The first Mishnah of Masechet Bava Metzia presents a case concerning two people who enter Beit Din holding onto a tallit, each claiming sole ownership. The Halacha requires that they must each make an oath regarding the ownership before receiving half the tallit (i.e. the tallit is sold and the money is divided).
Tosfot (2a) discuss the different methods used by Beit Din when resolving ownership disputes. When one party is in possession of the disputed article and the other party seeks to reclaim the article, Halacha follows the Chachamim whereby the burden of proof, in the form of witness testimonies, is placed on the party seeking to reclaim the article. Halacha presumes that the party in possession of the article as the owner of the article. This may be the origin of the legal maxim “possession is nine-tenths of the law”.
When neither party has physical possession of the disputed article, the Halacha mandates that whoever first obtains possession of the article can claim the article as theirs, and the other party must provide proof of ownership. Since ownership was not determined and there is no presumption of ownership for either party, in the event that the article is stolen by the other party, the roles are reversed and the party that had possession must now provide witnesses to prove their right of absolute ownership. The Rosh adds that since neither party has a presumption of ownership, Beit Din does not intervene to determine proprietorship and is not in a position to question the party that is in possession of the article.
When both parties have possession of the disputed article, and as a result, each has a presumption of ownership, two situations are possible. Since both parties approach the Beit Din with possession of the article, Beit Din has a duty to intervene to determine proprietorship and prevent one party from stealing the article from the other (Rosh).
The first scenario is where it is impossible that both parties can have concurrent ownership of the article. Tosfot explain that this case is where two parties entrusted a third party different sums of money and each claim to have deposited the larger sum. The differential between the two amounts is deemed to be the article of dispute and the third party is considered to be holding the money for both parties, thereby establishing a presumption of ownership for both parties. The money cannot be divided between the parties since it belongs to one of the parties, and one party will have received half the money unlawfully. Rather, the money is retained in the possession of the third party ‘until Mashiach arrives’; the money is withheld indefinitely until evidence is presented to resolve the dispute.
The second scenario is where it is possible that both parties may have shared ownership. Since both parties have an equal presumption of ownership and it is possible to establish that both may have acquired the article at the same time, the article is divided equally between the parties.
Tosfot maintain that the case of our Mishnah falls into this latter category. They explain that each party may have raised the abandoned tallit at the same time to claim ownership unaware of the presence of the other. While this may be an unlikely scenario, it is enough to satisfy that neither party is necessarily lying.
One question remains. The Gemara on 5b asks why the Mishnah imposes an oath on each of the parties if the Halacha requires merely to divide the article of dispute. R’ Yochanan answers that the oath is a rabbinically enforced deterrent to prevent people from simply grabbing onto an article in someone else’s possession and approaching Beit Din claiming ownership.
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