Siman 133

Any movable object that is in a person's possession—excluding animals, which will be explained in siman 135—is under the chazakah that it is his. Even if the claimant brings witnesses that they were his and says to the possessor, "I deposited them with you" or "I lent them to you," the possessor is believed to say, "You sold it" or "You gave it to me as a gift," and he shall swear a shevuat hesset that it is so. Even movable property in the possession of a minor is under the chazakah that it is his, unlike the one who disagrees on this [Netivot HaMishpat], and when he grows up, he shall be made to swear a shevuat hesset [it appears to me]. And if the possessor claimed, "It is true that the object is yours, but it is in my hand as a mashkon," he can claim up to the value of the object with a migo that he could have said, "It is purchased in my hand." However, he is obligated to swear a severe oath while holding a sacred object, according to the law of those who swear and take. And even though regarding a purchase he only swears a shevuat hesset, nevertheless, since he admitted it is in his hand as a mashkon, because he does not claim ownership of the body of the object, he must swear while holding a sacred object; and we explained further reasons for this in siman 72, section 33. And although there are those who say that even in this case he only swears a shevuat hesset [the Ra'avad], the halakhah is not so [Shach ibid. subsection 70]. And if the possessor claims that the claimant owes him up to its value from business dealings between them, it is proper that he clarify from what he became indebted to him, lest he thinks he became indebted to him, and when he clarifies his words, perhaps it will be clarified that he does not owe him. However, if he said that he forgot the account but knows clearly that he owes him such and such according to an account between them, the clarification does not hinder. And even if the claimant does not bring witnesses that it was his, he can obligate the possessor in an oath like one who claims, "I have a maneh in your hand," who is obligated to swear a shevuat hesset. However, it appears to me that if according to the eyes of the beit din the object does not belong to the claimant, even though they have no clear proof of this, they do not obligate the possessor in an oath; for if not so, every person who is not decent will obligate oaths on all property owners, and you will not leave anyone a life. For even when one claims, "I have a maneh in your hand," he must clarify his words as I wrote in siman 75, and we have already explained a great principle regarding matters of oaths at the end of siman 15, see there.

Even if the claimant handed the object to the possessor before witnesses, if there are no witnesses who saw the object in his possession close to his claim in a manner that he cannot say "I returned it" before the claim, he is believed with a hesset oath to say "I returned it." And even if now, at the time of the claim, he showed the object to the beit din, he is believed to say "it is purchased" with a migo that he would not have shown the object now [Sma]. However, we do not say that he should be believed with a migo that he would not have shown the object to witnesses before the claim, for that is a retroactive migo. And even if he said then to the witnesses that "it is purchased in my hand," it is nothing, for anything he said outside of beit din is of no use at all [ibid.]. On the contrary, when he said before witnesses "it is purchased in my hand," it is worse; for in this case, even if he showed it to them a long time before he came to beit din, he is not believed afterwards in beit din to say "it is purchased in my hand" with a migo of "I returned it to you," since he admitted before the witnesses that it was purchased, for he is believed regarding his liability in what he admitted before the witnesses [ibid.]. And there are those who disagree in this unless he also had no migo before the witnesses, such as if he saw it with him before he said "I purchased it" [Shach], and such is the primary view [Netivot HaMishpat], and as I wrote in siman 72, section 43. And likewise, when he said before the witnesses "it is a pledge in my hand," he is not believed afterwards even when he had a migo before the witnesses, since with a claim of a pledge he did not acquire the body of the object [ibid.], and it will be explained in section 5.

If at the time he handed it over to him in the presence of witnesses he said to him, "Do not return it to me except in the presence of witnesses," and he says, "I returned it to you without witnesses," some say that nevertheless he is believed with a migo that they were lost by accident, and he shall swear a shvuat ha-dayanim just as if he had claimed they were lost by accident. And some say that he is not believed, for it is like a migo in the place of witnesses, for we are witnesses that he did not return it to him since he stipulated with him that he should not return it to him except in the presence of witnesses [Taz and Shach]. And even though regarding a document with witnesses he is believed to say "I returned it" with a migo that they were lost by accident, and what he said in the presence of witnesses is no greater than if they had signed on the document [Urim Ve-Tummim], nevertheless, by the stipulation that he stipulated, it is as if he explicitly stated to him that he should not be believed with a migo, for if not so, what benefit is the stipulation [Netivot Ha-Mishpat]? And if he claims, "I returned it to you in the presence of Ploni and Ploni and they went to the provinces overseas or they died," he swears a shvuat hesset and is exempt. But if he did not specify "in the presence of Ploni and Ploni," but rather "I returned it to you in the presence of witnesses" generically, he is not believed [Sma], for if not so, there is no end to the matter, for he could always say "I returned it to you in the presence of witnesses," and what benefit is the stipulation? And the matter is proven that he is lying. Therefore, if it is recognizable that in truth he forgot who the witnesses are, he is believed with a shvuat hesset [Shach siman 70, subsection 13]. And if he said to him, "Do not return it to me except in the presence of Ploni and Ploni," and he said to him, "I returned it to you in the presence of others," if those others testified in beit din that he returned it to him in their presence, he is exempt, since in any case they testify that he returned it to him, what does it matter to me if he did not fulfill his words? But if they are not here to testify, he is not believed, as was written there regarding a loan; see there.

If he did not hand it over to him in the presence of witnesses, even if they see it now in his possession, he is believed to say "it was purchased by me." But if he handed it over in the presence of witnesses and also sees it now in his possession close to the time of his claim, he is not believed. And this too is specifically when the witnesses testify that he gave it to him as a deposit or the like; but if they testify that he gave it to him without specification, he can say "he gave it to me as a sale or a gift."

If witnesses saw the object in the possession of the holder before the claimant summoned him to beit din, even if he said in their presence before he showed it to them, "Know that it is pledged to me for the amount of its value," it is properly considered "witnesses and seeing," even if he did not hand it over to him in the presence of witnesses [Taz and Shach]. This is not like the one who disagrees in this matter, for since he has no migo at the time he comes before beit din, this is worse than if he had not said, "It is a pledge in my hand," as I wrote in section 2. We have already explained in siman 72, section 43, that regarding a pledge, the lender must receive a document from the borrower or lend to him in the presence of witnesses. And some say that specifically when he claims from him the money that he lent him, he is not believed in the claim of a pledge that he stated before the witnesses; but if he does not claim the money now and only holds the object until he returns his money to him, he is believed to hold the body of the object, for regarding the body of the object there is no difference whether he said before the witnesses, "It is bought," or "It is pledged" [Netivot HaMishpat]. And this is the primary view, for so it is implied from what was explained in siman 64, see there [and with this, that which the Sma wrote—that we specifically require witnesses and seeing—is settled].

In the case of witnesses and seeing, it is good that the owner of the object should warn him in the presence of those witnesses that he should not return it to him except in the presence of so-and-so and so-and-so. For while he cannot immediately claim "I returned it to you" since the witnesses saw the object, nevertheless, if some time passes, would he not be believed to say "I returned it to you"? Therefore, he should warn him beforehand [see Sma, subsection 9].

If the challenger said to the possessor, "What is its nature with you?" and he said to him, "You sold it to me" or "You gave it to me as a gift," and the challenger claimed, "I deposited it with so-and-so and I told him, 'Do not return it to me except in the presence of witnesses,' and he did not return it to me but gave it to you without my command," and he brought witnesses that he said so to that so-and-so—the possessor shall swear that the challenger sold it or gave it, for we say that if that so-and-so were here, he would say, "I returned it to you in the presence of witnesses" [Sma]. And even if the challenger brought witnesses that he said in their presence to that so-and-so, "Do not return it to me except in the presence of Reuven and Shimon," and they say that he did not return it in their presence, nevertheless we say that if he were here, he would bring other witnesses in whose presence he delivered it, or he would show us the handwriting of the challenger that he received it from him [Shach]. And similarly, if the possessor claims, "You commanded that so-and-so to sell it to me," he is believed with a migo that he could have claimed, "You sold it to me" [ibid.]. And when that so-and-so is here and says that he returned it to him without witnesses, some say that we remove it from the hand of the possessor, for we are witnesses that it came to his hand from the hand of the bailee, as he certainly did not return it to him without witnesses since he told him not to return it except in the presence of witnesses [Taz].

That which we have said, that if he did not hand it over to him before witnesses he is believed even when witnesses now see the object in his hand, in what case does this apply? Regarding items that are not typically lent or rented. However, regarding items that are typically lent or rented, and the claimant has witnesses that they were his and they saw them now in the hand of the possessor, and the claimant says that he lent them or rented them—even though he has no witnesses as to how it came into the hand of this one—the possessor is not believed to say "it is purchased in my hand" or "it is a mashkon in my hand," and he must return it to the claimant. The claimant shall swear a shevuat hesset that he lent it or rented it. And even if it was for three years in the hand of the possessor—for this chazakah is effective even in land—nevertheless, in movables regarding items typically lent or rented it is not effective, for sometimes one lends or rents for more than three years, or perhaps he forgot to whom he lent it or rented it [Tur]. And even if the possessor died, we remove it from the hand of the heir without an oath since the heir does not state a certain claim. But if the heir states a certain claim and said "in my presence he gave it to my benefactor" or "sold it to him," the claimant swears a shevuat hesset. And some say that regarding an heir, even when he does not state a certain claim, the claimant must swear a shevuat hesset, for we claim on behalf of the heir everything that his benefactor could have claimed. Our teacher, the Rema, decided according to this opinion. And in siman 72, section 41, it was explained which object is typically lent or rented; see there.

In what case are these things said? That regarding items made to be lent or rented, the claimant is believed when he claims "I lent them" or "I rented them to you." However, if he claimed "they were stolen from me," he is not believed unless a report of theft went out in the city, as is written in siman 357, for we do not presume people to be thieves. Therefore, even though he has a migo of "I lent them" or "I rented them," he is not believed, for we do not say a migo in the place of a strong presumption, as is written in the rules of migo in siman 82. And some say that this is only when he says "you stole them" or "so-and-so stole them," for then he is not believed to establish him or so-and-so as a thief; but when he says generally "they were stolen from me," he is believed, for there are many thieves in the world and the migo does not contradict the presumption. And even though it would be a migo to extract property, nevertheless, since they are made to be lent or rented, they always remain in the domain of the owner even at the time they are found in the domain of another. Furthermore, even according to his claim that it was stolen, he must return the money to the buyer because of the market enactment, as is written there [Shach], and more will be explained regarding this with the help of Heaven.

And so, one who held in his possession items that are made to be lent or rented, even if he admitted and said, "I know they were yours, but so-and-so sold them to me or gave them to me as a gift," and the other party claims that the aforementioned so-and-so borrowed them from him or rented them and sold them to him through theft—we do not remove them from his possession. Even if the claimant brought witnesses that these vessels were his, since a person is prone to sell his vessels as well; for although items made to be lent or rented are in the presumptive possession of the owners, and we even remove them from heirs as has been written, nevertheless, since according to the words of the claimant that so-and-so is a thief, and this so-and-so is not before us, we do not seize upon his words to make him a thief. We say perhaps if he were before us, he would clarify that he sold them to him. In a case such as this, which makes the seller a thief, we plead on behalf of the buyer [Shach, and as written in the Urim VeTummim]. This is not similar to a craftsman, which will be explained in siman 134, because the vessels in the hand of the craftsman are literally as if they are standing in the domain of the homeowner [and the difficulty of the Taz is well-settled]. There are those who disagree and hold that the possessor is no better than that so-and-so himself; and since that so-and-so himself is not believed without proof when there are witnesses who saw the objects with him, so too this one who comes through his power is not believed. This reasoning—that we do not establish people as thieves—is only when he says that he did not lend them at all but rather they stole them from him. But when he says that he lent them and the borrower sold them, even though in truth it is theft, nevertheless, since he does not say that he stole them and is a thief in the manner of a thief and a robber, but rather that it came into his hand permissibly, we establish it in the domain of the first party. A proof for this is that if we do not say so, then in all items made to be lent or rented, when we remove them from the possessor, perforce it makes the possessor a thief, and yet he is believed. And if it is because perhaps if this so-and-so were before us he would clarify that he bought them, nevertheless, now that the clarification is not before us, we establish these vessels in the presumptive possession of the first party. Our teacher, the Rema, decided in favor of this opinion. And if the claimant argued, "I lent them or rented them to you," we remove them from his possession since there are eyewitnesses and he has no migo of "the matter never occurred" or "I returned them," and we pay no attention to what he says, "so-and-so sold them to me," and even according to the first opinion. One should not raise a difficulty according to the first opinion that he should be believed to say that so-and-so sold them to you through theft via a migo that if he wanted he could have said "I lent them to you," for this is like a migo in the place of a strong presumptive status according to this opinion, as has been written. If the objects were from items that are not made to be lent or rented, and he says that he bought them from so-and-so, the possessor takes a hesset oath that this claimant did not lend them or rent them to him, but rather he bought them from so-and-so, and we leave the vessels in his possession. There are those who say further that this which we said—that when he claims they are stolen he is not believed—this is specifically when the possessor claims "you sold them to me" and he claims "they were stolen," for then perforce one must say that if it is according to the words of the claimant, then the possessor himself stole them; for if it were not so, but rather he purchased them from the thief, why did he not say so, "I purchased them from so-and-so"? Rather, certainly he himself stole them, and therefore the claimant is not believed to make him a thief. But when he says "so-and-so sold them to me" and the claimant says "it could be according to your words, but they were stolen from me," the claimant is believed, for he does not make even the so-and-so into a thief, as it could be that the thief sold them to so-and-so and so-and-so sold them to him, and there are many thieves in the world [Netivot HaMishpat].