Siman 223

One who exchanges a cow for a donkey, and the owner of the cow performed meshikhah on the donkey while the cow was still in his house, and nevertheless the owner of the donkey acquired it as is written in siman 195, for in chalupin we do not require meshikhah, and in the meantime the cow gave birth and it is not known when it gave birth—for if it gave birth after his meshikhah on the donkey, the offspring belongs to the owner of the donkey, such as where he said to him "this cow," for in such a case the buyer also acquires the offspring as is written in siman 220, section 9—and the owner of the cow claimed that it gave birth before he performed meshikhah on the donkey, and the owner of the donkey claims that it gave birth afterward; and similarly, one who sells his maidservant through a kinyan of money and the seller received the funds and said to him "I am selling this maidservant to you," and in the meantime she gave birth, and the seller said she gave birth before he received the funds and the buyer says she gave birth afterward: the burden of proof is upon the buyer. And it is not only necessary to say this if the seller is holding the cow and the offspring or the maidservant and the offspring, but even if they are not in his domain, being located in a marsh or in the public domain [Shach] or in the domain of others; since the seller has the presumption of the prior owner (hazakat mara kama) and the buyer has no presumption at all, the burden of proof is upon the claimant. And even if the buyer claims "certain" (bari) and the seller claims "perhaps" (shema), we do not say that "certain" and "perhaps," "certain" is preferred, for a presumption (hazakah) is stronger than "certain." And so our sages, of blessed memory, said [at the beginning of the fifth chapter of Bava Kamma]: This is a great principle in law, that the burden of proof is upon the claimant, even if the plaintiff claims "certain" and the defendant "perhaps." And even if the defendant is not actually holding it, but rather has the presumption of the prior owner, the plaintiff is considered the one who seeks to extract, and the burden of proof is upon him; and all the more so if both claim "perhaps." However, if the buyer is holding them, having seized the cow with the offspring or the maidservant with the offspring, then the burden of proof is upon the seller, for an actual presumption is stronger than the presumption of the prior owner. And this is specifically when both claim "certain" or both claim "perhaps," and all the more so when the buyer claims "certain" and the seller "perhaps." But if the buyer claims "perhaps" and the seller "certain," his presumption is of no avail. And even though for a seller his "perhaps" is effective even with the presumption of the prior owner, and all the more so with an actual presumption, why for a buyer is it of no avail even with an actual presumption? Because they are not comparable; for the presumption of the seller, even with the presumption of the prior owner, is a powerful presumption even when he claims "perhaps," for until now he was certainly holding it. This is not the case for the "perhaps" presumption of the buyer, which is not a presumption at all to override the "certain" claim of the seller; for how can we grant him merit because of his presumption since he himself says that he does not know if he is holding it—meaning, if his presumption is a valid presumption or not? Nevertheless, there are some of the great authorities who wrote that also regarding the buyer, his presumption is effective even with "perhaps," since he is holding it in any event [see Tosafot Bava Metzia 100a, s.v. velikhzi].

The Rambam, of blessed memory, wrote in chapter 20: One who exchanges a cow for a donkey and it gave birth, and similarly one who sells his maidservant and she gave birth—this one says "she gave birth before I sold," and this one says "she gave birth after I purchased"—even if the seller says "I do not know," the purchaser must bring proof. Even if the cow is standing in a marsh and the maidservant is standing in an alleyway, they are in the possession of the seller until the purchaser brings proof. If he did not bring proof, the seller shall swear while holding a sacred object regarding the offspring of the cow, but regarding the offspring of the maidservant he only swears a heiset, for one does not swear while holding a sacred object regarding slaves. If this one says "I do not know" and that one says "I do not know," and they are not in the domain of either of them, they shall divide. Thus far his words. The Tur and the Maggid Mishneh raised a difficulty against him, for we establish that the burden of proof is on the claimant even in a case of "certain" and "perhaps," not like Sumkhos who holds that money of doubtful ownership is divided, as the Rambam himself wrote in chapter 9 of Nizkei Mamon, and even when standing in a marsh [Bava Metzia 110], and certainly in a case of "perhaps" and "perhaps." How then did he rule that they shall divide? Furthermore, does he himself not rule so at the beginning of his words? The commentators were very pressed by his words and did not reach a healing solution. In my humble opinion, it seems clear that the Rambam holds that in a case of "perhaps" and "perhaps" when standing in a marsh, all agree they shall divide (and this is the method of the Rif there to rule like Rava, and what he wrote "who is this? Sumkhos," he means that in this everyone holds like Sumkhos, as the Nimukei Yosef wrote there, and they were forced to this from the Yerushalmi there which establishes it like Sumkhos, and perforce one must say so; and examine this). Furthermore, the Rambam holds that when the purchaser claims "perhaps" it is better than when he claims "certain," for when he claims "certain" we say to him "bring proof" since it is known to you clearly so, which is not the case when he claims "perhaps," as it is not in his power to bring proof. And since the seller also claims "perhaps" and both are not truly in possession, the presumption of the original owner is not significant enough to cause the purchaser to lose certainly, since it is impossible for him to bring proof. Furthermore, the purchaser has a presumption of pregnancy for the animal, for it has just now given birth [see Tosafot ibid. s.v. Ha Mani]. Our teachers, the authors of the Shulchan Aruch, brought both opinions and did not decide between them [and according to what I wrote, that which they questioned on the Rema regarding what he added to the Mechaber is well-settled, for the truth is that according to the Rambam it is exactly the opposite; and examine this].

One says, "It gave birth in my domain," and the other is silent—the claimant acquires the offspring, for silence is equivalent to an admission. This is effective even when the silent party is the possessor, since he admitted to him [it appears to me]. And it appears to me that we only say silence is equivalent to an admission in a situation where he should have known; but without this, silence is not equivalent to an admission. For even regarding prohibitions it is so, as is written in Yoreh Deah siman 127, that when he did not have to know, his silence is not considered an admission. And although it is possible to distinguish that regarding a prohibition, since the matter concerns only himself alone, we rightly say so, whereas regarding money which concerns another, he should not have remained silent and should have responded, "Who says that it is so?" and rather, from the fact that he was silent, it is proven that he believes him that it is his—nevertheless, one should not distinguish in this. And if he was silent and in the end cried out, it is possible that the law is as in siman 138.

One who had two slaves, a large one and a small one, or two fields, a large one and a small one—the buyer says, "I bought the large one," and the seller says, "You bought the small one"—the buyer must bring proof. If he did not bring proof, the seller shall swear a shevuat hesset that he only sold him the small one. There is no Torah oath here even though he admits to a part, for one does not swear a Torah oath regarding slaves and lands. Furthermore, since he gives him the small one immediately, it is considered "heilech." Furthermore, that which he claimed, he did not admit to him, and it is like one who claims a large menorah and he admits to him a different small menorah, as I wrote in siman 88. However, if there is an admission of a part regarding movable property for which one is liable for a Torah oath, he shall swear by way of gilgul also regarding the lands and the slaves. And how can there be an admission regarding movable property in this case? For example, if he claims a large field with the sheaves in it that he bought from him, and he admits to him a small field with sheaves less than his claim. And similarly, if he claimed a large slave with his garment of twenty cubits, and he admitted to him a small one with a garment of ten cubits where the garment was not yet sewn, for if it were not so, they are like two different types. And we do not say that they are secondary to the field and the slave and he is not liable for a Torah oath for them as well; rather, he is liable for a Torah oath for them, and by way of gilgul also for the land and the slave.

If the buyer said, "I bought a large one," and the seller is silent, the buyer acquires the large one even when the seller is in possession of it, for silence is considered like an admission. And if the seller said, "I do not know," the buyer must bring proof, for we do not say "certain and uncertain, certain is preferred" to extract money, as has been written. And if he did not bring proof, the seller shall swear a shevuat hesset that he does not know and gives him the small one. And the seller can reverse the oath upon the buyer, that he should swear and take the large one, for any shevuat hesset can be reversed. And if there is a matter of a Torah oath between them, such as if he claims from him two slaves with their garments and he admitted regarding one, and regarding the second he said, "I do not know," since he is unable to swear, he must pay [Tur].