Rambam - 1 Chapter a Day - Daily Torah Study

1We do not presume that an animal or a beast that is not kept in an enclosed place,1 but instead roams freely and pastures everywhere, belongs to the person who seizes it if the animal is known2 to have a prior owner.אבְּהֵמָה אוֹ חַיָּה שֶׁאֵינָהּ שְׁמוּרָה אֶלָא מְהַלֶּכֶת בְּכָל מָקוֹם וְרוֹעָה - אֵינָהּ בְּחֶזְקַת זֶה שֶׁתְּפָסָהּ, מֵאַחַר שֶׁהִיא יְדוּעָה לַבְּעָלִים.

What is implied? When a plaintiff brings witnesses who testify that a certain animal is known to belong to him, and the person maintaining possession of the animal claims: “You gave it to me” or “You sold it to me,” the defendant’s word is not accepted. The fact that the animal is in his possession is not considered proof of ownership, because it is possible that it roamed and entered his domain by itself. Therefore, if the defendant does not bring proof of his acquisition of the animal, it should be returned to its owner. The owner must, however, reinforce his claim3 by taking an oath.4כֵּיצַד? הֵבִיא הַתּוֹבֵעַ עֵדִים שֶׁהַבְּהֵמָה הַזֹּאת יְדוּעָה לוֹ, וְזֶה הַתּוֹפֵס טוֹעֵן 'אַתָּה נְתַתָּהּ לִי', 'אַתָּה מְכַרְתָּהּ לִי' - אֵינוֹ נֶאֱמָן; שֶׁאֵין הֱיוֹתָהּ תַּחַת יָדוֹ רְאָיָה - שֶׁהֲרֵי הִיא הָלְכָה מֵעַצְמָהּ, וְנִכְנְסָה בִּרְשׁוּתוֹ. לְפִיכָךְ אִם לֹא הֵבִיא רְאָיָה - תַּחֲזֹר הַבְּהֵמָה לִבְעָלֶיהָ, וְיִשָּׁבַע הֶסֵּת עַל טַעֲנַת זֶה.

2If it was usual for an animal to be kept in an enclosed place or entrusted to a shepherd,5 we assume that it belongs to the person in whose possession it is found. This applies even if the plaintiff brings witnesses who testify that it belonged to him. Thus, if the person who holds the animal in his possession claims: “You sold it to me” or “You gave it to me,” he is required to take a sh’vu’at hesset that it belongs to him, and then he is released of all obligations.בהָיְתָה הַבְּהֵמָה שְׁמוּרָה אוֹ מְסוּרָה לְרוֹעֶה - אַף עַל פִּי שֶׁהֵבִיא זֶה עֵדִים שֶׁהִיא שֶׁלּוֹ, הֲרֵי הִיא בְּחֶזְקַת זֶה שֶׁהִיא תַּחַת יָדוֹ. וְאִם טָעַן 'אַתָּה מְכַרְתָּהּ לִי', אוֹ 'נְתַתָּהּ לִי' - יִשָּׁבַע הַתּוֹפֵס הֶסֵּת שֶׁהִיא שֶׁלּוֹ, וְיִפָּטֵר.

3Therefore, the following rules are applied when a person seizes possession of an animal belonging to a colleague that had been kept in an enclosed place or entrusted to a shepherd. If the owner claims: “The animal went out and came to you on its own initiative,” “It was entrusted to you for safekeeping,” or “It was lent to you,” and the person who seized it agrees, saying: “It is not mine, but you owe me this-and-this much,” “You gave it to me as security for this-and-this much,” or “You owe me such-and-such for damages that you caused my property,” his word is accepted if he claims the value of the animal or less. The rationale is that since he could claim that he purchased it,6 his word is accepted if he lodges another plausible claim. He must, however, take an oath holding a sacred article.7 Then he may collect his claim.גלְפִיכָךְ מִי שֶׁתָּפַס בֶּהֱמַת חֲבֵרוֹ שֶׁהָיְתָה שְׁמוּרָה אֶצְלוֹ, אוֹ בְּיַד רוֹעֶה, וְהַבְּעָלִים טוֹעֲנִין 'הִיא יָצָאת מֵעַצְמָהּ וּבָאָה אֶצְלְךָ', אוֹ 'פִּקָּדוֹן הִיא בְּיָדְךָ', אוֹ 'שְׁאוּלָה הִיא לְךָ', וְהַתּוֹפֵס אוֹמֵר 'כֵּן הוּא, אֵינָהּ שֶׁלִּי, אֲבָל אַתָּה חַיָּב לִי כָּךְ וְכָּךְ עָלֶיהָ', אוֹ 'אַתָּה מִשְׁכַּנְתָּהּ בְּיָדִי עַל כָּךְ וְכָּךְ', אוֹ 'הִזִּיקָה אוֹתִי נֶזֶק שֶׁאַתָּה חַיָּב לְשַׁלֵּם עַל יָדֶיהָ כָּךְ וְכָּךְ' - יָכוֹל לִטְעֹן עַד כְּדֵי דָּמֶיהָ, מִתּוֹךְ שֶׁיָּכוֹל לוֹמַר 'לְקוּחָה הִיא בְּיָדִי'. וְיִשָּׁבַע בִּנְקִיטַת חֵפֶץ וְיִטֹּל.

4Similar laws apply with regard to servants. Since they can walk independently, the fact that they are in the physical possession of a person is not presumed to be a sign of ownership. Instead, if the plaintiff brings witnesses who testify that it is known that this servant belonged to the plaintiff, the defendant’s word is not accepted if he claims: “You sold him to me” or “You gave him to me as a present.” Instead, the servant should be returned to its owner. He must, however, take an oath8 that he did not sell the servant or give him away as a present.דוְכֵן הָעֲבָדִים שֶׁיְכוֹלִין לְהַלֵּךְ, אֵינָן בְּחֶזְקַת זֶה שֶׁהֵן תַּחַת יָדוֹ, אֶלָא כֵּיוָן שֶׁהֵבִיא הַטּוֹעֵן עֵדִים שֶׁזֶּה יָדוּעַ שֶׁהוּא עַבְדּוֹ, וְהַלָּה טוֹעֵן 'אַתָּה מְכַרְתּוֹ לִי', אוֹ 'אַתָּה נְתַתּוֹ לִי בְּמַתָּנָה' - אֵינוֹ נֶאֱמָן, וְיַחְזֹר הָעֶבֶד לִבְעָלָיו, וְיִשָּׁבַע הַטּוֹעֵן שֶׁלֹּא מָכַר וְלֹא נָתַן.

Different rules apply if the defendant who was asserted to have seized possession of the servant brought witnesses who testified that the servant was in his possession, day after day, for three consecutive years,9 and that the defendant would have him serve him as servants serve their masters.10 Since the original owner did not raise objections throughout all these years, the defendant’s word is accepted. We allow him to maintain possession after he takes a sh’vu’at hesset that he purchased the servant from the original owner or the owner gave the servant to him as a present.11הֵבִיא זֶה הַנִּטְעָן שֶׁתָּפַס הָעֶבֶד עֵדִים שֶׁיֵּשׁ לְזֶה הָעֶבֶד אֶצְלוֹ שָׁלוֹשׁ שָׁנִים רְצוּפוֹת מִיּוֹם לְיוֹם, וְהוּא מִשְׁתַּמֵּשׁ בּוֹ כְּדֶרֶךְ שֶׁהָעֲבָדִים מְשַׁמְּשִׁין אֶת רַבָּן, הוֹאִיל וְלֹא מִחָה בּוֹ בְּכָל אֵלוֹ הַשָּׁנִים - הֲרֵי זֶה נֶאֱמָן, וּמַעֲמִידִין אוֹתוֹ בְּיָדוֹ אַחֵר שֶׁיִּשָּׁבַע הֶסֵּת שֶׁלְּקָחוֹ מִמֶּנּוּ אוֹ שֶׁנְּתָנוֹ לוֹ בְּמַתָּנָה.

These rules do not apply to a servant who is a young child and cannot walk on his legs because of his youth. He is considered as other types of movable property. We presume that he is owned by the person in whose domain he is located,12 and we follow the principle: When a person seeks to expropriate property from a colleague, the burden of proof is upon him.אֲבָל עֶבֶד קָטָן שֶׁאֵינוֹ יָכוֹל לְהַלֵּךְ עַל רַגְלָיו מִפְּנֵי קַטְנוּתוֹ, הֲרֵי הוּא כִּשְׁאָר הַמִּטַּלְטְלִין, וְכָל מִי שֶׁיִּהְיֶה בִּרְשׁוּתוֹ הֲרֵי הוּא בְּחֶזְקָתוֹ, וְהַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה.

5As we explained,13 a plaintiff can alter his statements and offer another claim if it is plausible. To apply that concept to the issues at hand: A person issued a claim against a colleague, stating: “This garment...”, “This animal...”, or “This servant that is in your possession belongs to me. It was lent to you,” “... it is stolen,” “... I entrusted it to you,” or “... I rented it to you.” The defendant claimed, “No. It is my money. I inherited it.” The plaintiff then brought witnesses who testified that they know that this article, servant, or animal is known to belong to the plaintiff. The defendant then countered and replied: “Yes. It was yours, but you gave it to me...” or “... you sold it to me. I said: ‘I inherited it,’ not because I inherited it from my father, but that my ownership is so strong that it is as if I inherited it.” The defendant’s claim is accepted provided that he supports it by taking a sh’vu’at hesset.ההַטּוֹעֵן אֶת חֲבֵרוֹ וְאָמַר לוֹ 'בֶּגֶד זֶה' אוֹ 'בְּהֵמָה זוֹ' אוֹ 'עֶבֶד זֶה שֶׁבְּיָדְךָ שֶׁלִּי הוּא, וּגְזַלְתּוֹ מִמֶּנִּי', אוֹ 'הִפְקַדְתִּיו אֶצְלְךָ', אוֹ 'שָׂכוּר הוּא לְךָ', אוֹ 'שָׁאוּל הוּא', וְהַנִּטְעָן אוֹמֵר 'לֹא כִי, אֶלָא זֶה מְמוֹנִי וִירֻשָּׁתִי', וְהֵבִיא הַטּוֹעֵן עֵדִים וְהֵעִידוּ שֶׁהֵן יוֹדְעִין שֶׁזֶּה הַחֵפֶץ אוֹ הָעֶבֶד אוֹ הַבְּהֵמָה יָדוּעַ שֶׁהוּא הָיָה לְזֶה - חָזַר הַנִּטְעָן וְאָמַר 'כֵּן הָיָה שֶׁלְּךָ, אֲבָל אַתָּה נְתַתּוֹ לִי' אוֹ 'מְכַרְתּוֹ לִי, וְזֶה שֶׁאָמַרְתִּי יְרֻשָּׁתִי, לֹא שֶׁיְּרַשְׁתִּיו מֵאֲבוֹתַי אֶלָא שֶׁהוּא שֶׁלִּי כְּאִלּוּ יְרַשְׁתִּיו' - הֲרֵי זֶה נֶאֱמָן, וְנִשְׁבָּע הֶסֵּת. שֶׁכְּבָר בֵּאַרְנוּ שֶׁיֵּשׁ לַטּוֹעֵן לַחֲזֹר וְלִטְעֹן דָּבָר הַנִּשְׁמָע.

6The following laws apply when two people are contending14 with regard to a boat or the like, each claiming: “It belongs entirely to me.”15 If they come to the court and one16 asks the court: “Take possession of it until I bring witnesses to support my claim,” the court should not take possession of it.17וסְפִינָה וְכַיּוֹצֵא בָּהּ שֶׁהָיוּ שְׁנַיִם נֶחְלָקִין עָלֶיהָ - זֶה אוֹמֵר 'כֻּלָּהּ שֶׁלִּי' וְזֶה אוֹמֵר 'כֻּלָּהּ שֶׁלִּי', וּבָאוּ לְבֵית דִּין, וְאָמַר הָאֶחָד 'תִּפְסוּהָ עַד שֶׁאָבִיא עֵדִים' - אֵין תּוֹפְסִין.

If the court took possession of it,18 that person went and did not find witnesses, and returned and asked:19 “Leave it for us as before, and whoever will overcome the other will acquire it, as was the law before,” it does not heed the request.20 Instead, the court does not release it from its possession until a claimant brings witnesses who support his claim, one acknowledges the truth of the other’s claim, or they willingly agree to divide it after taking an oath, as we have explained.21וְאִם תְּפָסוּהָ בֵּית דִּין, וְהָלַךְ וְלֹא מָצָא עֵדִים, וְאָמַר 'הַנִּיחוּהָ בֵּינֵינוּ, וְכָל הַמִּתְגַּבֵּר יִטֹּל כְּשֶׁהָיָה דִּינָהּ מִקֹּדֶם' - אֵין שׁוֹמְעִין לָהֶן, וְאֵין מוֹצִיאִין אוֹתָהּ בֵּית דִּין מִתַּחַת יָדָן עַד שֶׁיָּבוֹאוּ עֵדִים אוֹ עַד שֶׁיּוֹדוּ זֶה לְזֶה אוֹ יַחְלְקוּ בִּרְצוֹנָם וּבִשְׁבוּעָה כְּמוֹ שֶׁבֵּאַרְנוּ.

Footnotes

I.e., in contrast to movable property, where physical possession creates a presumption of ownership, no such presumption is established because of the possession of livestock.

I.e., witnesses must testify to this fact [Shulchan Aruch (Choshen Mishpat 135:1)].

I.e., if the defendant continues to press his claim after returning the animal, the owner must take this oath. The owner is not, however, required to take an oath before the animal is returned (Siftei Cohen 135:1).

I.e., a sh’vu’at hessel [Shulchan Aruch (loc. cit.)].

Who does not let it roam freely.

As stated in the previous halachah.

Since the person in possession of the animal is not claiming that the animal itself belongs to him, but that he is holding it in lieu of other money, he must take a severe oath. See Hilchot Malveh V’Loveh 13:3 (Maggid Mishneh).

A sh’vu’at hesset. A Scriptural oath is never taken with regard to servants. A sh’vu’at hesset may, however, be taken as stated in Chapter 5.

The amount of time necessary to establish a claim of ownership over landed property, as stated in Chapter 11, Halachah 2.

10.

The Maggid Mishneh notes that the Rambam does not mention possession for three years (the time span that applies with regard to landed property) with regard to claims over an animal. Hence, he concludes that the Rambam does not make such a distinction, and considers the original owner as always having a claim over an animal, despite the fact that it has been in the possession of others for many years. The Tur and the Ramah (Choshen Mishpat 135:1) differ and maintain that the three-year limit applies with regard to an animal as well.
The Siftei Cohen 135:3 explains that there is no difference of opinion concerning the matter, and that even the Rambam would accept the opinion quoted by the Tur. This approach is borne out by the fact that in his Commentary on the Mishnah (Bava Batra 3:1, the source for this halachah), the Rambam speaks about the same principles applying to servants and animals, without differentiating between them.

11.

If the defendant, however, claims that the servant strayed into his property and so he took possession of him, he must return him to his owner.

12.

Bava Batra 36a states that this law applies even when the child is a baby. We do not say that it is possible that the child’s mother brought him to the second person’s house, and accidentally left him there.

13.

Chapter 7, Halachah 8.

14.

And neither has established control over it.

15.

As stated in Chapter 15, Halachah 4, and mentioned in the continuation of this halachah, since neither claimant has more legal right than the other, the ruling is that the one who can overpower the other - in sheer physical strength - is given control over the article.

16.

If, however, both claimants make this request of the court, the court should comply (Kessef Mishneh, in the name of Rabbenu Nissim).

17.

We suspect that he is trying to perpetrate deceit - i.e., he has no witnesses that the ship belongs to him, but is afraid that the other claimant will overpower him. Hence, he seeks to have the article placed in the hands of the court. Thus, if the other claimant also does not have proof of ownership, he will have to negotiate a compromise with him (Sefer Me'irat Einayim 139:7).
If he did bring witnesses to support his claim, he could expropriate the ship from the other claimant even after the latter took possession. Nevertheless, there are times when it is difficult to bring a person to court. To prevent that difficulty from arising, the claimant desired to have the court take possession of the ship.

18.

Either correctly, when requested to do so by both claimants, or in error, when only one made such a request (Kessef Mishneh, in the name of Rabbenu Nissim).

19.

This law applies even if both claimants make this request (ibid.).

20.

For once the property is in the possession of the court, it does not release it untiL the case is settled in a conclusive manner.

21.

Chapter 7, Halachah 9. Although that law speaks about an instance in which both litigants had possession of a portion of the article, the same rationale applies. The oath is instituted so that one person will not try to seize possession of a colleague’s property unlawfully. The oath is required only when a division is being made, and not for the first two instances mentioned by the Rambam.

Rambam - 1 Chapter a Day

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