The Shevu’a that Accompanies Yachaloku Distribution

  • Rav Moshe Taragin

A previous shiur discussed different strategies for understanding the verdict of yachaloku in which a disputed item that is jointly held by the two litigants is divided. The first mishna in Bava Metzia presents this famous case and issues the verdict of yachaloku accompanied by a shevu’a. According to one approach, neither party is recognized as a muchzak; the verdict of yachaloku is a court-administered compromise. Alternatively, each party is considered in possession as the muchzak of half the disputed item, and the verdict is merely an application of the principle of ha-motzi mei-chaveiro to each party.


An interesting offshoot of this question is the nature of the shevu’a in this case. Typically, ha-motzi mei-chaveiro verdicts do not require an accompanying shevu’a. The defendant retains possession and he is not required to take an oath. If partial yachaloku reflects a dual allocation based on the fact that each party is considered a muchzak, the shevu’a would seem unnecessary. This, in fact, appears to be the gemara’s logic when it twice (3a, 5b) questions the need for shevu’a. In each instance, the gemara invokes the view of R. Yochanan, who attributes this tacked-on shevu’a to a completely unrelated function. The shevu’a does not service the current dispute; the tallit can, in fact, be split without a shevu’a because each is considered in exclusive possession of the entire tallit, and as a muchzak, each is entitled to half the garment even without an oath. The oath is necessary as a social policy and is meant to deter future aggressors from unilaterally seizing an article and asserting a false claim of ownership, knowing that they will be rewarded half of their claim. The threat of a shevu’a will discourage aggressors from unilateral seizure; the current verdict of yachaloku itself however, can be implemented without a reinforcement of a shevu’a.


Alternatively, if the two disputants over the tallit ARE NOT considered muchzakim of their separate halves and the yachaloku verdict is purely a court imposed compromise, the shevu’a may be intrinsically necessary; the shevu’a solidifies their “hold” upon the tallit.


To summarize, the NATURE of the yachaloku division described in the first mishna of Bava Metzia may affect the FUNCTION of the SHEVU’A If the yachaloku solution reflects each party being a muchzak of half the tallit, the shevu’a must play an ancillary and extrinsic role. If the disputants are not considered muchzakim, the court imposed distribution may be dependent upon a shevu’a to solidify the respective claims.


There are several applications of the mishna’s shevu’a that may help determine whether this shevu’a is an intrinsic part of the litigation meant to solidify the claims or merely a tacked-on shevu’a meant to discourage future aggression. For example, the gemara applies the yachaloku division to a purchased item that is disputed. Two litigants each claim that they purchased the same item from a third party. Yachaloku mandates that they split the item. The gemara (2b) suggests consulting with the seller about whom he sold it to, thereby exonerating that party from a shevu’a. Many Rishonim (Rabbenu Tam in particular) view this statement as global; ANY shevu’a can be forgone if a lone witness supports the position of the litigant who otherwise would take an oath. This principle – known as eid mesayei’a – can be applied broadly. By contrast, the Ba’al Ha-Ma’or claims that only the mishna’s shevu’a – in a case of a yachaloku – can be eliminated when a lone witness supports the claim.


Presumably, Rabbenu Tam and the Ba’al Ha-Ma’or dispure the nature of the mishna’s shevu’a. Rabbenu Tam views it as intrinsic; thus, the gemara’s assertion of an eid echad exemption, it applies broadly to ALL similar intrinsic shevuot. The Ba’al Ha-Maor views the shevu’a as a tacked-on shevu’a. Since in THIS case the shevu’a is not an intrinsic element of the litigation, it can be waived. The fact that THIS shevu’a is exempted when there is an eid echad does not imply that ALL shevuot may be similarly exempted.


An interesting statement of the Rambam in Hilkhot To’en Ve-Nit’an (perek 9) applies an interesting halakha to the mishna’s shevu’a. Once the litigants take their respective oaths, they can be asked to “stretch” their oaths and swear about other cases that they would not otherwise be obligated to swear about. This stretching – known as gilgul shevu’a – is a well-known apparatus, but it is typically applied to classic litigational shevuot. Does the Rambam’s willingness to apply gilgul to the mishna’s shevu’a indicate that he viewed this shevu’a as intrinsic? Presumably, if the shevu’a were not litigational but rather “social” – intended to prevent future aggression – it might not serve as the baseline for shevu’a extensions through gilgul.


It is clear that there was one Amora who viewed the shevu’a as litigational. R. Chiya asserts two halakhot about a classic modeh be-miktzat shevu’a that the gemara attempts to extrapolate from the mishna obligating a shevu’a as part of the yachaloku compromise. One halakha (known as his first extrapolation, or Rav Chiya kamaita) suggests that a classic shevu’a is obligated in the case of modeh be-miktzat even if a claim was partially ratified by witnesses (see previous shiur). Our mishna presents a case in which each litigant claimed the entire tallit and ownership over HALF the tallit was corroborated by the respective physical hold over half the TALLIT. This is equivalent to a claim being partially ratified by witnesses. Since the mishna’s case yields a shevu’a, evidently ANY situation of partially corroborated claims will yield a shevu’a.


This extrapolation certainly implies that the mishna’s yachaloku shevu’a is not merely an extrinsic shevu’a, but rather stems from the partially corroborated claim, and suggests an extension of modeh be-miktzat.


Although the gemara accepts this halakhic extension, it rejects the extrapolation from the mishna. However, it introduces a second extrapolation (known as Rav Chiya batraita) that does stem from the mishna. A classic modeh be-miktzat setup obligates a shevu’a for the denied portion of a partially confessed-to claim. However, many assert that if the confession is followed by instant payment, no shevu’a is obligated. (This scenario is known as heilakh and was discussed more extensively in a previous shiur.) R. Chiya inferred from our mishna that heilakh is NOT exempt from the shevu’a. Our mishna’s scenario of yachaloku mimics heilakh in that half of the claim is IMMEDIATELY awarded to the litigant because it is already in his possession. The obligation of a shevu’a despite this condition convinces R. Chiya that heilakh situations similarly demand a shevu’a, in opposition to the commonly held view.


Again, comparing the mishna’s shevu’a to a classic modeh be-miktzat setup – and deriving a general halakha about modeh be-miktzat from it – implies that R. Chiya viewed the shevu’a of the mishna as INTRINSIC to the litigation and not merely as an extrinsic shevu’a intended to prevent future aggression.


Additionally, the syntax of the shevu’a may indicate its function. The gemara (5b) supplies a very peculiar language; each disputant swears that he owns “some of the tallit and at least half of the tallit.” The gemara immediately probes this strange language. Why doesn’t each ba’al davar swear that he owns the ENTIRE tallit, as he claimed?! The gemara responds that since each party only receives half the disputed tallit, they cannot swear to owning the entirety. Apparently, the shevu’a functions to reinforce their hold on the disputed tallit and facilitate the division of that tallit through yachaloku. Since they each walk away with 50%, the shevu’a must mirror that. Had the shevu’a been merely extrinsic, perhaps the oath would assert a claim that is not reflected in the ultimate allocation of the tallit.


Finally, the question of the function of the shevu’a may have determined the SCOPE of the shevu’a. As discussed in a previous shiur, the yachaloku case of the mishna splits in to two derivative cases. If the two parties are actually grasping the physical tallit, they each receive the part they are clutching and only divide the middle, unpossessed part of the tallit; if they are merely holding the fringes of the tallit, they enjoy an even split. In a situation in which they are actually grasping the tallit, should they swear about the ENTIRE tallit, or only the unclutched middle section, which they divide equally? For example if Reuven is clutching 40% and Shimon is holding 20%, Reuven is awarded 40%+20%=60% of the tallit, while Shimon is awarded 20%+20% = 40%. Should Reuven swear about the entire 60% that he is awarded, or only about the 20% he is awarded despite not physically clutching that part? Tosafot (7a) maintain that he swears about the entire award, while the Rambam (Hilkhot To’en Ve-Nitan, perek 9) rules that items that are physically possessed and subsequently awarded do not generate a shevu’a.


Perhaps the debate surrounds the nature of the shevu’a accompanying yachaloku settlements. The Rambam believes that the shevu’a establishes and reinforces possession over disputed parts of the tallit to facilitate the allocation of yachaloku. The percentage of the tallit HELD by each party does not require reinforcement and can be allocated without a shevu’a. By contrast, Tosafot may have determined that the shevu’a is purely extrinsic, imposed upon yachaloku beneficiaries to prevent future aggression, and it should thus apply to the entire tallit that is allocated through yachaloku. Indeed, Tosafot’s language initially suggests the view that the shevu’a as extrinsic as the basis for its broad application. Tosafot’s concluding remarks may indicate a retreat from this position, instead viewing the shevu’a as part of the actual litigation.