Siman 62

A woman who conducts business within the house, and there were deeds of land purchases and slaves or promissory notes written in her name, and she says, "They are mine and not my husband's," she must bring proof through witnesses that she had specific funds after the marriage that she did not bring in to her husband as nichsei tzon barzel. Even if the deeds are in her possession, she must bring proof, and there is no difference whether she is under her husband or whether she is a widow. If she does not bring proof through witnesses, everything belongs to her husband or to his heirs. However, when she brings proof that she had funds on her own, even when they do not know specifically that these deeds are from those funds, she is believed to say that these deeds are from her funds. Even if the husband or the heir claims with certainty, "This is from my funds," she is believed. Even if they seized the deeds from her, they must return them to her. So too, if they borrowed money from her, they must pay her [Netivot HaMishpat]. The reason is that there is a presumption that whatever is found in a person's possession belongs to them; it is only regarding a woman who conducts business that we say, since she has no funds on her own, presumably the money belongs to her husband. Therefore, once it is clarified that she had her own money, we establish everything found in her possession under her presumption, and they can only administer an oath to her, as is explained in Even HaEzer siman 96 and 97.

Metaltelin that were found in her possession, if they are under her hand in a manner that she has a migo of "the matters never occurred" or "I returned them," she is believed even if she did not bring proof [Acharonim]. And even though there are those who disagree on this, nevertheless, the primary ruling is as I have written. However, regarding that which she does not have a migo according to the details that will be explained in siman 133, or if they are not under her hand, she must bring proof as with shetarot. But with shetarot, even when they are under her hand, a migo is not applicable, as their essence is not money and she must present them to collect with them. And so too when she claims regarding metaltelin, "my husband gave them to me as a gift," she is not believed unless she has a migo [Netivot HaMishpat]. And money has the same law as metaltelin.

If she was not conducting business within the house and there were documents written in her name, they are hers. And if they were written in her name and the name of her husband, they belong to both of them. And money and movable property found in her possession are hers. And if the husband claims that they are from her handiwork and they are his, and she says that they are from nichsei melog and only the fruits are his, or if he says they are from nichsei melog and the fruits are his and she says they were given to her as a gift on the condition that her husband has no right to them, it has been explained in Even HaEzer siman 85, see there.

An ordinary woman is considered one who "carries and gives" (manages affairs), for one is called "carrying and giving" only if the husband deposits money and movables in her hand [Sma], not like the one who says that it is required that she be engaged in business and specifically alone [Netivot HaMishpat]. And similarly, when she manages the household expenses, she is also called "carrying and giving" [it appears to me]. According to this, most women are called "carrying and giving":

That which we have said, that regarding a woman who conducts business she must bring proof concerning deeds that are in her name, this is specifically regarding deeds of others; however, deeds that the husband himself wrote in her name are hers [Sma]. Yet, if the deeds are in the possession of the husband, the husband can say, "I desired to reveal her money that she hid from me, therefore I wrote the deeds for her, but it was not my intention to transfer ownership to her." However, when the deeds are in her possession, he cannot say so, for if so, why did he deliver the deeds to her? [It appears to me, and see in the Shach and in the Netivot HaMishpat].

We have already explained at the end of siman 60 that in our time there is no proof from the fact that lands were recorded in the name of the woman, and even if it was confirmed in the secular courts, because many do so for various reasons they have and their intention is not to transfer ownership to them; therefore the judges must be very, very deliberate in this.

Even though regarding one who conducts business she must bring proof, this is when she is alive; but when she has died, the beit din claims on behalf of her heirs that perhaps they are hers, and therefore the heirs of the husband must bring proof that they belonged to her husband. And even when the heirs claim with certainty that they are not hers, they must bring proof. But when the husband is alive and she has died, in any case they are his, for he inherits from her. And even when her heirs claim that perhaps he gave them to her on the condition that her husband would not inherit from her, we do not pay heed to this if they did not bring proof, for this is not common [Shach]. And if they claim with certainty, the husband must swear. And see in Even HaEzer siman 86.

It has already been explained at the end of siman 56 that when the husband dies, she is believed to say that these funds and movables belong to so-and-so with a migo, as is written there. However, while the husband is alive, she is not believed even when she has a migo that she could have delivered them to so-and-so, because of the chazakah that everything found in a person's possession belongs to them, and we do not say migo against such a strong chazakah; and we fear perhaps she made a conspiracy with others to steal from her husband's property. But when he dies, she does not need this conspiracy, for she could say that they are of the nichsei melog property, and therefore she is believed with a migo. And if she died and said before her death, or they found written by her, that these funds and movables belong to so-and-so: if the husband believes her, he should act according to her instruction; and if he does not believe her, then if she was not conducting business within the house, she is believed, for they are in the chazakah of being hers, as was written in section 3, and therefore she is believed to say they belong to so-and-so. But if she was conducting business, she is not believed when he does not believe her, unless it is known that she had money that did not belong to her husband, for then automatically what is found is in her chazakah and she can say they belong to so-and-so. And similarly, when that so-and-so brings proof that they are his, we deliver them to him. And also while the husband is alive, that she is not believed, this is when she is conducting business and it is not known that she had money that did not belong to the husband [see Urim VeTummim and Netivot HaMishpat].

And so too, one of the brothers who conducts business within the house, and similarly when all the brothers conduct business, and there are found in the possession of one of them deeds drawn up in his name, or objects and movables that were not established as being his alone, and he says, "They are mine, for they fell to me from my mother's house," or "I found a lost object," or "They were given to me as a gift," it is incumbent upon him to bring proof through witnesses that it is as he says. And if he died and left orphans, the brothers must bring proof through witnesses that it belongs to all of them, even if they claim with certainty, and even if the deeds are in their possession, since the deeds were written in his name, the logic is that they are his. However, during his lifetime we say to him, "Clarify your words," for it is likely that it is within his power to clarify if the truth is with him, and therefore even when the brothers claim "perhaps," he is obligated to clarify. But his heirs do not have the ability to clarify, and therefore we maintain the presumption that they are his, and it is upon them to bring proof. Therefore, regarding movables, for which there is no proof that they are his, we maintain them in the presumption of belonging to all of them even when he died, and it is upon his heirs to bring proof. And there are those who disagree on this and hold that even regarding movables that are in the possession of his heirs, it is upon the brothers to bring proof. Therefore, the judges shall judge this according to what their eyes see. And so too, when he gave a gift and died, we maintain it in the presumption of the recipient, but when he is alive, he must bring proof. And if the recipient claims that his brothers gave it to him as a gift, he is believed when he has a migo. And regarding deeds, a migo is not effective because they are not inherently money, and he must show them in order to collect with them. And there is one who says that regarding movables, when he has a migo, one of the brothers is always believed even when he says, "Others gave it to me as a gift," and the like.

And all this is specifically regarding a matter where it is not known that it belonged to all the brothers, but regarding a matter known to have belonged to all the brothers, even his heirs are required to bring evidence through witnesses that it subsequently became their father's. And if they did not bring evidence, we maintain them in the presumptive status of all the brothers even when the matter is in their possession. And likewise, when his heirs are not in possession of the movables and documents that were written in the names of all of them, even if it was not established that it belongs to all of them, the heirs are not believed to say that they belong to their father alone, and they must specifically bring evidence through witnesses. And if not, we maintain the presumptive status of all of them.

This which has been explained, that he must bring proof while he is alive, this is specifically when all their business and all their household expenses were together; but when they were divided in their expenses, or if he had a business of his own aside from the partnership business, he is believed to say that they are his if the documents are written in his name alone. And likewise, the movable objects that are in his hand are in his possession, for perhaps he profited from his own business or saved from his expenses. Therefore, even when he says that they came to him from another matter, such as finding a lost object or that they gave him a gift, he is believed with a migo. And if the brothers claim with certainty that they are not his alone, he shall swear a shevuat hesset that they are his. And if they claim "perhaps," he is subject to a cherem hastam. And this is specifically regarding documents that are in his name alone and regarding movable objects that are in his hand, but documents that are not in his name alone and movable objects that are not in his hand, he is not believed, and even his heirs are not believed, and they must bring proof with witnesses, as I wrote in the previous section.

All that has been explained in this siman is specifically regarding a wife or brothers, but a stranger who is a member of the household with one and is appointed over his business, everything found in his own possession that does not belong to the business of the master of the house, and all deeds written in his name, are in his presumption of ownership. He is trusted even to extract them from the hand of the master of the house or his heirs if they seized them, and they are only able to obligate him a shevuat hesset when they claim with certainty that they are mine or our father's. However, if it became known that it belonged to the master of the house, or when it is known that all the objects of the master of the house were found in his hand and the deeds of the master of the house were written in his name, then if he claims they are his, he must bring proof with witnesses, and his heirs also must bring proof with witnesses. But without this, we presume everything found in his hand to be his, even if he is not wealthy and had nothing besides that of the master of the house, for perhaps it reached him from another source. And if he dies, they are given to his heirs, for it is a great presumption that everything found in a person's hand is his, only the master of the house or his heirs can adjure him with a severe oath, and they can also adjure his heirs with the oath of heirs. And a member of the household who admitted before witnesses when he began to negotiate that he has no money except for the money of the master of the house with which he negotiates, his law is like a wife and brothers [Netivot HaMishpat].

A son with his father is governed by the same law as a wife and brothers [Shach]. This applies specifically to a son who began to conduct business with his father's property while still supported at his father's table, and it is known that he possessed nothing at the time he began to conduct business with his father's property [Netivot HaMishpat], or it is public knowledge that the assets belong to his father; in such a case, he is not believed even after a period of time. This matter depends on the understanding of the dayanim according to the circumstances.