Rambam - 1 Chapter a Day

100 zuz.

For we assume that the seller accepted the purchaser’s offer. See also the parallel in Hilchot Ishut 7:19.

For we assume that he accepted the price stipulated by the seller.

I.e., in the custody of the court [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 222:2)].

In Hilchot Gezelah 4:9, the Rambam rules that if a person steals from one of five people, but does not know the identity of the person from whom he stole, he must reimburse each of the claimants. The difference between the two is that Hilchot Gezelah describes an instance where the person committed a transgression. Therefore, he is required to make restitution to each of the claimants. In this instance, he did not commit a transgression. Hence, according to the letter of the law, he is not required to pay more than once. Similar concepts are expressed in the following halachah.

At which time, he will resolve all questions of doubt.

The term chassid, translated as “pious,” refers to a person who is willing to go beyond the measure of the law.

I.e., according to the letter of the law he is not under obligation. Nevertheless, since he received the article, he does have a moral and spiritual obligation to reimburse the seller. The only way he can be certain that this obligation is met is by paying each of the claimants.
The Ramban and the Rashba differ and maintain that with regard to a sale, a purchaser does not have even a moral and spiritual obligation to pay each claimant. The Shulchan Aruch (loc. cit.) quotes the Rambam’s ruling. Sefer Me’irat Einayim 232:6 maintains that this applies only when each of the five makes a claim. If, however, they do not make a claim, and it is only the purchaser who is in doubt, he is not required to reimburse each one.

I.e., he admitted making a false oath. Sefer Me’irat Einayim 222:7 states that since he must return the stolen article for his repentance to be complete, he must repay all the claimants in order to be certain that he has discharged his obligation.
The Siftei Cohen 222:7 differs and states that the same rule applies even if the person does not repent, and witnesses come and testify that he made a false oath.

I.e., he is punished because he transgressed and is required to pay all the claimants. Bava Kama 103b equates this instance with the law from Hilchot Gezelah, for there is no difference whether one stole by physically taking an object from someone or by denying a legal obligation. In both instances, one has committed a transgression.

The situation described in all the clauses of this halachah can be described as follows: Two people claimed to have purchased the article from the seller. They both paid money, but only one paid the money with the consent of the seller. The other gave him the money against his will.
In the situation described in this clause, the seller’s word is accepted when he identifies one of the claimants as the one to whom he desired to sell the article.
The seller’s word is accepted based on the principle of migo - i.e., had he desired to lie, he could have lied more effectively. He could have said: “I never sold it,” or “I repurchased it.” (See Kiddushin 73b-74a and commentaries.)
The above represents the explanation of Rabbenu Chanan’el and Rabbenu Asher. Sefer Me’irat Einayim 222:1 contests this rationale, explaining that from the Rambam’s words, it appears that the seller is believed at all times, even when there are witnesses who testify otherwise. Since there is a general principle that a migo is overruled by the testimony of witnesses, there must be another rationale.
Rabbenu Yitzchak Alfasi and Rashi offer this explanation: While the article is in the seller’s possession, he is very careful and knows to whom he agrees to sell the article, lest he be forced to receive the adjuration mi shepara. Many authorities maintain that the Rambam follows Rabbenu Yitzchak Alfasi’s position.
The Maggid Mishneh offers a third explanation, stating that as long as the object is in his possession, the seller is considered like a judge who can vindicate a litigant as he sees fit.

According to Rabbenu Yitzchak Alfasi, this statement applies only when the seller received money from two individuals. If the seller received money from only one individual, his word is accepted, even when the object is no longer in his possession. This ruling is not accepted by Rabbenu Asher, who maintains that in all instances, once the article leaves the seller’s hands his testimony is no different from that of others.
With regard to this latter point, it is very difficult to reconcile the Rambam’s wording with the position of Rabbenu Yitzchak Alfasi, for the Rambam states that once the item is no longer in his possession, “he is no more than one witness.” Seemingly, this applies in all instances. See the commentary of the Kessef Mishneh for an attempt at resolving the issue.

Implied is that if the seller claims to know from whom he took the money willingly, the other claimant must take an oath prescribed by Scriptural Law to support his claim. The claimant whose claim is supported by the seller is not required to take an oath at all. For in this instance, the requirement to take the oath is merely Rabbinical in origin. Hence, it is nullified because of the testimony of the seller (Maggid Mishneh). The Kessef Mishneh does not accept this latter point.

I.e., the seller’s statements do not support either of the claimants’ assertions.

A Torah scroll, or in certain instances tefillin.

I.e., both the article and the money that would have to be returned are divided equally among the claimants.

If, however, only one of the claimants is in possession of the article, he is entitled to maintain possession. To expropriate it from him, the other claimant must produce proof that he was the one from whom the seller took money willingly. For we follow the principle: “When a person desires to expropriate property from a colleague, the burden of proof is upon him.”

Landed property is definite and specific; its identity is known. Therefore, it is always considered to be in the possession of its previous owner unless there is a formal legal change of ownership. The fact that another person is living on the property (for less than three years) is not considered proof of ownership.
Movable property, by contrast, cannot be distinguished as easily. Most often, there is no way that an article can be positively identified as belonging to its previous owner. Hence, the person in possession is presumed to be the legal owner.

See Chapter 15, Halachah 3.

According to Scriptural Law, a person who denies a claim lodged against him is not obliged to take an oath at all. Nevertheless, the moral character of the Jewish people declined in the era of the Talmud, and there were people who would deny claims even though they were liable. Now breaking an oath is a very severe sin, and few people would dare to do that. Hence, the Rabbis instituted a special oath, a sh’vuat heset, to require a defendant to acknowledge the claim against him. Nevertheless, a sh’vuat hesset is more lenient than other oaths, for the person making it is not required to hold a sacred object at the time of the oath. See Hilchot Sh’vuot 11:3 and Hilchot To’en V’Nit’an 1:3.
Several meanings are offered for the term hesset: Rashi (Sh’vuot 40b) interprets it as meaning “placed” - i.e., an oath that has been placed upon a person by the Sages – as opposed to one required by Scriptural Law. Others note the relation to the term mesit meaning “entice” or “encourage,” and interpret it as an oath that encourages the defendant to admit his responsibility.

See Hilchot To’en V’Nit’an, Chapter 1.

And the purchaser takes possession of the produce through a kinyan (Maggid Mishneh).

This factor is significant, as reflected in the conclusion of the halachah. The public domain is not considered the property of either of the litigants.

A severe oath, as required of a person who wishes to expropriate property belonging to someone else.

The Rambam follows the view of Rabbenu Yitzchak Alfasi, who delineates the situation as follows: The purchaser is considered to be in possession of the money that the seller is demanding and the seller has no proof that he did not pay. The purchaser has also taken possession of the fruits, and the seller admits selling them to him. Nevertheless, since the produce is in the public domain, it is not considered as having entered the purchaser’s domain entirely. He is therefore required to take a severe oath in order to take possession of it.
This approach is also accepted by the Shulchan Aruch (Choshen Mishpat 91:9) and the Ramah. (See his Darchei Moshe.) Note, however, the gloss of the D’rishah on the Tur, and the Siftei Cohen (Choshen Mishpat 91:33), which interprets Sh’vuot 45a, the source for these laws, in a different manner.

Once the produce enters the domain of the purchaser, he is considered as having the right of possession unless it is proven otherwise. He must, nevertheless, take a sh’vuat hesset, as is required of everyone who denies entirely a claim lodged against him.

Since the produce is still in the seller’s domain, he is considered to have the right of possession unless it is proven otherwise. Hence, he withholds transfer of the produce in lieu of the money that he claims not to have received. He must, however, take a sh’vuat hesset, because the purchaser claims to have paid him money and desires either the produce or the return of the money.
If the produce is in a domain belonging to both of them, it is divided equally.

This is the fundamental difference between the instance mentioned in this halachah and that mentioned in the previous halachah.

Based on the Rambam’s Commentary on the Mishnah (Sh’vuot 7:6, which has its source in Sh’vuot 48a), it is possible to explain that although seemingly redundant, it is necessary to state both this halachah and the previous two. If only the laws regarding produce were stated, we might think that with regard to coins, the purchaser would be granted the option of taking the oath regardless of the money-changer’s statements, for it is uncommon for a money-changer to give coins unless he first receives payment for them. Conversely, if only the laws regarding coins were stated, we might think that with regard to produce, the storekeeper would be granted the option of taking the oath despite his admission that he sold it, for it is common for a store-keeper to give produce to a purchaser without receiving payment for it.

I.e., the cow was acquired by the transfer of the donkey, as stated in Chapter 5, Halachah 1. The fact that the animal was acquired by exchange is significant. If it had been acquired by the payment of money, it would not have entered the new owner’s domain until meshichah was performed. And at the time of meshichah, it would have been known whether or not the cow had already calved (Maggid Mishneh).

While still in the domain of its former owner.

And formalizes the transaction through the transfer of money or a legal document.

I.e., before the transaction was completed; the offspring thus belongs to him.

And he is therefore the owner of the offspring.

This is another application of the principle: “When a person desires to expropriate property from a colleague, the burden of proof is upon him.” Since the offspring is presently in the domain of the previous owner, and the new owner desires to take it as his own, he must bring at least two witnesses who will testify to the truth of his claim.

The rationale is that it is the previous owner’s possession of the offspring, not his claim, that establishes his right to it.
The Maggid Mishneh explains that if the previous owner says that he does not know when the cow calved or the servant gave birth, the new offspring is not awarded to him. Instead, it is divided. His possession aids him in that the offspring is not granted to the new purchaser. The Kessej Mishneh objects to this interpretation. The Tur and the Ramah (Choshen Mishpat 223:2) differ with the ruling of the Maggid Mishneh.

I.e., a domain that does not belong to either the seller or the purchaser. The same law would also apply in the public domain itself. The comer of the public domain is mentioned because transactions were frequently conducted in such a place (Tosafot, Bava Metzia 100a).

In this instance, neither the previous owner nor the new owner is in physical possession of the calf. Nevertheless, it is awarded to the previous owner because he possesses chezkat mara kama - i.e., he was known to be the owner of the pregnant animal or maidservant before she gave birth. Hence, unless evidence to the contrary is presented, we assume that she gave birth while still in his possession.
As evident from the following halachah, according to the Rambam this ruling applies only when the previous owner makes a definite claim, i.e., he is certain that he was in possession of the animal or maidservant when she gave birth (Maggid Mishneh).

Rashi (Bava Metzia 100a) explains that the previous owner is required to take a Scriptural oath as a modeh b’miktsat, a defendant who admits a portion of the plaintiffs claim- i.e., the plaintiff is demanding the cow and its calf, and the defendant is willing to give only the cow.
This applies, however, only when the purchaser issues a definite claim. If he is unsure of his claim, the seller is not required to take a Scriptural oath. From Halachah 13, however, it appears that he is required to take a sh’vuat hesset that he is unaware where the offspring was born.

Chapter 5, Halachah 1.

If, however, the offspring is located in a domain belonging to one of the litigants, the owner of that domain acquires it.

Since neither of the parties is making a definite claim of ownership, nor is the offspring located in the domain of either of them, neither is awarded the full right of ownership, and the offspring is divided between them; i.e., it is sold and each is given half the proceeds.
The Maggid Mishneh protests this ruling, explaining that this law is the subject of a difference of opinion between the Sages and Sumchos (Bava Metzia 100b). Sumchos maintains that since the ownership of the property is in doubt, it should be divided, while the Sages maintain that in this instance as well, the previous owner is considered to have a claim of ownership, and we follow the principle: “When a person desires to expropriate property from a colleague, the burden of proof is upon him.”
The Maggid Mishneh notes that in Hilchot Nizkei Mammon 9:2-3, the Rambam rules according to the Sages. Therefore, he questions why in this instance he follows the view of Sumchos. The Maggid Mishneh explains that one could make a distinction in this case, saying that since, as mentioned above, the previous owner does not have a definite claim and the offspring is located in a neutral domain, one might say that even the Sages would accept the view of Sumchos. Nevertheless, the Maggid Mishneh explains, the passage in Bava Metzia does not lend itself to such an interpretation.
The Tur and the Shulchan Aruch (Choshen Mishpat 223:2) do not accept the Rambam’s ruling in this instance and maintain that the burden of proof is on the purchaser. Otherwise, the offspring is awarded to the previous owner. The Shulchan Aruch does, however, cite the Rambam as a minority opinion.

For we interpret his silence as acquiescence to the claim of the other litigant.

He is not, however, required to take a Scriptural oath as one who is modeh b’miktsat, one who agrees to a portion of the plaintiffs claim. Three reasons are given to explain why the seller is not placed in the latter category:
a) A Scriptural oath is never taken with regard to landed property or servants;
b) The smaller property or servant is considered to be heilech - the owner is willing to transfer it immediately to the purchaser; thus, there is no outstanding admission - it is as if he claims he is not liable to the purchaser at all (see Hilchot To’en V’Nit’an 3:15);
c) The claim that the seller is admitting is not the same as that which the purchaser is pressing; it parallels a situation where a plaintiff claims to have purchased wheat, and the seller claims that he sold him barley. In such an instance, an oath is not required, as stated in Hilchot To’en V’Nit’an 3:8.

As stated above, the seller’s silence is considered an admission of the truth of the purchaser’s claim.

Although the purchaser is issuing a definite claim while the seller is unsure, the seller’s possession of the article is still considered to be the dominant factor.

The Maggid Mishneh explains that such an oath was instituted - although it clarifies nothing - for the following reason: If it were not required, a defendant would always say “I do not know” and thus not be held responsible to take an oath, rather than deny entirely the claim lodged against him, and be required to take an oath.

The Maggid Mishneh notes that the Rambam’s decision differs from the ruling in Bava Metzia 8:4, his source. The reason is that, as the Rambam explains in his Commentary on the Mishnah, the Mishnah is speaking about an instance when - because of the principle of gilgul sh’vu’ah - the seller is required to take a Scriptural oath. Since he cannot take that oath - because one cannot take a Scriptural oath when one is unsure - the purchaser’s claim is vindicated. In our halachah, by contrast, the oath is Rabbinic in nature, and such an oath can be taken despite the uncertainty.

At the time the owner of the donkey performs meshichah on the cow, the donkey becomes the property of the owner of the cow (Chapter 5, Halachah 1). Thus, the question is whether the donkey was alive when meshichah was performed on the cow. If it was, the owner of the cow had already acquired the donkey, and the loss is his. If the donkey was not alive, the owner of the donkey must suffer the loss, and he is obligated to return the cow.

For the donkey was originally his and was found in his possession. Therefore, he must show that it was alive at the time meshichah was performed. According to this view, if the donkey was not in a domain belonging to its owner at the time it was discovered to be dead, even if it was in a neutral domain, the burden of proof shifts to the owner of the cow.
The above is the Rambam’s interpretation of Ketubot 76a and follows that of Rabbenu Yitzchak Alfasi. It is also quoted by the Shulchan Aruch (Choshen Mishpat 224:1). There are many other interpretations of that passage. The Ramah follows the interpretation of the Tur and Rabbenu Asher, who maintain that the burden of proof is on the owner of the cow, for at the time of meshichah he acquired the cow, no matter where it was located. Hence, when the doubt arose - when the donkey was discovered to be dead - it had already entered his possession.

As stated in Hilchot Shechitah 6:12, if such a perforation occurred before slaughter, the animal would be rendered trefah, unfit to be eaten. The question the halachah revolves around is whether it can be proved that the perforation took place while the cow was in the possession of the seller, not the butcher. If that fact can be established, the sale is nullified. If not, the burden of proof shifts to the butcher, because the cow was in his possession when the doubt arose.

If there is no blood on the wound, we assume that it was caused after the animal was slaughtered (Hilchot Shechitah, ibid.). See, however, Siftei Cohen (Yoreh De’ah 48:20), which rules that in the present age, we are stringent and forbid such an animal unless a substantial loss is involved.

Thus, if it was sold by the seller to the butcher within three days, the sale is considered to have been conducted under false premises - the butcher thought that he was purchasing a kosher animal - and it is nullified.

We do not know whether the animal became trefah before it was sold or afterwards.

According to the Rambam, this ruling applies whether the butcher has paid for the animal already and seeks to have his money returned, or has not paid as yet and desires to avoid paying. The Maggid Mishneh cites other commentaries that interpret the passage differently.

I.e., it was only after the butcher had taken possession of the animal - and slaughtered it - that the doubt arose.
The Kessef Mishneh and others question how the Rambam distinguishes between this instance and the previous halachah, where he says that the burden of proof is on the original owner of the donkey.

Even when he is expropriating money that is in the possession of the butcher, the seller is not required to bring proof to substantiate his claim.