Siman 138

Since it has been explained that all movable property is established in the hand of the possessor, therefore, if two are possessing it equally, we establish it in the possession of both of them and they shall divide. How so? Two who were holding one garment or one vessel, or were riding upon one animal in a manner of riding through which one acquires, as will be explained in siman 197; or if one was riding upon the animal and one was leading it; or if two were sitting beside a pile of wheat, close to the wheat, not further than four amot, and the wheat is lying in a simta, which is a place fit for acquisition as I wrote in siman 198, and when they sit beside it, it is considered as if both are possessing it (Shach); or if they are lying in a courtyard belonging to both of them, for then even if they are not sitting beside it, they are as if possessing it, and even if one sits beside it and one does not sit, nevertheless it is in the possession of both of them since it is lying in their domain (it appears to me); and likewise when they dispute over objects in a house of partnership or that both of them rented, to the exclusion of if the house belongs to one or if one of them rented it and took the second to dwell with him for free, all the movable property in the house is only in the possession of the homeowner or the one who rented it. And if he rented a portion of the house to his fellow, even though the house is his, nevertheless, since he rented a portion of the house from him, everything found is in the possession of both of them, for a rental for the day is like a sale (Netivot HaMishpat). And if he rented the entire house, everything found is in the possession of the renter. And if each person has specific rooms, each one possesses alone what is found in his rooms, and everything in the courtyard is in the possession of both of them when both of them have permission to use it. And even if one has many household members and one has few, this one does not have more possession than the second. And even if both of them rented it and one pays more rent, nevertheless, since both have permission to use it there, everything found is in the possession of both of them equally. And likewise if two dispute over a roof that is over their houses, where the roof is supported on one side by the house of Reuven and on one side by the house of Shimon and the public domain passes beneath it, and each one says that the wood of the roof is his, it is as if both are holding it and they divide. And in an inn, all movable property found is in the possession of the innkeeper; however, if the guests have specific rooms where the homeowner does not use at all, all the clothes found there and the money and types of merchandise, everything is in the possession of the guests, and it depends on the assessment of the beit din (it appears to me).

In all these matters where it is in the presumption of both of them, and both are equally seized of it, and this one says "it is all mine" and this one says "it is all mine," they shall divide it. However, our Sages, of blessed memory, were concerned lest each person go and seize his fellow's object and become seized of it like his fellow and divide it with him; therefore, they imposed an oath while holding a sacred object upon each of them so that the liar would withdraw from this. And how shall they swear? For if each one swears that it is all his, a false oath will be clearly evident from one of them, and why should we do so? And if each one swears that he has half in it according to what they are taking, the matter is unseemly, as his oath contradicts his claim wherein he said "it is all mine." Therefore, our Sages, of blessed memory, ordained that each one shall swear an oath: "that I have an interest in this object and I have no less than half of it," and they shall divide it. And if one said to his fellow, "Swear and take all of it," we listen to him. And if the second one also does not wish to swear, they divide it without an oath. And if one desires to swear and the second does not desire to, the one who desires to swear swears and takes all of it.

One says "it is all mine" and one says "half of it is mine": if it is a thing fit for division, he takes the half that his fellow admits to him without an oath, and afterwards each one swears that he has no less than half of the second half, and they divide the second half. And if it is a thing that is not fit for division, the one who says "it is all mine" shall swear an oath "that I have a portion in it and that I have no less than three parts," and the one who says "half of it is mine" shall swear an oath "that I have a portion in it and that I have no less than a quarter," and this one takes three parts and this one takes a quarter. And why does he also swear on the half that was admitted to him? In order that he should not perform some deceit in his oath. And the manner of division when there is a loss if they were to actually divide it: they shall sell it and divide the money according to the division that has been explained. And this one who claims "half of it is mine" is not believed to take the half by means of a migo that he could have said "it is all mine," for we do not say a migo to extract, as I wrote in siman 82. And even according to the one who holds that we do say a migo to extract, nevertheless it is more comfortable for him to say "half of it is mine," for he does not embolden himself against his fellow as much as by saying "it is all mine" [Nimukei Yosef, beginning of Bava Metzia], and this is not a good migo. Furthermore, if he were to take the half, it would be more comfortable for him to say "half of it is mine" and that he should take his entire claim, rather than saying "it is all mine" and not taking but half of the claim; therefore, just as if he says "it is all mine" he only takes half of his claim, so too when he says "half of it is mine" he only takes half of his claim [ibid.]. Furthermore, although we explained there that we say a migo from money to money, that is when he is in possession of both sums of money entirely; but when he is not in possession of both of them entirely, as here where the second one is also in possession of them, we do not say a migo from money to money even according to the one who holds that we do say a migo to extract [and that which the Shach wrote there in subsection 13 is well-settled]. Furthermore, there is one who says that we do not say a migo except in a place where if he had claimed the migo there would be no doubt in his claim; but if even in the migo there would be a doubt in his words, we do not say a migo [Knesset HaGedolah there, subsection 135, and see there in Urim VeTummim].

Some say that this rule that both of them divide is specifically in a place where it is possible that both of them are not lying, such as with a lost object or a transaction, where it is possible that both of them found it or both of them purchased it, and similarly with items in a house, it is possible that they belong to both of them. But when one of them is certainly lying, such as when this one says, "I wove the object," and this one says, "I wove it," it shall be left until Eliyahu comes. And some say there is no distinction in this, for even though one is lying, nevertheless the division could be the truth, for perhaps he transferred half to him [Sma]. And it is not similar to what will be explained in siman 300, that a third maneh shall be left in the hand of the third party and we do not say they divide, even though the fact that the third party is holding it is as if both of them are holding it. For there, since before their dispute was known it was known to the third party that it belonged to one of them alone, they do not divide it between them, for certainly the division would not be the truth, as it is not the way to transfer what is placed in the hand of a third party. But here, where before this it was not known to us at all to whom it belongs, they divide it between them [Tosafot and the Rosh, beginning of Bava Metzia]. And even though in siman 222 it will be explained regarding a purchase when he received money from one willingly and from one against his will, and nevertheless we say they divide, this is because there is no loss in that, since they take it for money, and also the deception is not so recognizable, for it is possible that even though he received it from one against his will, nevertheless it seemed to him that he had consented; which is not the case regarding "this one says I wove it and this one says I wove it" [it appears to me, and the difficulty of the Urim VeTumim is answered].

In what case are these words said, that they divide equally? When they are holding the edge of the tallit such that there is not three by three fingerbreadths of the garment in the hand of one, which is the smallest measure for tumah, and with a kinyan one does not acquire when grasping less than this measure, as was written in siman 195; therefore, they are like holders of the entire garment equally. But if each one has a bit of the tallit in his hand, not less than three by three, and this one says "it is all mine" and this one says "it is all mine," this one takes until the place his hand reaches in its grasp, and this one takes until the place his hand reaches, for in this case where each one is an actual holder, the second has no power to remove it from his hand, and the remainder they divide equally and swear in the manner that has been explained. And each one may roll an oath upon his fellow that everything he took of what he grasped, he took by law. And some say that the beginning of the oath is also on what they are grasping [Sma and Shach], for since the essence of the enactment of the oath was so that each and every one would not grasp his fellow's tallit, if so, this enactment also applies to what he grasped. And regarding an animal, when one is riding and one is leading, their grasping is considered equal, for it moves by the power of both of them equally. And when one is riding and one is grasping the halter, it will be explained in siman 271 that the rider acquires the animal and the one grasping the halter only acquires what is grasped in his hand. And if one is holding the entire garment or the vessel and the second is struggling with him and hanging or clinging to it, it remains in the chazakah of the one holding it, for clinging and hanging are nothing.

When they divide the garment in a case where both are not grasping it and they divide equally, even if the garment was embroidered with gold and silver embroidery and they are close to one side, he cannot say "let us divide it across its width" so that the silver and gold will come to his portion; rather, they divide it across its length and it will come to both of them equally, for in that which they are not actually holding, the power of both of them is equal. And it has already been explained that regarding any division mentioned here, if it is a matter that will be damaged even slightly [ibid.] if it is actually divided, they sell it and divide the money between them. And some say that if the loss is less than a fifth, it is not called a loss, but this does not seem so from all the poskim [see Netivot HaMishpat].

The beit din must observe the manner of their holding when they come to the beit din, for if at the time of the act both are grasping it, they shall divide it. But if one is grasping it and the second is only trailing after it, it belongs entirely to the one grasping it. And even if the second says that he too was grasping it before their arrival at the beit din, only this one seized it from his hand, he is not to be heeded unless witnesses testify that they previously saw the manner of their holding, and then the law of the witnesses' observation is like the law of the beit din [Shach]. And if both came clinging to the object before the beit din or witnesses, and one snatched it from the hand of his fellow in their presence, if the second cries out immediately, his seizure is nothing. But if he was silent at the time of the act, even though he later cried out, it is not removed from the one who seized it, for the silence he maintained is like an admission. And all the more so if even afterwards he did not cry out, for it is a complete admission, even though he says, "What reason did I have to cry out, for the beit din or the witnesses see that he seized it from me?" This is no claim at all, for if he did not admit it to him, he would not have been silent. Therefore, some say that even if the one who was silent later brought witnesses that it is his, it is of no avail, for since he admitted it to him with his silence, the admission of a litigant is like a hundred witnesses, and he is more believed regarding himself than the witnesses. And some say that this is only if he was silent from beginning to end, but if he was silent and afterwards cried out, this is not a complete admission but a doubtful admission, and since he brings witnesses, it is removed from the second [Bach and Taz], and so is the primary ruling [Netivot HaMishpat]. And if he claims, "I erred in my silence," some say that before witnesses he can say "I erred," but not before the beit din [ibid.], for before the beit din a person is very precise. But if he claims, "I did not admit with my silence," he is not believed even before witnesses, for we are witnesses that since he was completely silent, it is like an admission.

If the one returned and seized it from him in our presence immediately, even though this one screams from beginning to end, they shall divide it as before. And the reason is that even though we say that the second seizer admitted to the first, and what does his seizing now avail, and also without this, behold the seizing of the second is not a seizing at all for it is a seizing after the doubt was born—for it is well that regarding the seizing of the first we say that the second admitted to him, but the seizing of the second, what does it avail—nevertheless, since when they came before us both were holding it and we judge in this the law of division, therefore since this one seized from this one and this one from this one, we nullify the seizings and judge the law of division as before. And according to this, we shall judge in it the law of division forever, even if the first returns and seizes [as mentioned above according to this opinion, which is the opinion of the Rambam and the Beit Yosef]. And some say that since the first merited because of the admission of the second, the second cannot seize it from him anymore and his seizing is nothing unless he brings proof with witnesses that it is his. And even according to the "some say" in the previous section that even witnesses do not avail, nevertheless in a case where he returned and seized, witnesses avail [and that which our teacher, the Rema, wrote in section 7 "without proof" is settled by this, and it contradicts what he wrote in section 6, and examine this well]. And the main point for the halacha is that if during the seizing of the first the second was completely silent, his seizing no longer avails, but if he was silent and afterwards screamed, his seizing avails and they shall divide (Shach). And from here on, seizing shall no longer avail and they shall divide forever, and witnesses avail (so it appears to me):

If at the time they were seized before the beit din, one of them consecrated the object or said "let it be for the poor," even if the second remained silent, the portion of the second is not consecrated, for he does not have the ability to consecrate something that is not in his possession. And his silence is not proof of an admission such that [the first] would have the ability to remove it from his hand, for why should this one cry out? Since he consecrated it, it is not consecrated. However, if one seized it in our presence in a manner that he acquired it, such as where the second remained silent, if the one who seized it consecrated it, then it is consecrated, and it is no longer effective if the second should go back and seize it from the first (Sma). And even if he was silent and ultimately cried out at the time of the first one's seizure, for since it was entirely in the hand of the first, he had the authority to consecrate it. And it appears to me that also if he sold it to another with a kinyan sudar, it would be like if he consecrated it.

If both of them came holding the garment or the vessel and the beit din said to them, "Go out and divide it or its value," and they went out and returned and behold it is in the hand of one of them, and he claims that the second admitted to him upon their exit from beit din that he has no portion in it, and the second claims, "I did not admit to him, but rather I rented it to him," he is not believed, and the burden of proof rests on the claimant. For how is it possible that he would rent it to him without witnesses since he said before us that he is a robber regarding this object, in that "it is all mine"? And even if he said, "He overpowered me and snatched it from me," he is not believed without proof, for he should have guarded himself from him and taken witnesses with him (ibid.). And if he did not bring proof, the one holding it shall swear a hesset oath that he admitted to him and be exempt, and his fellow cannot return and seize it from him (Shach). And there are those who say that certainly when he says, "I rented it to him," he is not believed, but with the claim that "he snatched it from me," he is believed, for it is not in his power to bring witnesses with him, and therefore they are as before and shall divide. And he is not believed to say "I rented it to him" with a migo of "he snatched it," for this is like a migo in the place of witnesses, as we are witnesses that he would not have rented it to him without witnesses. Therefore, if he said, "I rented it to him before so-and-so and so-and-so and they went to the countries across the sea," he is believed with a migo that he could have said, "He snatched it from me," and our teacher, the Rema, ruled accordingly. And if the object is of the type of things made to be lent or rented, even according to the first opinion he is believed in such a case (Urim VeTumim), and there is no difference whether he said "I rented it to him" or "I lent it to him."

Two people who came from afar and a woman is with them and a bundle of merchandise is with them; this one says, "This is my wife, and this is my slave, and the merchandise is mine," and the second says likewise, "This is my slave, and this is my wife, and the merchandise is mine," and the woman says, "These two are my slaves and the merchandise is mine"—the merchandise shall be set aside until Elijah comes or until the matter is clarified. And if both of them gave her a get of their own volition in order to permit her to marry, she may collect the amount of her ketubah from the merchandise, and the remainder shall be set aside (Kiddushin 65b). And this is specifically when she stands by her previous words, for then she collects the ketubah regardless of the outcome; but if she retracts and says that she is the wife of one of them and claims her ketubah from the merchandise, she remains bare from here and from there, since she admits that she has no claim except from the ketubah, and how can she receive from the merchandise when we do not know if it belongs to her husband or not (Ritva). And why do we not judge here with the law of division as in "two who are holding a garment," or "whoever is stronger prevails" as in siman 139 when both are not holding the object? Because here there is certainly one liar, and also the division cannot be the truth, since each one claims regarding the other "he is my slave" and regarding her "she is my wife," and "what a slave acquires, his master acquires" and "what a woman acquires, her husband acquires." Therefore, we judge in this case as with a "third maneh" which will be explained in siman 300, and as I wrote in section 4 (it appears to me).

Two are holding a tallit, this one says "it is all mine" and this one says "it is all mine, but you have a lien upon it for such and such an amount," this one collects the sum that he admitted to him from the lien in any case, as in a ketubah as has been explained (Urim VeTummim). And know that all that was written in this siman is specifically when both of them are holding the object, and even though they are not grasping the entire object, nevertheless, since they are holding its edge, they are as if they are holding it, and therefore we adjudicate in this case the law of division. But when they are not holding it at all, we adjudicate in this case the law of "whoever is stronger prevails," as will be explained.