To’en veNit’an - Chapter 8

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.