The Position of Sumchus: Mammon Ha-Mutal Be-Safek Cholkim

  • Rav Moshe Taragin
Sumchus was a talmid of R. Meir and, like his rebbi, was known for his ability to think counterintuitively. He could demonstrate that an item was impure and then reverse his analysis and prove that it was also tahor or pure. Consistent with this ability, he adopted two famous halakhic positions that were discrepant with conventional rulings. His most well-known disagreement surrounded disputed monies about which no evidence was produced.
The halakhic-monetary system is generally predicated upon the assumption that the possessor retains ownership. This doctrine, known as ha-motzi mei-chaveiro alav ha-ra’aya, is one of the more basic principles of the halakhic judiciary system and is adopted almost universally. Strikingly, Sumchus challenged this doctrine and ruled that disputed monies are divided equally between the two litigants: mammon ha-mutal be-safek cholkim. In this shiur, we will explore his position and whether he entirely denies the general convention of ha-motzi mei-chaveiro or merely qualifies its application, allowing for yachaloku under very specific conditions that preclude application of ha-motzi mei-chaveiro. Since Sumchus’ position is a minority opinion, very few Rishonim adopt his approach, and there is limited discussion about his enigmatic shita. This renders the analysis of his position somewhat speculative.
The simple and obvious approach would suggest that Sumchus outright rejects the doctrine of ha-motzi mei-chaveiro and instead chooses yachaloku - equitable division of disputed monies.
However, certain statements of the Rishonim suggest that he may adopt a different strategy. Perhaps he agrees that the doctrine of ha-motzi mei-chaveiro exists, but he defines this doctrine in a manner that leads to its suspension in several situations. For example, Tosafot (Bava Metzia 2b) maintain that Sumchus only imposes yachaloku distribution in a situation of an objective safek, an absolute dispute that emerges independent of the respective claims of the litigants. For example, Sumchus would apply yachaloku if a pregnant animal were gored and a dispute emerges as to the time of birth of her stillborn offspring (Bava Kama 46a). If the offspring was born before the goring, its death cannot be pinned upon the owner of the attacking animal, but if the offspring was still in utero during the goring, the owner of the attacker is accountable for the death of the baby. This situation demands legal intervention even independent of the two claimants; beit din must investigate to determine the time of birth. In this instance, Sumchus suspends the chezkat mammon and chooses a yachaloku division. However, in a standard legal safek, which is merely a product of legal prosecution (such as the scenario the beginning of Bava Metzia (2a) in which two people mutually lodge claims to a garment), Sumchus agrees to the doctrine of ha-motzi mei-chaveiro.
Perhaps this limitation stems from Sumchus’ scaled-down definition of chezkat mammon. Conventionally, it is assumed that possession establishes a basic proof of ownership. Halakha assumes that a possessor either legally acquired or personally manufactured an item; we do not assume average people to be thieves. In the absence of proof to the contrary, this very basic evidence awards the item to the possessor. If this is indeed the definition of chezkat mammon, it should apply independent of what type of safek emerges. Indeed, the Rabbanan, who disagreed with Sumchus and apply chezkat mammon almost universally, may have defined it as basic evidence, a beirur. It is possible that Sumchus agrees with the general doctrine of chezkat mammon, but defines it as a “legal procedure,” as opposed to a beirur. We have no indication that the item truly belongs to the muchzak; nevertheless, Halakha retains the status quo in the absence of any counter-proof. A status quo of possession can be preserved when litigants introduce a litigation with their differing claims. In the absence of other proof, beit din will allow the possession to remain intact. However, if an objective safek presents itself, beit din no longer has the luxury to withdraw from the investigation and cannot default to the current status quo. In this instance, beit din must intervene and supervise a yachaloku distribution.
The Rabbanan, who all argued with Sumchus, adopted a broader definition of chezkat mammon that allows it to be applied in a broad range of litigations. By contrast, Sumchus envisioned a streamlined version, limiting its application to subjective safeikot. Since chezkat mammon is not a forensic proof but merely an option to retain the status quo, it cannot be applied in all scenarios. If a safek is an absolute and objective predicament, beit din loses the option of defaulting the case to the current possessor and distributes the disputed monies to the litigants.
Tosafot in Bekhorot (25b) record a related qualification of Sumchus’s yachaloku doctrine. Although Sumchus adopts yachaloku in every empirical safek (safek in metziyut), he does not apply it to legal sefeikot (safeika de-dina). In the latter instances – in which the uncertainty about the money surrounds a halakhic debate – Sumchus agrees that the muchzak triumphs. It seems that Tosafot in Bekhorot is adopting similar logic to the aforementioned analysis. Empirical sefeikot demand legal intervention and do not allow retreat to the status quo, and therefore do not enable awarding the current possessor. In all cases of empirical sefeikot (even those that are only subjective), defaulting to the current state of possession is untenable. Only disputes that emerge from legal unknowns (such as halakhic uncertainties) allow beit din the luxury of retaining the status quo and supporting the muchzak.
A final application of this logic may surround the position of Rava (Bava Metzia 100a), who limits Sumchus with a different parameter: Sumchus only instructs yachaloku if the two parties do not lodge firm legal claims, known as ta’anat bari. In these situations, beit din can apply chezkat mammon. Sumchus denies the applicability of chezkat mammon in instances of shema ve-shema, in which the lodged claims are speculative because the two parties do not accurately remember the events. However, if the parties lodge definite claims of bari Sumchus agrees that the possessor or the muchzak triumphs. Perhaps the logic dictating yachaloku as opposed to the application of chezkat mammon is similar to the aforementioned argument. Sumchus adopted chezkat mammon, but only as a status quo and not as a proof of ownership. This streamlined version of chezkat mammon cannot apply without firm legal claims. Possession is not merely a product of a physical hold upon an item; that physical hold must be defended legally with firm and accurate claims. In the absence of such claims, the physical possession alone is insufficient to mandate awarding the muchzak and maintaining the status quo. Had Sumchus viewed chezkat mammon as a beirur or proof he would have applied it more broadly even to situations of ‘shema’ claims
To summarize, there are two different possible qualifications of Sumchus’s position. According to Tosafot, in Bava Metzia the gemara in Bava Metzia limits Sumchus to situations of objective and absolute sefeikot. In contrast, Rava limits Sumchus’ policy to situations of uncertain claims. Perhaps, however, each qualification is based on similar logic. Since Sumchus defined chezkat mammon as solely a default to a status quo, he could not apply it under conditions in which the status quo was not actionable. In those cases alone, Sumchus selected the alternate option of yachaloku. According to Tosafot, if the safek is objective, beit din does not enjoy the option of relying on chezkat mammon. According to Rava, if the claims are merely speculative, possession loses its power and beit din cannot rely on it.
A different strategy toward understanding Sumchus may emerge from a Tosafot in Bava Metzia (97b). Tosafot claim that Sumchus views the two disputants as mutually holding an item; thus, yachaloku is a natural result of applying chezkat mammon respectively for each party. According to this approach, Sumchus fundamentally agrees to the doctrine of ha-motzi mei-chaveiro alav ha-ra’aya. However, the status of muchzak is not immediately and automatically bestowed upon the actual possessor. In litigational contexts, each disputant is considered “in virtual possession” of half of the disputed monies, and, as a legal muchzak, each benefits from the application of the principle of ha-motzi mei-chaveiro. In this view, Sumchus does not streamline chezkat mammon in a manner that limits its application. Instead, he remaps the definition of possession such that it yields a verdict of yachaloku, which is itself a derivative of ha-motzi mei-chaveiro applied to two disputants.
It seems logical to limit the application of this theory and, by extension, the application of yachaloku. Perhaps the two litigants are considered legal possessors in very specific scenarios in which Sumchus may readily apply yachaloku in light of their mutual “virtual” possession. One option emerges from the Ramban’s position. In his comments to Bava Metzia (2b) he claims that Sumchus only prefers yachaloku if each litigant has “just cause” to the item. For example, Sumchus would rule yachaloku in a scenario in which Reuven sold an animal to Shimon in an off-site deal in which the two parties were not in the same location as the transferred item (Bava Metzia 100a). The sold animal then gives birth and we are unsure whether the birth preceded the sale (in which case the baby was not included the sale) or the sale preceded the birth (in which case the baby transfers to the purchaser). In this instance, the two parties each have just cause, since the seller owned the fetus at some point and the purchaser currently owns the mother. They alone possess these claims; other parties have no rights or legal stakes. As they alone possess “relevancy” and “just cause,” we can imagine applying Tosafot’s approach that according to Sumchus, each becomes a virtual possessor and yachaloku stems from their jointly enjoyed status as muchzak.
In a classic litigation, in which two random people lodge a claim to a unknown boat (Bava Batra 34b) or to a random garment (Bava Metzia 2a), it would be difficult to envision litigants as joint virtual possessors simply because they lodge a claim that anyone “off the street” could have equally lodged. In these instances, Sumchus would agree that the actual physical possessor triumphs.
It seems that the Ramban’s limitation reflects Tosafot’s method (Bava Metzia 97b) of understanding Sumchus’ view.