Shas:Objects Which May Be Loaned/2

Objects Which May Be Loaned

Exegetical Approaches

This topic has not yet undergone editorial review

The Facts of the Case Prove Ownership

Legal possession is entirely dependent on physical possession, and thus the defendant, who maintains physical possession, is also in legal possession of the object. However, the dubious nature of the transfer of possession, is enough to prove the claimant's case. This approach subdivides regarding the details of the dubiousness of the transfer, which depend on the chosen textual variant.

Sources:RashiShevuot 46bAbout R. Shelomo Yitzchaki, Ri MiGashShevuot 46bAbout R. Yosef b. Meir HaLevi Ibn MiGash

Textual Variants – According to Rashi, the correct variant is to read "לא אמרן אלא בדברים העשוין להשאיל ולהשכיר אבל דברים שאין עשוין להשאיל ולהשכיר נאמן". Rashi understood this to be an additional limitation imposed on Rav Yehuda's statement, joining the four previous limitations. Thus, Rav Huna bar Avin's statement is part of an explanation of Rav Yehuda's statement.

What Are Objects Which May Be Lent or Rented? According to Rashi, these are any object which the owner is willing to lend or rent, in contrast to objects which are exclusively used by their owner (such as objects easily damaged by their use).

When is the Claimant Believed? According to Rashi and R"Y MiGash, the claimant is believed when he can bring enough proof that the disputed object was removed from his possession suspiciously. Only when all six conditions apply ([1] witnesses state the defendant hid the disputed object beneath his clothes, [2] despite it not being an object which tends to be hidden, [3] nor him being a person who tends to hide such objects, [4] the claimant does not usually sell his possessions, [5] the claimant is stating he lent or rented the object to the defendant and not that it was stolen, [6] the object is one which may be lent or rented), then the defendant is suspected enough that the claimant is believed.

Claiming the Object Was Stolen – According to this approach, unless the claimant can bring proof of a burglary, or of the defendant being a known thief, then he cannot claim the object was stolen. This חזקה, that the defendant is not a thief unless proven otherwise, is stronger than possible מיגוs to the contrary.

Necessity of an Oath – Rashi only mentions an oath (presumably the שבועת היסת) in the cases where the defendant is believed, in which case, in order to maintain possession, he must swear he bought the object honestly. When the claimant is believed, no mention is made of any oath on his part (to the contrary, Rashi explicitly states that in these cases the defendant does not take an oath). This implies that שבועת היסת is limited to the defendant (who is physical possession), and thus an oath is only taken when the defendant is believed.

Rava's Case – According to R"Y MiGash, in Rava's case, witnesses stated that the book and scissors were removed from the claimants possession by the defendants' father, who hid them beneath his clothes.¹ Presumably, the case fulfilled all of the other criteria mentioned as well.

Who is in Legal Possession? Rashi does not mention legal possession, but it would be simplest to assume that he understands the legal possession to follow the physical possession, and thus in all of our cases the defendant would be in legal possession.

Sources:R. Hai GaonMishpetei Shevuot Part 2 Section 2, R. ChananelShevuot 46bAbout R. Chananel b. Chushiel

Textual Variants – According to R. Hai Gaon and R. Chananel, the text states "ובכולהו לא אמרן אלא בדברים שאין עשויין להשאיל ולהשכיר אבל דברים העשויין להשאיל ולהשכיר אינו נאמן". R. Chananel understood this to be limiting the prior discussion of Rav Yehuda's statement to cases where the object are not used for lending or renting, and provides an alternate explanation of Rav Yehuda's statement, which applies it also to all cases where the object is used for lending or renting. Thus, Rav Huna bar Avin's statement is an explanation of Rav Yehuda's statement.

What Are Objects Which May Be Lent or Rented? R. Hai Gaon and R. Chananel do not define these objects.

When is the Claimant Believed? According to R. Chananel, the claimant is believed when he can bring enough proof that the disputed object was removed from his possession suspiciously. This may happen in two ways: if the object tends to lent or rented, then it is enough that the defendant hid the object beneath his clothes to throw enough suspicion on the defendant. If, however, the object does not tend to be lent or rented, then five conditions are required for the defendant to be believed ([1] witnesses state the defendant hid the disputed object beneath his clothes, [2] despite it not being an object which tends to be hidden, [3] nor him being a person who tends to hide such objects, [4] the claimant does not usually sell his possessions, [5] the claimant is stating he lent or rented the object to the defendant and not that it was stolen).

Claiming the Object Was Stolen – R. Chananel does not deal explicitly with cases where the claimant states the defendant stole the object (instead of claiming the object was lent). However, R. Hai Gaon implies, and Tosafot clearly understood R. Chananel to state, that the claimant is never believed when claiming the object was stolen (without positive proof), whether or not the object may be lent or rented. This חזקה, that the defendant is not a thief unless proven otherwise, is stronger than possible מיגוs to the contrary.

Necessity of an Oath – R. Hai Gaon states that when the claimant is believed, he must take an oath, that this oath is a form of the Mishnaic oath taken by a claimant who's property was stolen (and not the lower grade שבועת היסת).²

Rava's Case – According to R. Chananel, in Rava's case, witnesses stated that the book and scissors were removed from the claimants possession by the defendants' father, who hid them beneath his clothes. However, none of the other conditions need to have applied.

Who is in Legal Possession? R. Hai and R. Chananel do not explicitly mention legal possession. However, R. Chananel states that witnesses who claim the defendant hid the object beneath his clothes are necessary in order to circumvent the rule of המוציא מחברו עליו הראיה, which otherwise would have resulted in the defendant being automatically believed. This implies that the defendant, due to being in physical possession, is also in legal possession of the disputed object, and the claimant is believed only because he has enough proof to overcome the legal possession.

The Original Owner Has Legal Possession

Legal possession is dependent on the facts of the case, and need not follow the physical possession. If physical possession is unlikely to have been caused by a sale, then legal possession returns to the original owner. Thus, in such cases, despite the defendant being in physical possession of the object, the claimant retains his original legal possession, which results in a ruling in his favor.

Sources:RifShevuot 27b-28bAbout R. Yitzchak Alfasi, RambamHilkhot Geneivah 5:10-12Hilkhot To'ein veNit'an 8Hilkhot To'ein veNit'an 9:1-5Hilkhot To'ein veNit'an 10:1-3About R. Moshe b. Maimon

Textual Variants – According to Rif, and presumably Rambam as well, the text states "ובכולהו לא אמרן אלא בדברים שאין עשויין להשאיל ולהשכיר אבל דברים העשויין להשאיל ולהשכיר אינו נאמן". Rif and Rambam understood this to be limiting Rav Yehuda's statement to cases where the object are not used for lending or renting. Thus, Rav Huna bar Avin's statement is independent of Rav Yehuda's.

What Are Objects Which May Be Lent or Rented? According to Rambam, these are objects which are exclusively rented or lent to others (such as large containers rented for events, or special wedding jewelry), and are not used by the owner himself, in contrast to objects which are occasionally rented or lent out, but also used by the owner.

When is the Claimant Believed? According to Rif and Rambam, the claimant is believed whenever the disputed object is unlikely to have been sold to the defendant. Thus, if the object is only lent or rented, or when sheep graze unsupervised, or when the defendant acted suspiciously when he took the object (he hid it beneath his clothes despite it not being an object which tends to be hidden nor him being a person who tends to hide such objects, and the claimant does not usually sell his possessions) then the claimant is believed when he states he lent or rented the object.

Claiming the Object Was Stolen – According to Rambam, unless the claimant can bring proof of a burglary, or of the defendant being a known thief, then he cannot claim the object was stolen. This חזקה, that the defendant is not a thief unless proven otherwise, is stronger than possible מיגוs to the contrary.

Necessity of an Oath – According to Rambam, a שבועת היסת is necessary in all cases. When the defendant is believed, then the defendant swears a שבועת היסת that he owns the disputed object, and when the claimant is believed the claimant swears a שבועת היסת that the object is his. According to this, the Rambam understands that a שבועת היסת is required for people in legal possession of a disputed object, and not those in physical possession.³

Rava's Case – According to Rambam, in Rava's case, witnesses only stated that the book and scissors belonged previously to the claimant. This matches the two parallel mentions of the story, where no other details are mentioned.

Who is in Legal Possession? The Rif implies and the Rambam explicitly states that objects which may be lent or rented are in the legal possession of their original owner (the claimant), while all other objects are generally in the legal possession of their physical possessor. However, since one cannot swear a שבועת היסת without being in some form of possession of the object, and the Rambam and Rif state that when the claimant is believed he must swear a שבועת היסת, even when the objects are not those which are lent or rented, it is clear that the Rambam and Rif view the claimant to be in legal possession whenever he is believed.

Either, Depending on Object

Legal possession is dependent on the object, and need not follow the physical possession. If physical possession of a certain object can happen legally without a sale, then legal possession returns to the original owner (thus resulting directly in a ruling favoring the claimant). If, however, it is unlikely that that object will be transferred legally without a sale, then legal possession remains with the physical possessor, which will require proof that the transfer of possession is dubious enough, in order to override the legal possession (also resulting in a ruling favoring the claimant).

Sources:R. Tam as cited by TosafotShevuot 46a-bAbout R. Yaakov b. Meir

Textual Variants – R. Tam follows R. Chananel's variant, which states "ובכולהו לא אמרן אלא בדברים שאין עשויין להשאיל ולהשכיר אבל דברים העשויין להשאיל ולהשכיר אינו נאמן". R. Tam understood this to be limiting Rav Yehuda's entire statement to cases where the object are not used for lending or renting.⁴ Thus, Rav Huna bar Avin's statement is independent of Rav Yehuda's.

What Are Objects Which May Be Lent or Rented? According to R. Tam, these are any object which the owner is willing to lend or rent, in contrast to objects which are exclusively used by their owner (such as objects easily damaged by their use).

When is the Claimant Believed? According to R. Tam, the claimant is believed whenever the disputed object is one which may be lent or rented, and the defendant cannot prove he bought it. Additionally, even if the object is one which may not be lent or rented, but the defendant acted suspiciously when he took it (he hid it beneath his clothes despite it not being an object which tends to be hidden nor him being a person who tends to hide such objects, and the claimant does not usually sell his possessions) then the claimant is believed when he states he lent or rented the object.

Claiming the Object Was Stolen – According to R. Tam, as a general rule, the claimant cannot make unsubstantiated allegations that the defendant is a thief. However, due to the mechanism of מיגו, if the claimant is believed when he claims the defendant rented the object from him, then he is believed when he claims the defendant stole the object from him, but only if such a claim does not result in the removal of the object from the possession of the legal possessor (מיגו להוציא). Thus, the claimant can only claim theft when the object is one which may be lent or rented (where the claimant is considered the legal possessor) and not otherwise.⁵

Necessity of an Oath – According to this approach, when the defendant is believed he must swear a שבועת היסת, as usual. However, when the claimant is believed, then this must depend on the case: when the object may not be lent or rented, then the claimant is in neither legal nor physical possession, and thus cannot swear a שבועת היסת. However, when the object may be lent or rented, then it is possible that a שבועת היסת would be required since the claimant is in legal possession, but R. Tam does not comment either way.

Rava's Case – According to this approach, in Rava's case, witnesses only stated that the book and scissors belonged previously to the claimant. This matches the two parallel mentions of the story, where no other details are mentioned.

Who is in Legal Possession? R. Tam does not explicitly state who is in legal possession. However, he differentiates between cases where the object may be lent or rented, where the מיגו which allows the claimant to claim theft applies, to cases where the object cannot be lent or rented, where the מיגו does not apply. The only possible distinction is with regards to legal possession: in the former the claimant is in legal possession, and thus the מיגו applies, while in the latter, the defendant is in legal possession (regardless of whether he is believed), and thus the מיגו is considered מיגו להוציא and does not apply.

¹ Rashi does not state so explicitly, and in fact, the simple reading of his statement implies the witnesses only testified regarding the prior owner, and not regarding the method of transfer.

² R. Chananel does not mention any oath, and it is possible that he disagreed with R. Hai Gaon, and followed the Halakhot GedolotSiman 52, who, in his rendition of the sugya, states that an oath by the claimant is unnecessary.

³ Bavli Shevuot 40b explains that since a claimant is unlikely to bring a false suit, Rav Nachman created the שבועת היסת so that the defendant will swear he's innocent. Rambam must either understand that this explanation does not encompass all cases of שבועת היסת, and thus sometimes the claimant may be required to take this oath, despite the reasoning not applying to him, or that the "claimant" in that sugya is a legal term actually referring to the litigant in legal (as opposed to physical) possession, and does not reflect the physical reality.

⁴ R. Tam proves this from the word "ובכולהו", which implies it is referring the entire previous discussion, including Rav Yehuda's own statement. However, cf. Halakhot GedolotSiman 52 who follows this variant but omits the word "ובכולהו".

⁵ This results in a somewhat paradoxical situation, where when it is possible the object was lent or rented, the claimant may claim theft, but when it is unlikely the object was lent or rented, and foul play is suspected, then the claimant may claim he lent or rented the object, but not theft.