Mamon Ha-mutal Be-safek - The Dispute of Simkhus and Chakhamim

  • Rav Yair Kahn



1.  Gemara 2b "Leima matnitin de-lo ke-Sumkhus ... sheli hu" (3a), Tosafot s.v. Heikha.

2.  Bava Kama 35a mishna, gemara till "bari u-bari", 46a mishna, gemara till "alav ha-ra'aya".

3.  Bava Metzia 100a mishna, gemara till "lo amar," Tosafot s.v. Ha mani.

4.  Tosafot Bava Metzia 97b s.v. Leima, Tosafot Bava Kama 35b s.v. Zot. Bava Metzia 6a ""Ta shma bameh devarim amurim … pshita", ibid "v'ee bait eima … lav klum hu".




1.  How could the gemara contemplate that, according to Chakhamim, the ruling in the case of our mishna should be "ha-motzi me-chaveiro alav ha-ra'aya?"

2.  What is the logic of limiting Sumkhus to cases of shema ve-shema?

3.  What would Sumkhus rule where one claimed ownership of an object in the sole possession of another?  Why?



1. Yachloku in the Mishna and the Ruling of Sumkhus


            Our mishna rules that an object held jointly by two parties, each claiming complete ownership, should be divided equally between them.  However, an oath must be taken by each of the parties in support of his claim.  The gemara (2b) questions whether this ruling is consistent with the famous opinion of Sumkhus - "mammon ha-mutal be-safek cholkim" - if a doubt arises between two parties, the money in question should be split equally.  Although the Mishna rules that division is called for, Sumkhus, as opposed to the mishna, does not require an oath to be taken.


            The gemara then asks an additional question: If the author of the mishna is not Sumkhus, then by process of elimination, it must be Chakhamim.  However, the Chakhamim who argue with Sumkhus maintain that "ha-motzi me-chaveiro alav ha-ra'aya" the party that has possession retains possession unless the claimant substantiates his allegation.  Therefore, although Sumkhus denies the secondary requirement of an oath, he at least concurs with the primary ruling that the money should be divided.  The Chakhamim on the other hand argue on the basic ruling itself.  The gemara then counters that the Chakhamim argue only when one of the parties has sole possession.  Our mishna, however, deals with a situation where both parties jointly hold the object.  Therefore, even Chakhamim can agree with the ruling of the mishna.

            From this it appears that Chakhamim agree in principle with Sumkhus that division is the proper solution when in doubt (as in the case of the mishna).  The debate between Chakhamim and Sumkhus relates to their respective attitudes toward possession.  According to Chakhamim, if there is sole possession by one party, the situation is not considered one of doubt, and the claimant must verify his position.  Sumkhus argues that possession alone is not conclusive and the doubt remains.  Accordingly, in cases where one party is not in sole possession, as in our mishna, both Sumkhus and Chakhamim concur that division is called for.

            However, it should be noted that, if the position of Chakhamim regarding the case of our mishna is a moderate version of Sumkhus' rule that mammon ha-mutal be-safek cholkim, how could the Gemara ascribe the ruling of the Mishna to Chakhamim, after claiming that the ruling of dividion with an oath is incompatable with Sumkhus.  Let us therefore re-examine the dispute between Chakhamim and Sumkhus and perhaps we wiil be able to explain why Chakhamim require a shevu'a to be taken.


            Returning to our gemara, the discussion mentioned above is puzzling.  How could the gemara initially contemplate that "ha-motzi me-chaveiro" applies in the case of our mishna where no one actually has sole possession?  If neither of the parties is in possession, the other party cannot possibly be "motzi me-chaveiro" - attempting to remove from another's possession. The Rashba is troubled by this, and explains that the gemara initially defines the case of the mishna where both jointly hold the object, as if each has established possession over half. Therefore, each must verify his claim if he wishes to be granted ownership over the second half.  In the absence of such evidence, neither is believed, and each is left with the half initially in his possession.  This, the gemara, claims, would NOT require an oath, since the situation remains as it was. The gemara concludes, however, that since both are holding on to the object, NEITHER is assumed as owner.  Therefore, when the object is split, and each receives something which previously was not under his possession, an oath is required.  [Compare this the Rashba's comment later (3a s.v. ha de-amar) regarding whether to consider the oath mentioned in our mishna a "nishba ve-notel" or "nishba ve-niftar."]


            In the ensuing section, the gemara quotes conflicting opinions whether Sumkhus applies his ruling only where the parties involved were themselves unsure of what transpired (shema ve-shema), or whether it is even applied when the parties submit definitive and, consequently, contradictory claims (bari u-bari).  If the position of Sumkhus were based on a rejection of the significance of possession, the nature of the claims would be irrelevant.  Whether or not the parties are certain, the object should be divided equally among them since in either case a doubt exists in the eyes of beit din.



2. Does Sumkhus reject the Rule Hamotzi Mechaveiro


            It is ridiculous to assume that Sumkhus totally rejects the significance of possession.  Is it reasonable that he would demand equal division any time one person claims that an object in another's possession is actually his? The gemara (daf 6a) states clearly that such unsubstantiated claims would be rejected even according to Sumkhus. 


            Tosafot (100a s.v. Ha) quote the opinion of R. Shmuel, that Sumkhus basically agree that possession IS significant.  Based on their version of the gemara (100a), they conclude that Sumkhus argues with Chakhamim only when the object in question is not in the possession of either party.  Chakhamim rule that the object remains the property of the original owner.  Sumkhus, on the other hand, maintains that the object should be divided.  In other words, the debate with Sumkhus revolves around the significance of "chezkat mara kama" - the chazaka of the previous owner.  Sumkhus distinguishes between current possession (muchzak) and previous ownership (chezkat mara kama).


            Perhaps we can explain that being muchzak is more significant than standard chazakot which identify certain trends which help resolve doubts if and when they arise.  Being muchzak, on the other hand, is a default legal status of ownership, it considers the possessor as the owner, unless proven otherwise.  Therefore, both Sumkhus and Chakhamim agree that if one person is considered to be the owner based upon possession, an unbased counter claim cannot undermine this assumption.  Hence, the object is not categorized as mammon ha-mutal be-safek, since no substantial doubt has been cast regarding the ownership of the object.  Instead we apply the ruling of ha-motzi me-chaveiro alav ha-ra'aya.  On the other hand, when no one is in possession, and there is no established owner, both Sumkhus and Chakhamim concur that the object should be divided equally since it is a case of mammon ha-mutal be-safek.


            The debate of Sumkhus and Chakhamim revolves around the significance of chezkat mara kama regarding movable objects (Mara kama with repect to real estate will not be discussed here). According to Sumkhus, this chazaka, like others, identifies trends, but does not resolve our doubt.  Therefore, in spite of this chazaka, the object remains in the shadow of doubt - mammon ha-mutal be-safek - and is divided.  However, Chakhamim maintain that in the absence of possession, chezkat mara kama establishes a state of assumed ownership, which is not shaken by an unsupported allegation.  Hence, they rule ha-motzi me-chaveiro alav ha-ra'aya.


            Apparently, Sumkhus and Chakhamim argue regarding the criterion needed to establish a state of assumed ownership.  Sumkhus is more demanding and requires actual possession as a condition which expresses ownership, in order to confer the assumed status of owner.  According to him, chezkat mara kama is awarded no more significance than a standard chazaka de-me'ikara (assumed continuation of previously known status) which merely defines trends.  Chakhamim, on the other hand, argue that based upon chezkat mara kama, we can extend the status of owner from the past to the present, in the absence of actual possession.  (See Kuntras Hasefekot klal 1 siman 7).


            Tosafot continue that Chakhamim and Sumkhus also argue whether to award the status of owner to a muchzak who cannot back up his possession with a concrete claim. According to Chakhamim, since he has possession of the object he is assumed to be the owner, and ha-motzi me-chaveiro applies.  Sumkhus argues because he maintains that the status of owner is conferred only in a situation where the possession indicates ownership.  Technical possession, in the absence of a claim, does not express ownership, and is no more than a standard chazaka which notes the status quo, but does not establish assumed ownership.  Therefore, Sumkhus would define this case as mammon ha-mutal be-safek.


            According to this approach, we can explain the opinion that limits Sumkhus to a case of shema ve-shema, when the parties are themselves unsure.  We questioned this based upon our initial assumption that Sumkhus totally rejects the significance of possession.  According to R. Shmuel in Tosafot, Sumkhus agrees that possession is significant, but only when it expresses ownership.  Therefore, if the muchzak is bari, his possession expresses ownership and ha-motzi me-chaveiro applies.  Only if the muchzak cannot forward a concrete claim (shema), then his possession is only technical, and does not express ownership, and it is a case of mammon ha-mutal be-safek.



3. Derara De-mammona


            However, it is clear that not all Rishonim accept this approach.  Tosafot in Bava Kama (35b s.v. Zot) question how Sumkhus could possibly consider that a mere claim is effective against possession. According to the approach developed above, there is no room for this question, since Sumkhus agrees to the clause ha-motzi me-chaveiro alav ha-ra'aya. Apparently, Tosafot in Bava Kama maintain that Sumkhus opts for division even where one side is in complete possession. 


            Tosafot in Bava Kama answer that Sumkhus' ruling is limited to cases where there is an objective basis for doubt (derara de-mammona).  However, if no such basis exists, and one would claim possession of an object in another's possession, even Sumkhus would not be receptive to his claim.  On the other hand, in a case of derara de-mammona, Sumkhus would rule division even against a bona fide muchzak.  Let us try to understand what is accomplished by de-rara de-mammona.


            Perhaps we can clarify this issue by introducing an additional Tosafot.  In Bava Metzia 97b, Tosafot (s.v. Leima) claim that according to Sumkhus we view both litigants as being in joint possession.  This position is counterintuitive.  We would certainly have preferred claiming that according to Sumkhus neither party is in possession.  Why should we grant the status of muchzak to the empty-handed claimant?


            Apparently, there is a distinction between two types of doubts.  When there is no objective basis for questioning the identity of the owner, the legal problem in its entirety is a function of contradictory claims, one of which is clearly dishonest.  The court may be unsure which party to trust, but their doubt can be classified as "either-or" - who is telling the truth and who his lying.  There is legitimacy to only one possibility, the question is - WHICH.


            In contrast, derara de-mammona describes a case in which the situation itself generates doubt.  Take for instance the mishna in Bava Kama (46a): "An ox gored a cow and a newborn calf was found lying dead alongside the cow, it is unknown whether the cow gave birth after or prior to being attacked."  A cloud of uncertainty hovers over the entire case.  The situation lends itself to two conceivable scenarios.  Perhaps in such cases, we don't view the doubt negatively - not knowing which possibility to choose - but positively, granting legitimacy to both options.  We are not faced with an "either-or" dilemma, but with two equally viable (though mutually exclusive from a practical perspective) options. 


            According to this approach, derara de-mammona acts as a positive force granting power to both options.  It defines the case as mammon ha-mutal be-safek - an object thrust into an objective cloud of uncertainty.  Therefore, it is feasible to consider both parties as being muchzak due to the derara de-mammona.  Hence, the litigants can divide equally, even though only one has actual possession.


            Based upon this approach, we can explain the problem of applying Sumkhus to a case of bari u-bari.  In this case, in addition to the situation which is open equally to both scenarios, we are also faced with contradictory claims.  Are we to ignore the claims and grant both possibilities legitimacy based on the objective nature of the uncertainty?  Or perhaps the contradictory allegations, on of which is clearly false, outweigh the objective doubt and force us to reject one of the two clashing claims?


            If we maintain our second approach, Sumkhus is working with a totally different concept than that of Chakhamim.  Chakhamim arbitrate cases of doubt based on possession.  Where one party is in total possession, the object will not be removed.  Where both or neither are muchzak, then some type of compromise (division, kol de-alim gevar, yehei munach) is applied.  Therefore, the gemara explains that our mishna, which requires an oath to allow the court to split the object, is consistent with Chakhamim.  However, Sumkhus views division not as a compromise, but as a natural outgrowth of the state of derara de-mammona.  Hence the demand of an oath to enable division is out of place.


            Using this approach, we can also explain the difficulty in the sugya that we noted at the beginning of the shiur.  How could the gemara have contemplated that ha-motzi me-chaveiro is applicable to our mishna?  Isn't it obvious that when both are holding on to an object, there is no one party who is muchzak?  However, if we interpret Chakhamim as totally rejecting the concept of mammon ha-mutal be-safek, this rejection applies even when there is no muchzak.  Chakhamim reject division as an outgrowth of a state of objective safek, therefore there may be no basis for division in the case of our mishna.  The gemara concludes that since neither party is muchzak, division is possible on grounds other than mammon ha-mutal be-safek.  Dividing the object in question may be accepted by Chakhamim as a compromise since neither side is muchzak.




            We developed two approaches regarding the ruling of Sumkhus that mammon ha-mutal be-safek cholkim.  According to the first, both Sumkhus and Chakhamim agree that mammon ha-mutal be-safek doesn't apply when one of the parties is defined as muchzak, since the rule of ha-motzi me-chaveiro alav ha-ra'aya grants default the status of ownership to the possessor and the object is not in mutal be-safek.  The debate between Sumkhus and Chakhamim revolves around situations when the status of muchzak may or may not be applied.


            According to the second approach, Sumkhus' halakha applies to a unique category classified as mammon ha-mutal be-safek.  This category is limited to situations where there is an objective state of safek which grants legitimacy to both options.  According to Sumkhus this category overrides muchzak by granting equal status to both litigants.  Chakhamim, for their part, reject the entire category, and therefore apply ha-motzi me-chaveiro universally.



Sources for the next shiur:


1. Bava Metzia 2b "leima matnitin de-lo ke-ben Nanas … agbihuha," 3a "bein le-rabbanan … mi-ba'al ha-bayit."

2. Shevu'ot 45a "ve-hachenvani al pinkaso keitzad … shelo be-shevu'a."

3. Ritva Shevu'ot 47a s.v. amar ben Nanas, Bava Metzia 2b s.v. de-i ke-ben Nanas.

4. Ba'al Hamaor Shevu'ot [33a in the Rif] "ve-hareini moser lekha … litol belo shevu'a," Ramban ibid. till "shechenvani chashud eino notal."

5. Rambam Hilkhot Milave ve-loveh 16:5.

6. Rambam Hilkhot Shevu'ot 1:4-7.

7. Sefer Ha-mitzvot Aseh 7 and the Ramban's commentary.




1. What is the distinction between a shevu'at shav and shevu'at sheker?

2. In the case of "chenvani al pinkaso, if both the storeowner and workers were to swear, would the problem be one of shevu'at sheker or shevu'at shav?

3. Why does the Ramban reject the position taken by the Ba'al Hamaor?

4. How can the opinion of the Ba'al Hamaor be defended?