Introduction
The rule of המוציא מחברו עליו הראיה (the
burden of proof is on the claimant) is reasonably well known. The basic idea is
rather simple and is not dependent on the Torah. The gemara says that no source
is necessary to derive the rule from, as it is obvious – "Only the one who
is pained has to go to the doctor" (i.e. only the one who is seeking to
change the current situation has to prove his point).[1]
That being said,
those who have a reasonable background in Torah learning will know that the
rules of muchzakut (status quo ownership) can be complicated. Entire
books have been written on this subject, and I certainly cannot give a
comprehensive explanation in one post (or even in several). Instead, I will make
one general observation and then deal with a less well known application.
Does muchzakut
prove anything?
The logic given
by the gemara above does not say anything about the likelihood of the truth of
a claim. Even if in our judgment, both litigants have equal chances of being in
the right, we cannot ask the muchzak (status quo owner) to pay without
proof.[2]
A good example
of this is a case in the Mishna where two people trade a cow for a donkey and
subsequently realise that the cow gave birth. They debate whether the calf was
born before the sale (in which case the calf belongs to the seller) or
afterwards (in which case it belongs to the buyer). The gemara says that if the
calf is currently on the property of one of them we do not take it away from
him. If it is on ownerless land, we give it to the seller as he was the status
quo owner of the mother.[3]
In the case
above, despite there being no indication whatsoever of what the truth is, it is
still completely logical to leave the calf with the muchzak. However, it is certainly true that in many cases, it is also more likely that the muchzak
is the one telling the truth. In general, if a person claims that an item in
another person's home belongs to him, but cannot produce any evidence to this,
it is fair to say that it is more likely that the claim is false.[4]
It is also true
that sometimes the likelihood of one side being right will influence how we
decide who the muchzak is. Although usually the muchzak is the
one holding an item even if we know that it previously belonged to someone
else, this is not true regarding things that can easily get into another
person's hands. Examples include animals that may wander,[5]
or things that are designated to be lent out.[6]
Opposing
Chazakos
There can be
other factors that make deciding who the muchzak and who the motzi
(the one challenging the status quo) is even more complex. The first example of
this that I would like to discuss appears in the Mishna and is subject to
further discussion in the gemara. A person rents a bathhouse and stipulates
with the landlord that he will pay "twelve gold coins for a year, one per
month."
This seemingly
simple agreement then runs into a complication when the Sanhedrin decided to
declare a leap year, resulting in a year of 13 months. Who has the right to use
the bathhouse during the 13th month, and if the renter uses it does
he have to pay a 13th gold coin?
Different
opinions and rationales are given by the tana'im and amora'im. The view of
Shmuel is that if the landlord comes at the beginning of the 13th month
to evict the renter, he is within his rights. Rashi explains that this is
because when it comes to land, the muchzak is the owner and not the one
currently using it.[7]
The Ran points
out that the gemara does not specify whether the renter already paid the 12
gold coins. The implication is that even if he has not, the landlord can force
him to do so as well as evicting him for the 13th month, despite the
fact that the renter is the muchzak with respect to the money. He explains that
this is because the renter's obligation to pay 12 gold coins is undisputed. As
the only question is about the control of the bathhouse for the 13th
month, the relevant chazaka (status quo ownership) is the one on the
bathhouse and not the one on the money.
A Dissenting
Opinion?
The problem with
this is that elsewhere, Tosfos seem to say the opposite. The gemara discusses a
case where some people use the words כד (jug) and חבית (barrel) interchangeably and as a result there was a
misunderstanding between a buyer who wanted to buy a barrel and a seller who
wanted to sell a jug. Even if the majority of people use the relevant word in a
particular way, this is not sufficient to allow Beis Din to take something away
from the muchzak.[8]
Tosfos write
that in this case, if the buyer has not yet paid, he has the right to refuse to
do so unless he receives the barrel he expected. This does not seem to be
consistent with the logic of the Ran above. As the price was agreed upon and
the only dispute was about the item being purchased, the seller should be able
to collect his payment and only provide the jug.
As historically
there has been a tremendous amount written about the general topic of chazakos,
it was surprising to me to find that few acharonim deal with this difficulty.
Out of those who do, the Kuntras HaSfeikos (R' Yehuda Kahane Heller, 1740-1819,
Eastern Europe) concludes that Tosfos disagree with the Ran, without offering
any reconciliation of the gemara according to Tosfos.[9]
R' Shimon Shkop (1860-1939,
Lithuania) firmly rejects the understanding of the Kuntras HaSfeikos. Instead,
he points out the following difference between the two cases. In the case of
the rental, we have only one question – what is the halacha in general when language
used turns out to be contradictory. We are not sure whether to follow the first
expression used (in our case "twelve gold coins for a year") or the
last ("one per month"). Either way, the same rule is true for all
cases, irrespective of what the specific litigants had in mind.[10]
The case of the
barrel and the jug is more complex. Here, as we are dealing with the meaning of
a specific word, there is no general rule to follow. Thus we have to ask two
questions – what did the seller mean and what did the buyer mean? If they both
meant the same thing, the sale stands and the buyer now owns either the jug or
the barrel. If, however, the buyer meant to buy the barrel and the seller meant
to sell the jug, such a misunderstanding invalidates the transaction entirely.
Due to this possibility, we cannot force the buyer to pay.
This distinction
is far from straightforward. While I agree that Chazal did not write a dictionary
to define the meaning of specific words, I do not see why this lack of official
definition should necessitate the evaluation of each person's intention
separately. It should be sufficient to judge what the general meaning of the
word is (or to decide that there is no conclusive meaning) – if one individual
claims that he is different he will need to provide evidence that this is true and
that the other litigant should have realised.[11]
The only
resolution that I can suggest for the position of Tosfos regarding the jug and
the barrel is that they are dealing with a case where the seller did not have a
barrel to sell. Thus the claim of the buyer is only that the sale of the jug was
invalid and there is therefore no reason for him to pay.[12]
The dispute is over the money, and as this is in the hands of the buyer, it
will stay there unless there is some decisive proof.
The precedent
for this in the gemara is a case where a person bought an ox in order to plough
with, but without specifying this purpose to the seller. It then transpired
that this ox was crazy and perpetually intent on goring people (or other oxen)
and the buyer asked for his money back. The seller replied that he assumed that
the buyer wanted to slaughter the ox for its meat, a purpose for which it was
perfectly suited.
In this case,
the buyer had already paid for the ox and the halacha follows the view of
Shmuel that even if the majority buy oxen for ploughing, this is not sufficient
for the buyer to force the seller to return his money.[13]
However, had the transaction been completed without payment having been made,
the seller could not force the buyer to pay.[14]
[1] Bava Kama 46b. The concept is also widely accepted in the
non-Jewish world, albeit with slightly different definitions. See https://en.wikipedia.org/wiki/Burden_of_proof_(law).
[2] In fact, the halacha is that this is true even it is more likely
that the claimant is right, as we will see later.
[3] Bava Metsia 100a.
[4] If the claim is that the item was stolen, the gemara tells us that
"we do not assume that people are thieves" (Shevuos 46b). Even if the
claim is that the object was lent to the muchzak, in most circumstances, if we
had to bet on who was telling the truth we would side with the one currently
holding it (see gemara there; Rambam Hilchos To'en v'Nitan 8:9-11 and Ra'avad
there).
[5] Bava Basra 36a.
[6] Shevuos 46b.
[7] Bava Metsia 102a-b. While Shmuel holds that the chazaka only has
effect regarding future usage, the final halacha is in accordance with the view
of R' Nachman, that even after another person has used it, the chazaka allows
us to retrospectively assume that this use was illegitimate. Thus even if the
landlord only comes after the full 13 months to claim an extra gold coin, the
renter must pay it.
[8] Bava Kama 27a-b. The springboard for this post is a recent correspondence
with a friend who teaches gemara to high school children. While researching the
subject matter that he is teaching, he came across a ruling given by a dayan in
a real dispute involving a youth group who ordered equipment including a
"professional casino table" for an evening. When it arrived, they
were greatly disappointed as the table was considerably smaller than the
standard size. The provider countered that the quality and function of the
table was professional and as no size was specified, they were not bound to
providing a table of 'professional' dimensions.
My
conclusion here regarding muchzakus is different to what both the dayan and my
friend assumed (the full ruling can be seen here). However, I also feel that
this discussion is not entirely pertinent to the casino table case, as there
nothing was purchased and even the rental of the table was not a significant
part of the costs involved. The main expense was paying for the transportation
of the equipment, and the halachic questions arising are different.
[9] Klal 7, siman 6.
[10] Once there is a general rule about what language will be taken to
mean (or even if Chazal decided that there is an objective doubt as to what
such language means), no-one is believed to say that he meant something else if
he did not specify. This is one application of the rule "דברים שבלב אינם דברים" – words kept in the heart are not considered
words.
[12] The difficulty with this explanation (and an additional difficulty
with the explanation of R' Shimon Shkop) is that Tosfos say only that the buyer
can refuse to pay unless the seller gives him a barrel. If my resolution
(or that of R' Shimon) is correct, the buyer could in fact back out from the
sale entirely.
[13] Bava Kama 46a-b.
[14] The general consensus is that this is true even if the majority of
ox buyers buy for slaughter. See Nesivos HaMishpat 232:12.
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