To’en veNit’an - Chapter 9

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.