Rambam - 3 Chapters a Day

As evident from Chapter 6, Halachah 7, the defendant must know of the presence of the witnesses.

I.e., he speaks in a serious tone, which indicates the earnestness of his intent (Maggid Mishneh). The Kessef Mishneh quotes the Tur (Choshen Mishpat 81), which states that the person must say: “I acknowledge owing....”

I.e., he cannot claim that he made the statements facetiously.

The Siftei Cohen 81:20 states that with this expression, the Rambam implies that if the defendant charges the witnesses with serving in that capacity, the defendant cannot offer any argument to dispute the fact that he was indebted to the creditor.

For whenever the testimony of two witnesses would create a financial obligation, the testimony of one witness creates an obligation to take an oath. Although the Maggid Mishneh mentions that there are certain authorities (among them, Rav Zerachiyah HaLevi) who do not accept the Rambam’s ruling, the Shulchan Aruch (Choshen Mishpat 81:10) cites it as law. The Siftei Cohen, however, 81:22 elaborates in support of Rav Zerachiyah HaLevi’s position.

For it would make no sense for him to make such allegedly false statements in the presence of that person and witnesses. If his entire purpose was to create the impression that he was not wealthy, he could have just as easily claimed to have owed another person.

For as stated in Hilchot Malveh V’Loveh 11:1, a person who loans money to a colleague in the presence of witnesses is not obligated to repay him in the presence of witnesses.

For three people are considered to be a court.

Which would have the same legal power as a promissory note.

Hilchot Malveh V’Loveh 11:1.
As mentioned in the notes on that halachah, the Ra’avad differs with the Rambam and maintains that once the borrower gives instructions to the witnesses, there is no need to consult with him again. The Shulchan Aruch (Choshen Mishpat 39:2) mentions both opinions without stating which one should be followed.

See the parallel in Hilchot Malveh V’Loveh 24:3.

In such an instance, the defendant will assume that the court will have a legal record composed for the plaintiff. Hence, he will not pay him without demanding that the legal record be returned to him. In the subsequent instances, however, he may not be aware that a legal record was composed and thus its composition will work to his disadvantage as the Rambam continues to explain (Sefer Me’irat Einayim 39:19).

The Siftei Cohen 39:18 quotes the statements of the Nimukei Yosef, which maintains that since the admission was made on the defendant’s initiative, and the court was not holding session in its fixed place, the admission is not considered to have been made in the presence of judges. If, however, the admission is made in response to the claim of the plaintiff, it is given that status.

From these statements, one could surmise that if the plaintiff is present at the time the defendant makes the admission and asks that a legal record be composed, his request should be heeded. In such a situation, the difficulty cited by the Rambam does not apply (Meiri).

Without this being observed by witnesses.

In which instance, the defendant’s word would not be accepted if he claimed that he paid the debt. Thus, composing the legal record could cause the defendant a loss.
The Shulchan Aruch (Choshen Mishpat 39:10) concludes from the Rambam’s statements in this and the following halachot that if judges give the plaintiff a written judgment that the defendant is liable to him, as long as that document is in the plaintiff’s hands, the defendant’s word is not accepted if he claims to have paid the debt. The Tur and the Ramah, however, cite other opinions, which do not accept this principle.

This applies to all movable property, even an entrusted object that is in the watchman’s possession [Shulchan Aruch (Choshen Mishpat 39:8)].

The defendant was in possession of landed property, and the plaintiff claimed that it belonged to him.

I.e., we are speaking about a claim involving a specific portion of land. Hence, it is impossible for it to be taken from the defendant twice.

I.e., we do not assume that the witnesses would have erred and prepared the document when they should not have (Maggid Mishneh).
After quoting this law, the Shulchan Aruch (Choshen Mishpat 39:11) states: “There are those who maintain that we suspect [the possibility of error] on the part of the scribes of the present era with regard to the responsibility of the purchasers.” Thus, though the document obligates the defendant, the purchaser’s property is not considered to be on lien to the debt.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 39:12) states that the question arises when the document is signed by only two people.

Although the record is acceptable as an admission of the debt, it is:
a) not binding on the purchasers of the defendant’s property; if the defendant does not have the resources to pay the debt, the plaintiff cannot expropriate the property of the purchasers;
b) not regarded as proof that the defendant did not pay the debt; even though it is in the plaintiff’s possession, the defendant may claim that he made restitution.

Hilchot Malveh V’Loveh 11:1.

Halachah 3.

I.e., he claimed to have paid the debt after he was obligated to do so by the court. Since he complied with the legal process until this point, we presume that he continued to do so. Hence, we do not doubt his word when he claims to have paid his debt.

In certain instances (see the following halachah), there is a difference between the laws that apply depending on which of these expressions the judges used. “You are obligated to pay him” implies that this is the law, but the judges have not issued a direct command for the defendant to do so. “Go out and pay him” implies that the judges have issued such a direct command. In this instance, however, there is no difference between the two situations.

I.e., he made this statement after leaving the court and returning without the defendant.

Rav Hai Gaon, the Ramban, and others maintain that a defendant who was required to take a Scriptural oath can be required to take a sh’vu’at hesset that he in fact took the oath required of him. In his Kessef Mishneh, Rav Yosef Karo clarifies that the Rambam would not accept this ruling, as he states in Hilchot Sh’luchin V’Shutafin 10:2: A person is not required to take a sh’vu’at hesset unless the plaintiff lodges a claim against him that, if found liable, would require him to make financial restitution. If, however, the claim would require only that the defendant take an oath, a sh’vu’at hesset is not required. And in his Shulchan Aruch (Choshen Mishpat 87:27), Rav Yosef Karo quotes the Rambam’s view.
In the following halachah, the Rambam does, however, give advice to the plaintiff to prevent such a difficulty from arising: He should state that he will accept the defendant’s oath only when made in the present of witnesses.
With regard to plaintiff’s who are required to take Rabbinic oaths to collect their claim, all authorities agree that they must bring proof that they took the oath before they can collect their due.

I.e., they accompanied him from the time that the court instructed him to take the oath until the present.

I.e., give him a clear directive to pay.

I.e., they accompanied him from the time he was held liable until the present. The Ramah (Choshen Mishpat 79:13) states that the fact that the witnesses saw that once the plaintiff demanded payment from the defendant and the defendant refused is not sufficient proof that he did not pay him at a later date.

I.e., if he claims to have paid a second time, his statements are not accepted.

Bava Metzia 17a explains that this wording implies that although the law appears to indicate that the person is liable, the judges are somewhat unsure of the matter and did not give him an explicit order to pay.

I.e., even though in fact he lied, we assume that his intent was not to perpetrate deceit, but to buy time and that if he was instructed to pay, he would. Hence, we do not assume that he is lying if he claims to have paid the debt afterwards.

The Shulchan Aruch (Choshen Mishpat 79:14) qualifies this ruling, stating that it applies only to a person who accepts the rulings of the judges. Different rules apply, however, when a person was placed under a ban of ostracism by a court because he steamed out in protest after hearing a judgment against him. If he later claims to have paid his debt, his statements are not accepted.

The Rambam’s ruling follows the principle he states in Hilchot Malveh V’Loveh 15:1, that even after the loan was given, the lender has the right to add new stipulations with regard to payment. As mentioned in the notes on that halachah, many other authorities do not accept this principle.

We do not say that his previous acknowledgment is binding, and despite the testimony of the witnesses, he is liable for the debt.

I.e., he is freed of liability.

For he changed his claim before the witnesses testified.

As stated in Chapter 6, Halachah 3, with regard to a person who denied taking a loan, and after witnesses testified that he took the loan, claimed to have repaid it.
The Maggid Mishneh maintains that this law is the product of the Rambam’s reasoning and does not have a direct source in the Talmud. The Baal HaTerumot maintains that it is a logical derivative of the statements in Gittin 14a.
The Maggid Mishneh also mentions that there are those who point to an apparent contradiction between the Rambam’s statements here and his ruling in Hilchot Malveh V’Loveh 14:4, which describes the following situation. The lender produces a promissory note, demanding payment from the debtor, claiming that he was not paid at all. The borrower claims that he repaid half the debt, and witnesses testify that the entire debt was repaid. The Rambam rules that the borrower must take an oath concerning the half he claims to have paid, and then pay the other half. Why, in Hilchot Malveh V’Loveh, does the borrower not follow the principle stated here and change his plea, claiming to have paid the entire debt as the witnesses testify?
The Maggid Mishneh states that there are some authorities who maintain that the borrower in fact has that option, and if he claims that he remembers to have paid the entire debt, his word is accepted. In Hilchot Malveh V’Loveh, the Rambam is speaking of a situation in which the borrower maintains that the witnesses erred and that he did not pay the entire debt. Alternatively, the Maggid Mishneh states, a distinction between the two cases can be made, for Hilchot Malveh V’Loveh speaks about a debt supported by a promissory note, while in this instance, we know that the borrower is liable because of his own admission.
The Nimukei Yosef [Bava Metzia, quoted by the Ramah (Choshen Mishpat 79:3)] does not accept the first resolution offered by the Maggid Mishneh. According to his understanding, the defendant is given the option of saying “I remembered” only until witnesses come and testify. Once they testify, even if their testimony is in the defendant’s favor, he cannot change his plea. See also the statements of the Sefer Me’irat Einayim 79:9.

I.e., even in court. Needless to say, this applies to statements made outside of court.

Rabbenu Yitzchak Alfasi requires that the litigant explain the reason for his change of claim even when witnesses did not contradict his testimony. The Rambam, however, follows the approach of his teacher Rav Yosef MiGash and grants greater leniency.
The Kessef Mishneh quotes a responsum of the Rashba, which states that the defendant may not change his claim from being liable to not being liable, or vice versa. He may change only the rationale why he claims he is not liable. These concepts are quoted by the Shulchan Aruch (Choshen Mishpat 80:1).

And as the Rambam mentions in the conclusion of the halachah, it is possible that he was advised to change his claim by other people.

The Ramah (Choshen Mishpat 79:9) states that even if it appears that he changed his claim because he knew that witnesses would come and contradict his first claim, as long as they did not testify in court, he has the right to change his claim.

There are texts of the Mishneh Torah that state “the first claim,” but “the final claim” is a more correct version [Bedek HaBayit (Choshen Mishpat 80)].

Bava Batra 31a gives an example of such an explanation. A person in possession of a field claimed that it had belonged to his ancestors, while another person sought to expropriate from him, claiming that it had belonged to his ancestors, bringing witnesses who testified to that effect. The person in possession of the property then changed his claim, saying: “It did originally belonged to your ancestors. It has, however, belonged to me for so long, it is as if it belonged to my ancestors.” The Rambam quotes this law in Chapter 15, Halachah 6; see also Chapter 9, Halachah 6.

To quote a frequently stated Talmudic expression: When a person desires to expropriate property from a colleague, the burden of proof is on the plaintiff. Or to cite a popular secular expression: Possession is nine tenths of the law.

And it was stolen from me.

Although this is the general rule, there are some exceptions, as stated in the following halachot.

For a debt the plaintiff owes him.

Just as his word is accepted with regard to the claim that he purchased the article, his word is accepted when he claims that it was given to him as security.

I.e., he is considered a person who is required to take a severe Rabbinic oath before collecting his due. (See Chapter 1, Halachah 2.) A severe oath is required, because the roles are reversed and the defendant becomes the plaintiff. Instead of seeking to maintain possession of property, he is seeking to expropriate a debt from the person who was the plaintiff.

See Hilchot Malveh V’Loveh 13:3, which mentions the law stated by the Rambam here. In that halachah, the Rambam also answers a question that a reader might be prompted to ask: Why do we not free the defendant of the responsibility for the oath because of the principle of miggo? I.e., had the defendant desired to lie, he could have claimed to have purchased the article.
In response, the Rambam states: “We do not employ the principle of miggo to free a person of the responsibility to take an oath, but only to free him of financial responsibility.” As stated in the notes on that halachah, the Rambam’s ruling is accepted by the Sephardic authorities and cited by the Shulchan Aruch (Choshen Mishpat 72:17). The Ashkenazic authorities (see Tur and Ramah) differ with the Rambam and maintain that a person is not required to take an oath in this situation.

That we presume an article belongs to the person in whose possession it is found.

See Halachah 9, which gives an inclusive definition of this term.

The rationale is that since these articles are frequently rented out or lent out, the fact that they are found in a particular person’s possession is not considered proof of his ownership. For it is possible that he borrowed them or rented them from their owner.
The Shulchan Aruch (Choshen Mishpat 133:5) states that this principle applies regardless of how long the article was in the domain of the person presently in possession of it. Even if it was in his possession for three years, it must be returned to its owner.

See Halachah 5.

And generally, we are very stringent when it comes to expropriating property from heirs.

I.e., it is possible that the heir may not have a definite claim that the article belonged to his father’s estate. Although the article is found in the estate he inherited, he may not know how - or whether - his father acquired it. Thus, on the basis of his own knowledge, he would not be able to require the owner to take a sh’vu’at hesset. Nevertheless, as mentioned on several occasions (e.g., Hilchot Sh’luchin V’Shutafin 7:1), we advance claims on behalf of an heir that his father could have advanced. It must, however, be emphasized that in Chapter 9, Halachah 5, the Rambam states that he personally does not accept this ruling.
The Shulchan Aruch (loc. cit.) does not require an oath, and the Ramah cites the view of the Geonim. All authorities agree that if the heir lodges a definite claim that his father purchased the article, the owner must take a sh’vu’at hesset.

That an article that is made to be rented or lent must be returned to its original owner.

I.e., he brought the article to court or witnesses testified that the article is in his possession.

For then the argument the Rambam continues to present does not apply.

I.e., he could deny possession of the article.

I.e., we assume that if he desired to lie, he would have told the most effective lie.

The Maggid Mishneh explains that the Rambam’s fundamental principle is that we do not even suspect that a person has stolen unless there is circumstantial evidence leading to that conclusion. For that reason, even if the original owner claims: “I lent my article to so-and-so, and he sold it to you,” his claim is not accepted. For saying so is equivalent to saying that he stole the article, and we do not suspect theft. See also Halachah 7 and notes.

Not even a sh’vu’at hessel.

I.e., the owner of the article is not lodging a definite claim against the defendant. His complaint that his article is missing is general in nature. He is not lodging a specific claim against the defendant. Hence, an oath is not required, as stated in Chapter 1, Halachah 7 (Kessef Mishneh).

I.e., this is speaking about a situation where the defendant claims to have purchased the article from another person.

Hilchot Geneivah 5:2.

This applies even if the owner of the article is not known to sell his personal property (Maggid Mishneh).

The commentaries have questioned why there is a difference between ordinary articles and articles made to be lent or rented out. Among the explanations given is that the plaintiff’s word is accepted based on the principle of miggo. Had he desired to lie, he could have claimed that he lent or rented the article to the defendant.
The Bayit Chadash questions this explanation, noting that the principle of miggo is never used to expropriate property from a person. In this situation, since the defendant is in possession of the movable property, taking it from him is considered to be expropriating it.
The Siftei Cohen 133:13 resolves this difficulty, explaining that since the owner reimburses the person in possession, he is not considered to be expropriating property from him.

This reflects one of the principles followed by the Rambam: that although the concept of miggo may be used to free a person from financial responsibility, it may not be used to free him from the obligation to take an oath. To apply the principle in this context: Had the defendant claimed: “I purchased the article from you,” he would have been released after taking a sh’vu’at hesset, a more lenient oath. Nevertheless, we do not say that had he desired to lie, he would have defended himself in that manner, but instead, require him to substantiate his claim by taking a severe oath (Kessef Mishneh).
As mentioned on several occasions, the Ashkenazic authorities do not accept this principle. Similarly, in this instance, they require only the more lenient oath.

This is speaking about a situation where the owner does not claim that he lent or rented out the article, but instead, claims that his property was stolen. There is, however, no widespread knowledge of that fact in his community.

The Maggid Mishneh explains that the rationale for this law is stated in Halachah 5: Unless there is reason for suspicion, we do not suppose that a person will steal property. The Ra’avad objects to the Rambam’s ruling, maintaining that the law is referring to a situation where the plaintiff claims that he lent the article to a colleague and that colleague sold it to the defendant. Hence, just as the person who sold the property to the defendant would have had to return the article to the plaintiff; so, too, the defendant must return it to him.
The Maggid Mishneh understands the Ra’avad as maintaining that the plaintiff should receive his article without making any payment to the defendant. He questions such an approach, noting that our Sages have protected a person who purchased property from a thief, enabling the owner to receive his property, but requiring him to reimburse the purchaser (Hilchot Geneivah 5:11). Here, too, he argues, the borrower who sold the article is a thief. Therefore, at the very least, the defendant should be reimbursed.
The Rambam’s ruling is quoted by the Shulchan Aruch (Choshen Mishpat 133:7). The Tur and the Ramah quote the Ra’avad’s view.

The commentaries have noted that from this halachah, it would appear that all people are “wont to sell their personal property,” while in Chapter 9, Halachah 4, he makes a distinction between a person who is wont to sell his property and one who is not.
Although the wording is the same in both halachot, the intent appears to be different. In Chapter 9, the Rambam is speaking about a situation where the person is seen taking property from a colleague’s house in suspicious circumstances. Hence, if the owner is not known to be unique and more willing to sell his personal property than most people, we give him the benefit of the doubt. In this situation, by contrast, there is nothing suspicious. Therefore, the owner is not given any special consideration. Since there is a possibility that any person will sell his personal property, the defendant is given the upper hand.

As stated in Halachah 3. Since the article is seen in the defendant’s possession, he cannot claim that his word should be accepted on the principle of miggo - i.e., had he desired to lie, he could have claimed to have returned the article (Siftei Cohen 133:15).

As stated in Halachah 1.

Rabbenu Chanan’el and Rabbenu Yitzchak Alfasi offered this interpretation before the Rambam’s time. Similarly, in subsequent generations, as the Maggid Mishneh testifies, it was followed by most sages, including Rabbenu Asher, the Rashba, Rabbenu Nissim, and others. The Maggid Mishneh also emphasizes that with the closing clause of this halachah, the Rambam resolves many of the differences that might arise between his interpretation and that of the others.

Thus, the fact that another person has these articles in his possession is not considered to be proof of ownership.

I.e., the person in possession of them is presumed to be the rightful owner.

I.e., the position mentioned in Halachah 9.

See Bava Metzia 116a.

Homilies and ethical teachings of our Sages.

The Rambam derives two concepts from the Talmud’s mention of Ravva’s conduct:
a) From the fact that the Talmud singled out Ravva’s conduct, it is obvious that ordinarily such articles are not considered to be “made to be lent or rented out”;
b) From the fact that Ravva nevertheless expropriated the articles, we see that these laws should be adapted to fit individual situations.

The Ra’avad differs with the Rambam’s ruling and states that despite all the Rambam’s pronouncements, the opinion of the Geonim, which the Rambam rejected should be followed.

As evident from the Rambam’s words to follow, the intent is that since people give a craftsman articles to repair, the fact that an article is in his possession is not proof that he owns it. It could have been given to him to repair.
As stated by the Shulchan Aruch (Choshen Mishpat 134:1), this applies only with regard to the type of articles that he repairs, and not to other articles. Putting it plainly, a computer repairman may lodge a claim with regard to sofa.

For all types of articles are given to craftsmen to repair.

The intent is that not only the owner, but that others - at least two witnesses also - can see (Sefer Me’irat Einayim 134:1). Otherwise, the laws mentioned in Halachah 2 apply.

This law applies even if the witnesses do not know that the article was given to the craftsman, but merely that it did belong to the presumed owner [Shulchan Aruch (loc. cit.)].
When, however, there are no witnesses that the article belonged to the owner, the craftsman’s word is accepted, based on the principle of miggo. Had he desired to lie, he could have denied that the article ever belonged to the person who claims to have owned it [Rambam’s Commentary on the Mishnah (Bava Batra 3:4); Maggid Mishneh].

The Tur and Shulehan Arueh (loc. cit.) state that this ruling applies even if the article remained in the craftsman’s possession for several years.

I.e., with regard to a craftsman, the same laws that apply to articles that are made to rent or lend out (Chapter 8, Halachah 3), are applied to all articles.

Rabbenu Yitzchak Alfasi rules in this manner.

According to this opinion, although it is the craftsman who identifies the article as belonging to the owner, those statements are used against his own interests. For once the article is identified in this manner, the craftsman’s word is not accepted.

The point that is difficult for the Rambam to accept is the first ruling: that even if there are no witnesses stating that the article belonged to the owner, we do not accept the craftsman’s word. On the surface, his word should be accepted on the basis of the principle of miggo, as mentioned in the notes above.
The Ramban supports the opinion of Rabbenu Yitzchak Alfasi, explaining that if the owner were not given the upper hand, people would hesitate before entrusting their property to a craftsman. The Shulehan Arueh (loc. cit.) quotes the Rambam’s ruling.

And witnesses, as explained in the notes on the previous halachah.

I.e., since there are no witnesses that the article was given to him, he could deny the claim entirely. Hence, even if he does not deny the claim, but maintains that he does not have to return the article for another reason, his claim is accepted on the basis of the principle of miggo.

I.e., since the claim “I returned it” would have been accepted, we also accept other claims, based on the principle of miggo.

See Hilchot Malveh V’Loveh 11:1.

Sefer Me’irat Einayim 134:8 explains that this refers to a situation where the article was seen in the craftsman’s possession before the matter was brought to court. If, however, the craftsman brought the article to court, his claim would be accepted on the basis of the principle of miggo. Had he wanted to lie, he would not have had to bring the article to court. It is questionable, however, if such an interpretation could be understood from the Rambam’s wording.

Or seen by witnesses who testify that it belonged to the presumed owner.

Hilchot Sechirut 11:7-8. As stated in that source, a worker was given the opportunity to take an oath and collect his wage. That, however, applies when the argument is whether or not the wage was paid. With regard to the amount of the wage, the employer is given the upper hand. Nevertheless, when - and only when - the worker can produce witnesses that he was hired by the employer, in consideration of the worker’s position the employer must take an oath holding a sacred article, rather than a sh’vu’at hesset.

Since he is seeking to expropriate property - for he admits that the article is not his - he must take a more severe oath.

In Chapter 8, Halachah 2. The craftsman’s claim is believed because of the principle of miggo. Had he desired to lie, instead of claiming that he was owed a wage, he could have claimed that the article belonged to him.

The Shulchan Aruch (Choshen Mishpat 134:5) states that this applies even with regard to utensils that were given to him while he practiced his profession. He quotes opinions that qualify that statement, however, stating that the law applies only to articles that remained in his possession for a long time afterwards. Since they were left in his possession for such an extended period, we assume that they belong to him.

This applies when the craftsman’s son claims that he personally acquired the property. If, however, he claims to have inherited the property from his father, his claim is no stronger than his father’s would have been [see Shulchan Aruch (loc. cit.:6)].

Chapter 8, Halachah 1.

Sefer Me’irat Einayim 90:28 interprets this to mean “after a significant time has passed.” For since he claims that he lent the articles to the defendant, it is not appropriate for him to demand their return immediately.

The laws that apply when the owner claims that the article was stolen are mentioned in Hilchot Geneivah 5:11-12.

Who will testify that the defendant left the owner’s domain with the utensils. Otherwise, the defendant’s word would be accepted on the basis of the principle of miggo. Had he desired to lie, he could have denied the matter altogether (Sefer Me’irat Einayim 90:29).

The Siftei Cohen 90:21 emphasizes that the article should be returned, and then the owner should be required to take the sh’vu’at hesset if the defendant lodges a claim that the article was expropriated from him unjustly. For a plaintiff never takes a sh’vu’at hesset to expropriate property. See also the conclusion of the following halachah.
Note the Ra’avad’s gloss on the following halachah, from which it is apparent that he requires the owner to take a severe Rabbinic oath before expropriating the article. The Shulchan Aruch (Choshen Mishpat 90:11), by contrast, speaks about the owner taking a sh’vu’at hesset.

The Maggid Mishneh states that this law applies only when witnesses have seen the utensil in the possession of the defendant. If not, the defendant’s word is accepted on the basis of the principle of miggo. Had he desired to lie, he could have claimed that he had returned the article. Compare to Halachah 2.
Kin’at Eliyahu notes a slight difficulty with this statement, because previously, the Maggid Mishneh had advanced the contention that a person who seizes property from a colleague in the presence of witnesses must return it to him in the presence of witnesses.

If the owner would frequently sell his personal property, the likelihood of the defendant’s claim being true would be increased, as the Rambam continues to explain.

Obviously, the fact that he hid articles when this is not the way he ordinarily carries them creates suspicions. Note the contrast in the later clauses of the halachah.

I.e., there are private and personal articles that a person would not ordinarily carry in public, but these are not of that type.

We could assume that the owner asked the purchaser to hide the utensils when taking them home so as not to embarrass him and make it known that he was forced to sell his property (Sefer Me’irat Einayim 90:30).

For if the person taking the article were stealing it, he should have attempted to conceal it.

When he supports his claim with a sh’vu’at hesset.

With this statement, the Rambam departs from the position of his teacher, Rabbi Yosef MiGash, who does not make a distinction whether or not the articles were made with the intent of being lent out. Although the Ra’avad and Rashi (Sh’vuot 46b) also follow the opinion of Rabbi Yosef MiGash, the Shulchan Aruch (loc. cit.) follows the Rambam’s approach.

This is a frequent enough possibility for it to be considered in support of the defendant’s position.

Chapter 8, Halachah 3.

Our translation follows the early printings and authoritative manuscripts of the Mishneh Torah. The standard printed text follows a different, and slightly more complicated version. See also Sefer Me’irat Einayim 90:33.

I.e., when a person removed a utensil from a colleague’s house, and the owner claimed that it was only lent to him.

For the heir is not given any greater rights than the person from whom he inherited the property.

As would be required if the person in whose possession the article was found was alive.

For even a sh’vu’at hesset can be required only when a person lodges a definite claim against a colleague (Chapter 1, Halachah 7). Generally, an heir will not have firsthand knowledge of his father’s business activities. Hence, he will not be able to lodge a definite claim against the owner of the article.

I.e., the opinion of the Geonim mentioned at the conclusion of Chapter 8, Halachah 3, which requires the owner take a sh’vu’at hesset even for an indefinite claim.

The Rambam’s ruling depends on the version of Bava Batra 33b that he and Rabbenu Yitzchak Alfasi possessed. The Ra’avad, Rashbam, and Tosafot, however, follow the standard text of the Talmud, which states: “I will harvest the produce of so-and-so’s date palm.” The Tur and the Shulchan Aruch (Choshen Mishpat 137:2-3) follow this interpretation.
The Maggid Mishneh also notes that Bava Kama 91b states that if a person cuts down a colleague’s tree, and when sued for payment claims that the colleague told him to cut it down, his word is not accepted and he is held liable. He explains, however, that a distinction can be made in this instance, because the person publicized his intent before cutting down the tree.

While the tree is attached to the ground, it is considered to be landed property. As mentioned in the conclusion of Halachah 4 (and in Chapter 11, Halachah 1), landed property is always considered to be in the possession of its original owner unless it is proven otherwise. Thus, if the owner had protested before the person cut down the tree, his protest would have been substantiated. After the tree has been cut down, it is considered to be movable property, and we follow the principle that movable property is considered to belong to the person in possession of it.

In contrast to a ganav, “thief,” a gazlan, “robber,” is defined as a person who takes property that does not belong to him by force, in full public view (Hilchot Geneivah 1:3).

As apparent from the Rambam’s explanation, the rationale is as follows: Since landed property is very important, the purchaser will maintain possession of the deed of sale for a significant amount of time. Accordingly, the original owner is given the option of demanding that the deed be produced for a three-year period. Movable property is not considered significant. Hence, it is unlikely that the purchaser would demand to have the transaction formalized through a bill of sale. And for that very reason, we do not require him to produce such a document.

I.e., more than three. See Chapter 11, Halachah 2.

For when a person partakes of the produce of a field for more than three years, he is presumed to be its owner (ibid.).

As required of any defendant who denies the claim lodged against him.

I.e., holding it by the edges, in contrast to Halachah 9, where the two are holding the article itself. See the Rambam’s Commentary on the Mishnah (Bava Metzia 1:1).

And compelling it to proceed forward with his feet. If he was not compelling it to proceed, the person leading the animal acquires it (ibid.:2). See, however, Hilchot Gezelah Va’Avedah 17:7 and notes.

In such a situation, either of them could take possession of the grain as his own. If, however, the grain is placed in the public domain, whoever takes physical possession of it, acquires it. And when it is located in one person’s private domain, that person acquires it.

The wording of the oath is structured in this manner so that each one will be taking the oath concerning the portion of the article he will receive. There is no point in having them mention the larger amount that they claim, because that will not be given to them.

As mentioned in Halachah 10, we are speaking about a division of the article’s value.

For according to Scriptural Law, neither has a strong enough claim to require the other to take an oath.

This rationale follows the same ruling as in the previous halachah. There is no contention with regard to half of the article. The half regarding which there is contention is divided. Hence, one claimant receives three fourths, and the other one fourth.
For that reason, if the article can be divided without diminishing its value, the half that is uncontested is given to the person who claims it even before the oaths are taken (Maggid Mishneh).

The commentaries question why the claim of the person who seeks half the article is not accepted, based on the principle of miggo. Had he desired to lie, he could have claimed the entire article and thus would have been granted the half he claims.
Tosafot (Bava Metzia 2a) explain that since the other claimant is presumed to possess his portion of the article in question, we would be using the principle of miggo to expropriate property, and that is not done. The Hagahot Maimoniot explains that the principle of miggo is applied only to further a claim concerning the article which is itself under consideration. In this instance, one would be using a claim concerning one article (the half that the litigant admits not owning) to further a claim concerning another article (the half he claims).

Since that portion of the garment is in his physical possession, he is considered to be its owner, and an oath is not required concerning it.

I.e., even the portion in his physical possession. The Ra’avad maintains that no portion of the garment should be returned before the oath is taken. For the oath will prevent people from seizing garments belonging to others without cause. The Shulchan Aruch (Choshen Mishpat 138:3) quotes the Rambam’s opinion. Sefer Me’irat Einayim 138:11 and the Siftei Cohen 138:5 speak in favor of the other view.

For neither has a greater claim than the other.

If, however, the object’s value will not be reduced by dividing it, the article itself should be divided among the claimants. [See Shulchan Aruch (Choshen Mishpat 138:4).] If, however, the division will cause its value to be even slightly reduced, it should be sold rather than divided (Sefer Me’irat Einayim 138:12).

If, however, he protests from the outset, his share is returned to him.

Before he departed from the court.

Bava Metzia 7a relates that Rabbi Ze’ira posed this issue. He questions whether the person’s silence should be interpreted as suggested by the Rambam, or that it could be said that the person did not protest because since the article was taken from him in court, he felt it unnecessary to protest. The Talmud does not resolve the issue. The commentaries explain that the Rambam is not providing that rationale as a conclusive statement. Instead, his intent is that this could be the rationale why the person remained silent. Since the object is presently in the hands of the other party, that party may maintain possession.

Our translation reflects the interpretation of the authoritative manuscripts and early printings of the Mishneh Torah and the version followed by the Shulchan Aruch (Choshen Mishpat 138:7). The standard printed text follows a different version, which reads “even though that person did not protest at all.”

According to the version of the text in our translation, the rationale is that although the person protested, the article is not returned entirely to him. He was given ownership only because his possession tipped the balance of doubt in his favor. Now that he no longer has possession, even though he protests, there is no reason why the entire garment should be returned to him. Nevertheless, there is no reason that it should be given entirely to the second person. There was never a supposition that he had a valid claim to sole ownership. Hence, we return the matter to its original status and divide the garment between the two claimants (Maggid Mishneh).
The Ra’avad protests the Rambam’s ruling, maintaining that since the garment was awarded to the person who seized it originally, it is considered his property and may not be seized back from him. The Ramah (loc. cit.) quotes this ruling.

And he has not paid me yet. Bava Metzia 7a uses the expression: “He rented it from me.”

Since the garment is now in that person’s possession, the other litigant is forced to bring witnesses to support his claim. With regard to the claim, “he rented it from me,” Bava Metzia, ibid., explains why the claimant’s word should not be accepted: “According to your claim, he is a robber, for he tried to seize the garment from you by force. Now would it be logical for you to rent such a person the garment without the transaction being observed by witnesses?”
The Ramban and the Rashba do not accept the Rambam’s ruling with regard to the claim that the litigant overcame him and seized possession of the article. This is a highly probable situation, they argue, and the litigant’s rights should be protected. Although the Shulchan Aruch (Choshen Mishpat 138:8) follows the Rambam’s ruling, the Tur and the Ramah follow the other perspective,

A sh’vu’at hesset.