives a reason to create another proof and not take the option in front of you.

Quote "However, according to your logic, if the grabbing truly proves ownership, then that will prove that he is not transgressing the prohibition of stealing."

Firstly, right now the object is b'Chezkas the one person, so right now therre is a Chazaka that grabbing it out of his hand is an issur. Even if L'mafrea it might show something else, but right now BD has no right to tell something that right now is a clear Issur D'oraisah.

Secondly, Sufeik Issur and Sufeik Momon is different and w don't rely on the same Hochachos for both. Case in hand Sufeik B'chor that you may keep but cannot do Geza V'Avoda. So to consider it enough proof, with Koach Hatayna to be able to keep it, that we may say. but to be Oiver on Lo Sigzal in a way that ti's a real Maaseh Gzeila (Va Yigzal Hachanis M'Yad etc.) that we wouldn't allow.

Just to finish off of what I was saying

Quote" The anan sahadi is considered witnesses to a certain extent, it is a”vadai” -what you possess is surely yours."

But, yet, in your answer you write,a nd I quote

"The Rosh understands that anan sahadi is also this type of proof, a proof that is not powerful enough to extract."

If it's Vadai, why can't it be Moitzie?

Also, to answer the last question "However, according to your logic, if the grabbing truly proves ownership, then that will prove that he is not transgressing the prohibition of stealing."

We can answer quite PAshut (besides what I wrote in the last post) that while tugging together, each one will be grabbing parts of the Talis. Though it's a proof who gets it at the end, but right now, the one who doesn't own it is still grasping at the Talis. Every grasp should be a Maaseh G'Zeila, just like each grab is a Kinyon and is considered Muchzik, as it's brought in our Gemara.

Shalom Rav Chaim,
First of all, I noticed that you live in Yerushlaim. How fortunate you are! I wish so much I could live there. Besides the kedusha, the special power of avira dyisrael machkim, the seyata dshmaya. Please kiss the kotel for me.
Secondly:

quote:

Every Umdena is considered as Vadai. That is the reason why you can be Moitzie with an Umdena. The same applies by certain Chazakas (which are Umdenas) like one doesn't pay B'Toch Z'mano.

The very fact that the Rosh had a Have Amena to remove it from his hands because of Kol D'Alam gavar, even though he's definitly Muchzik, shows that we are Moitzie because of this Umdena.

I do not see where you see that the proof the grabbing brings is a umdena. The have amina of the Rosh was that the psak beis din is moitzi, the same way I explained in my original essay that it is not the anan sahadi that is being moitzi. The anan sahadi just elimninates kol dalim and it is the psak beis din of yachloku that is being moitzi.
Quote "Migoy is not really a proof of sorts, but rather a koach hatana, that we streanthen his claim, but it's not a proof, and it's not Moitzie either"
You know R' Elchanan in the Koveitz Shiurim has two ways of explaining migui. One is like you said. The other is that it is a proof. In fact that is the more pashut way to learn. Rashi in Kesubos ( reish perek sheini) when he explains why R' Yehoshua does not hold of migui, does not even explain why he disagrees with koach hatayna, he only explains why he disagrees with the proof of migui.
Quote There is a big difference between when it's Muchzik to us as in one person hands and when it was Muchzik in the beggining as a Sufaik. If it comes from teh beginning in his R'Shus, we assumed that it came in legally, so you have an Anan Sehadi. But if it originally was a Sufaik and then ended up in ones hand, there is no Anan Shadi. A proof is that with Shnayim Ochzim, that if they come back to Beis Din with one holding it and he claims the other was Modeh to him, he's not believed and you still split it."
I do not understand how this answers my question.
Quote "If it's Vadai, why can't it be Moitzie?"
There are different levels of vadai. Something can be a vadai yet it cannot be moitzi. Take rov - majority. Beis din can kill a person al pi rov, yet it cannot be moitzi mamon.

I see you are a moiredika talmid chacham and I thank you for taking the time to write these posts.
cheilach loraisa
kol tuv
Yisroel

Secondly:

quote:
Every Umdena is considered as Vadai. That is the reason why you can be Moitzie with an Umdena. The same applies by certain Chazakas (which are Umdenas) like one doesn't pay B'Toch Z'mano.

The very fact that the Rosh had a Have Amena to remove it from his hands because of Kol D'Alam gavar, even though he's definitly Muchzik, shows that we are Moitzie because of this Umdena.


I do not see where you see that the proof the grabbing brings is a umdena. The have amina of the Rosh was that the psak beis din is moitzi, the same way I explained in my original essay that it is not the anan sahadi that is being moitzi. The anan sahadi just elimninates kol dalim and it is the psak beis din of yachloku that is being moitzi.
Quote "Migoy is not really a proof of sorts, but rather a koach hatana, that we streanthen his claim, but it's not a proof, and it's not Moitzie either"

You know R' Elchanan in the Koveitz Shiurim has two ways of explaining migui. One is like you said. The other is that it is a proof. In fact that is the more pashut way to learn. Rashi in Kesubos ( reish perek sheini) when he explains why R' Yehoshua does not hold of migui, does not even explain why he disagrees with koach hatayna, he only explains why he disagrees with the proof of migui.

Quote There is a big difference between when it's Muchzik to us as in one person hands and when it was Muchzik in the beggining as a Sufaik. If it comes from teh beginning in his R'Shus, we assumed that it came in legally, so you have an Anan Sehadi. But if it originally was a Sufaik and then ended up in ones hand, there is no Anan Shadi. A proof is that with Shnayim Ochzim, that if they come back to Beis Din with one holding it and he claims the other was Modeh to him, he's not believed and you still split it."

I do not understand how this answers my question.

Quote "If it's Vadai, why can't it be Moitzie?"

There are different levels of vadai. Something can be a vadai yet it cannot be moitzi. Take rov - majority. Beis din can kill a person al pi rov, yet it cannot be moitzi mamon.

I see you are a moiredika talmid chacham and I thank you for taking the time to write these posts.
cheilach loraisa
kol tuv

Yisroel You can view the message here http://globalyeshiva.com/eve/forums?a=tpc&m=3241056092&f=904606335-->

Quote "First of all, I noticed that you live in Yerushlaim"

That's probably rabbi Mitterhoff's you see. i live here in Michigan (Halivai )

Quote "I do not see where you see that the proof the grabbing brings is a umdena"

I was thinking that, since the rosh learns that kol D'alom that we assume that he's the owner, since the owner would fight harder for it. Isn't that an Umdena, that we assess that teh one who finally grabs it is the owner?

Quote "You know R' Elchanan in the Koveitz Shiurim has two ways of explaining migui. One is like you said. The other is that it is a proof. "

I didn't know that. How does he learn it to be a proof? If he would say the better Tayna first (instead of the weaker Tayna + the Migu) the Tayna wouldn't be a proof, but rather the fact he's holding it (but he needs a proper claim to why he has it.) So why should the weaker claim be a bigger proof than the better claim?

Quote "I do not understand how this answers my question."

i went back tot eh original post to make sure I got the question. I do this sometimes in a big rush. I thought you were asking something else. Your question is, I think summed up in these words.

Quote "The Rosh says that the only reason Shimon is unable to grab it back from Reuven is because Chazal did not want the two disputants to be fighting for the rest of their lives. Therefore they decided that whoever grabs it first keeps it and the second disputant is unable to grab it in return. If you say that the proof that Reuven’s grabbing brings us is stronger than the proof of anan sahadi then the Rosh could have explained that halachically Shimon is unable to grab it. Since when Reuven grabbed it we have “witnesses” that it is his, then if Shimon will attempt to grab it we see him as a gazlan. This then should prevent him from being able to grab it."

The rosh, in the beginning, didn't learn the Kol D'Alam is a proof who owns it. RAther, he learnt that whoever gets it, since we don't know who should get it, may keep it. But this is a problem for Beis Din to do this, since it can go on forever without any definite owner, so there is no fix to the situation. That's why the rosh needed to come afterwards that Kol D'Alam cannot be whoever gets it we leave it that way since the other doesn't have proof, but rather whoever grabs it first we assume (through the Umdena he'll fight for it better) that he's the owner.

So Ein Hacha Nami, when the Rosh asked that question, he wasn't learning it as a proof.

Quote "Quote "If it's Vadai, why can't it be Moitzie?"

There are different levels of vadai. Something can be a vadai yet it cannot be moitzi. Take rov - majority. Beis din can kill a person al pi rov, yet it cannot be moitzi mamon."

This is correct, but in itself is a Sugya. The Shmattsa, if I remember correctly, says Misah and Momon are equal and makes a differnence if the Rov tells me the background (is this person an Erva) but the Maaseh is definite (they had Biah) or if the Maaseh is only through a Rov.

Also, there are differnce between a Rov gamur and a weak Rov, as tosfos in Sanhedrin 3b and Bk 27b points out. So not all rovs are Vadai. Some could be just Hanhaga, thus we wouldn't be Moitzie Momon. But if something is labled as a Vadai, that should be compared to Rov Gamar that we are moitzie.

Quote "I see you are a moiredika talmid chacham and I thank you for taking the time to write these posts."

Thank you for the compliment (and you're no slouch yourself ) Hatzlacha on your new forum and welcome to the GY.

Shalom Rav Chaim,
Yasher Koach for your courtesy. I do not know much but I know enough to recognize the real stuff when I come across it. There are professional talmidei chachamim and amatuers, same as with everything else.

Sorry about the mix up. Hashem should give you and all of us the zchus to live in Eretz Yisrael with the coming of Mashiach soon.
Kol Tuv
Yisroel

quote:

Originally posted by Yisroel Issac:
The Mishnah discusses a case where two people come into court holding a garment, and each one claims it is entirely his. The halacha is each one swears to validate his claim and then they divide it.

Rebbe Yisroel Issac, Rebbe Chaim,

Could either of you please tell us what are the practical implications of this law? Would this rule also apply to one who, let's say, found a fountain pen, or an eraser, or a note-book, or a pair of sun glasses, a surf-board, or pair of gloves, (while the finder disputed with another person over the ownership of that object)?

David

Quote "while the finder disputed with another person over the ownership of that object)?"

If, when they come into Beis Din, only one person is holding onto it, he has the Chezkas Mamon, and the other needs to prove that it's his to remove it from his hands.

B"H

Thanks, Rav Chaim! This is perhaps because of that rule that says, "The burden of proof lies with him who makes the exaction." But what if they were both holding on to a book at the same time when they stepped foot into Beis-Din, both claiming that the book was his. Would they exact a sworn oath from the parties and divide the book between them?

David

I would also ask relative to a sugya I am currently learning in Bava Basra - if two people have an equally strong claim to land, such as each claim that it was in their families for many generations with absolutely no proof showing one to have a stronger claim than the other -- or, and perhaps a closer tie, this field is the abandoned property of a deceased ger without heirs... perhaps each entered the border of such a large field from opposite sides and knocked down the fence at the same time?

Do we ever say on land that they should divide?

Would we ever administer a creative oath that not less than the field is his -- provided the field is of enough size to be subdivided?

Yes, it would be the same as a Talis.

So land can be divided and an oath administered on a case of disputed land of divisible size?

Is this explicitly written anywhere prior to GY?


Furthermore:

If one has proof of a claim for why the land should be his, and another has proof that he has been having the land under his owner's-like control for 3 years, would that be equivalent to the case of 2 people with an animal, one riding, and the other leading?

quote:

Yes, it would be the same as a Talis.

I was going on David's case.