Yachloku: They Should Divide
By: Rav Mordechai Greenberg
Excerpts from the opening shiur, Elul 5759
Opening Remarks for Zman Elul
Masechet Bava Metzia opens with a discussion of disputed property. The first mishna deals with the case of "shnayim ochazin betalit," where two people hold on to a garment and each claims sole ownership of it. This mishna rules "yachloku," they should divide the garment. The gemara (3a) contrasts this case with a later mishna (37a), in which two people deposit money with a third party, one of them 100 zuz and the other 200, and later dispute who deposited the extra 100 zuz. That mishna rules "yehai munach ad sheyavo Eliyahu," it should remain in custody until Eliyahu comes and resolves all doubts.
The gemara asks, how come our mishna rules "yachloku," while that mishna rules "yehai munach?" It answers that the extra 100 zuz clearly belongs to only one of them, whereas in our mishna the garment might belong to both of them, for example, if they picked it up together. As Tosfot (2a s.v. veyachloku) phrases it, here "hachaluka yechola lihyot emet," the division can be true, and so we divide it, while there it is not possible. [Tosfot explains that it is unlikely that the person granted half of the extra money to his counterpart while in the custody of the third party.]
Yet a third ruling about disputed property is found in Bava Batra (34a), where two people dispute ownership of a boat. That gemara rules "kol de'alim gavar," whoever is stronger should prevail. I.e., beit din does not get involved, but allows the two parties to "fight it out." Tosfot (ibid.) contrasts that case with our mishna, and asks why we don't rule "yachloku" there (since the boat also might belong to both)? He answers that our case is different because both parties are "muchzakim," holding on to the garment. Therefore, it is considered as if "anan sahadei" -- we are certain -- that each has a half, since we assume that whatever a person is holding belongs to him, and therefore they divide it. Neither party, though, is holding the boat, and therefore we do not rule "yachloku."
Tosfot is bothered by our gemara's question, however, if this distinction is true. How could the gemara have even compared our case to that of money which is deposited, since there the litigants are not holding the money? He explains, therefore, that the third party holds the money on behalf of BOTH depositors, so that it is as if they are both holding on to it. That is why the gemara was able to compare the cases, and had to create a new distinction whether the division can be true.
In summary, the gemara mentions three ways to resolve a monetary dispute. Tosfot formulates the criteria as follows: 1a) If the two parties are both "muchzakim" (holding the item), and the division might be true (e.g., our mishna) -- they divide it. 1b) If the parties are "muchzakim" (or someone is "muchzak" on their behalf), but the division cannot be true (e.g., the extra 100 zuz) -- we let the object remain until Eliyahu comes. 2) If neither party is "muchzak" (e.g., the boat) -- the rule is "kol de'alim gavar."
The Ri Migash in Bava Batra (34b s.v. kol), however, summarizes the criteria differently. He writes as follows: 1) If the two parties are both "muchzakim," as in our mishna, or if the object is placed in a "chatzer hashutafin" (joint courtyard) -- they divide it under oath. [He does NOT distinguish, however, whether the division can be true or not.] 2a) If the object is in neither one's possession, if it is in the hands of a third party (e.g., the extra 100 zuz) -- it should remain in custody until Eliyahu comes. 2b) If the object is in a public domain, such as in the case of the boat, the rule is "kol de'alim gavar" [provided that the issue may yet be resolved, as explained in Bava Batra 35a].
The Ri Migash thus assumes that the case of the extra 100 zuz is not considered as if they are both in possession, against Tosfot. However, Tosfot's position is forced by the gemara itself which compares that case to our mishna, so how can the Ri Migash disagree? According to him, the gemara's question doesn't even begin, since there is already a clear distinction between the two cases! In our Mishna, both are holding on, whereas in the case of the extra 100 zuz they are not, so why didn't the gemara answer this way?! The Ramban and Shita Mekubetzes raise this difficulty, and many achronim suggest various answers. We would like to provide an approach, based on the Even Ha'azel (To`en Venit`an 9:7), by R. Isser Zalman Meltzer.
The dispute between Tosfot and the Ri Migash can be explained based on the following "chakira" (differential analysis). When the two parties are both "muchzakim," why is the rule "yachloku" and not "kol de'alim gavar?" We can explain in two ways:
One possibility is that beit din prefers to not to get involved in disputes so long as it is possible for the litigants to "settle" the issue themselves, i.e., through "kol de'alim gavar." However, this is only possible if nobody is holding on to the object, so that we have no basis to assume it belongs to one or the other. If both parties are "muchzakim," though, whoever will grab the object from the other borders on stealing. As such, beit din cannot allow "kol de'alim gavar," but must get involved and rule "yachloku." This seems to be the position of the Rosh in the very beginning of Bava Metzia (siman #1). He writes:
Since both of them come before us holding on to the garment itself, we must rule "yachloku" for them, because anything that we see in a person's hand we consider as his ... Therefore, we cannot rule here "kol de'alim gavar" as we say ... regarding the boat ...
That case is different, though, since neither is holding the object that they are litigating about. Beit din is not obligated to restrain one who comes to take something that we do not know whose it is and he claims that it is his. Therefore, it is not fitting to rule "yachloku," lest we cause one of them to lose unjustly. The Rosh was clearly troubled by Tosfot's question, how our case differs from that of the boat. He answers that only where there is no known ownership can beit din refuse to get involved and rule "kol de'alim gavar," not where the litigants are holding on. From his language it appears that "shenaihem muchzakim" is not a prerequisite for "yachloku," but rather is serves to eliminate the possibility of "kol de'alim gavar." Beit din prefers not to involve itself in the dispute when possible, but when both are holding on and "kol de'alim gavar" is not a viable option -- we must then rule "yachloku." As such, in a theoretical case where they are not "muchzakim," yet we cannot say "kol de'alim gavar," we would still say "yachloku."
The second possibility is that "shenaihem muchzakim" is a necessary condition for "yachloku," because only then "anan sahadei" that they both have a share. Otherwise, even if "kol de'alim gavar" were not a viable option, we should still opt to rule "yehai munach." This appears to be the position of Tosfot, and that is why they were forced to interpret the case of the extra 100 zuz as one of "muchzakim" in order to explain the gamara's comparison.
This dispute between the Rosh and Tosfot is reflected in a dispute between the Rambam and the Ri Migash. The Rambam (Hil. To`en Venit`an 9:7), when quoting our mishna, adds the case of two people sitting beside a pile of wheat found in a "simta" (alley) or in a joint courtyard. Here, too, if they dispute ownership of the pile they divide it under oath. Now, while the case of a pile found in a joint courtyard is taken from the Ri Migash (who was the Rambam's rebbe), the case of a "simta" is not mentioned by the Ri Migash, but is the Rambam's novel "chidush." Indeed, we often equate a simta with a joint courtyard (e.g., regarding kinyan meshicha), as the alley does not belong to anybody specific, yet it is not a public thoroughfare, and so we consider it as "belonging" to whomever is using it at the moment. Yet, there is room to distinguish between a simta and a joint courtyard, based on the Shach (C.M. end of siman #91). In a joint courtyard, both parties are considered "muchzakim," whereas in a simta only the true, previous owner is considered "muchzak."
Now, if the Rambam considered "shenaihem muchzakim" as critical for "yachloku," how could he rule "yachloku" even in a simta, since only one party is considered "muchzak" there! This indicates that the Rambam does not see "shenaihem muchzakim" as critical for "yachloku," but rather once we cannot allow "kol de'alim gavar," we say "yachloku" (like the Rosh). The Ri Migash, who omitted the case of simta, would seem to be like Tosfot that "shenaihem muchzakim" is considered a prerequisite for "yachloku," and therefore he only mentioned the case of a joint courtyard. [Presumably, the Ri Migash would not rule "yachloku" in the case of a simta, but rather "kol de'alim gavar."]
Nonetheless, the Ri Migash differs with Tosfot regarding money deposited with a third party. Tosfot considers the third party as holding the money on behalf of both depositors. Hence, that case is also considered "shenaihem muchzakim," and we should have said "yachloku" were it not for the fact that the division cannot be true. The Ri Migash, however, maintains that the third party is holding the extra 100 zuz only on behalf of its true owner. Hence, we certainly do not say "yachloku," since they are not "shenaihem muchzakim." But then why doesn't the gemara itself provide this answer?
R. Isser Zalman Meltzer answers as follows. We do not always say that whenever two people are holding something we are sure that it belongs to both. For example, in the case of the extra 100 zuz, even if the two litigants were to go and grab the extra money, we could not say that we know it belongs to both, because that cannot be true! It clearly belongs to one or the other. In other words, the idea of "anan sahadei" that both have half is only after we establish that the division can be true. Thus, this requirement of "shenaihem muchzakim" is dependent on in the gemara's stipulation that the division can be true.
Initially, though, the one who raised the question did not know that we only say "yachloku" when "anan sahadei." He assumed that we say "yachloku" whenever we cannot allow "kol de'alim gavar," and therefore asked that we should say "yachloku" also in the case of the extra 100 zuz, even though they are not both "muchzakim." To this we answer that we can only say "yachloku" when the division can be true, and hence there is room to consider them both "muchzakim." After introducing this idea, though, the Ri Migash would say that "shenaihem muchzakim" becomes a prerequisite for "yachloku." As such, we would not rule to divide the extra 100 zuz regardless, since they are not holding the money at all, and the third party is only holding it on behalf of the true owner.
Opening Remarks for Zman ElulIn parshat Re'eh and parshat Shoftim the idea of "hamakom asher yivchar Hashem -- the place that Hashem will choose," is repeated nine times in various contexts. This underscores the point that even for something intangible -- achieving closeness with G-d -- there is a need for a special place. After the destruction of the Temple, this role is filled by the Batei Midrash and Batei Knesset, as the gemara says, "Where does the Divine presence dwell in Bavel? In the Batei Knesset and Batei Midrash." We need a specific place to encounter G-d, whether the Mikdash itself or the Mikdash Me`at of the Beit Midrash. There we are closer to G-d than elsewhere.
This is the idea of a yeshiva. A yeshiva is not just a place to study, but rather it is a Mikdash Me`at, a place where the Divine Presence dwells, a substitute for the Temple. For this reason, throughout the ages, the gedolim did not suffice with learning partners alone, but strove to establish yeshivot. Traditionally, there were "Yarchei Kallah" (public lecture forums) during Adar and Elul. Adar, because of the reacceptance of the Torah during the times of Mordechai and Esther -- "kiymu vekiblu" (Esther 9:27). Elul, because this is when Moshe ascended Har Sinai the final time to receive the second set of tablets, the basis of the Oral Torah.
The Yeshiva is the ideal place for one to develop himself as part of a cohesive group. In the formative stages of the Jewish educational system, R. Yehoshua b. Gamla centralized the schools in Yerushalayim, based on the verse, "Ki mitzion teitzei Torah -- For from Zion the Torah will come forth, and the word of Hashem from Yerushalayim." (Yeshayahu 2:3) Tosfot (Bava Batra 21a) explains that being in an environment in which everyone is involved in the service of G-d has a profound impact upon the person. This is why it says regarding maaser sheini, which must be brought to Yerushalayim, "So that you will learn to fear Hashem, your G-d, all the days." (Devarim 14:23)
The gemara (Chagiga 5b) relates the story of Rav Idi who would travel three months each direction to attend the yeshiva, and was called a "bar bei rav dechad yoma" (one-day Rabbinical student), since by the time he arrived he could stay only one day before having to turn around and head home. Yet, he understood that it was worthwhile to travel, since sometimes one can accomplish in a single day in Yeshiva more that in months of study as a lone individual!
Shiur ID: 4016