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Bava Metzia, 116

1) THE FIELD-OWNER WHO SEIZED THE GOATS

QUESTION: The Gemara relates an incident in which a person's goats entered the field of someone else and ate a large amount of barley. The Gemara states that if the field-owner has seized the goats, he is believed to claim payment from the goats' owner for a large amount of barley because of a "Migu" that he could have claimed that he owns the goats themselves.

Why is the field-owner believed with this "Migu?" The field-owner wants to extract money from the owner of the goats by using this "Migu." Hence, this "Migu" is a "Migu l'Hotzi." Many Rishonim rule that a "Migu l'Hotzi" -- a "Migu" used to extract money from someone (in contrast to a "Migu" used to retain money already in one's possession) -- is not a functional "Migu." Why, then, may the field-owner collect compensation based on this "Migu?" (RABEINU YONAH in Bava Basra 33a)

ANSWER: RABEINU YONAH answers that since the field-owner is entitled to seize the goats as collateral, the compensation for the damages is deemed a debt on which the lender (the field-owner who is the Nizak) has collateral. By virtue of his holding collateral, the Nizak is not considered to be extracting money from someone else, but rather he is considered "Muchzak" and is merely trying to retain what he is holding (the value of the damages).

RAV SHMUEL ROZOVSKY zt'l raises an objection to Rabeinu Yonah's answer from our Gemara. Our Gemara compares the case of a lender who seized a butcher's knife as collateral to the case of the goats that damaged someone's field. In the case of the goats, the field-owner is entitled to seize the goats, thereby rendering the case as a debt with legal collateral. In the case of the butcher's knife, the lender was not allowed to take such collateral in the first place (for the knife is in the category of "Kelim she'Osim ba'Hem Ochel Nefesh"). Since it is not deemed a legal collateral, the lender is once again considered to be "Motzi" and not "Muchzak," and thus he should not be entitled to collect based on a "Migu" (it should be considered a "Migu l'Hotzi"). Hence, Rabeinu Yonah's answer does not suffice for that case. (Y. Marcus)

116b

QUESTION: The Mishnah teaches that when one person owns the lower story of a house and another person owns the upper story and the house collapses, the two owners divide the wood and stones between them. When one claims that he recognizes which stones are his, the Mishnah says that he may take them (and let the other owner take an equal amount of the other stones). The Gemara explains that this applies only when the other owner admits to part of the claim, and says that he does not know with regard to the rest of the claim (in which case he must make a Shevu'ah of "Modeh b'Miktzas," but since he cannot swear (because he says that he does not about the rest), he must pay). In a simple case, in which one owner claims certain stones to be his and the other owner says that he does not know (and he does not admit to any of the claim), the owner who claims to recognize his stones may *not* take them. This is because of the principle of "Bari v'Shema, Lav Bari Adif" -- in a case where one litigant has a claim of certainty ("Bari") and the other has an uncertain claim ("Shema"), the one with the claim of certainty does not prevail.

TOSFOS (DH Leima) asks that in the case of the Gemara, the principle of "Bari v'Shema, Lav Bari Adif" should not apply, and the one who is certain should prevail. The only reason why, normally, the litigant with the "Bari" claim does not prevail is because his opponent is holding the object or money in question and is "Muchzak." In the case of our Gemara, though, neither litigant is "Muchzak," because the stones are resting in a public domain and not in the domain of either of them.

ANSWER: TOSFOS answers that in any case of a dispute concerning who owns the money or object, when the doubt of ownership involves an intrinsic doubt about who owns it (such as in our case), it is considered to be held by both litigants. Hence, the one who is claiming with certainty that he recognizes his stones is considered to be "Motzi" from someone who is "Muchzak," and thus the normal principle of "Bari v'Shema, Lav Bari Adif" applies.

The SHA'AR HA'MISHPAT (138:3) points out that the RAMBAN in Bava Basra (34b) disagrees. The Ramban states that in any case in which no one is clearly the "Muchzak," such as in the case of two disputants holding a Talis (Bava Metzia 2a), a claim of "Bari" will prevail in court against a claim of "Shema." This opinions, says the Sha'ar ha'Mishpat, argues with the view of Tosfos on our Gemara, who says that one *is* considered "Muchzak" (and a "Bari" claim will *not* work to extract the object from him) even when he is not actually, physically holding the object. (For a possible reconciliation of Tosfos and the Ramban, see KOVETZ SHI'URIM.) (Y. Marcus)