I should have clarified yesterday’s post a bit more. What is chezkas marei kammah? In the world of issur v’heter, we have a principle of chazakah that tells us that unless we know otherwise, we assume status quo - if a mikevh was once kosher, I can dunk in it assuming it is still kosher unless I measure it and discover otherwise. In the world of dinei mamonos we have a rule called muchzak which tells us if I have possession of an article and you want to take it from me, possession is 9/10 of the law and you need proof (the classic rule of ‘hamotzi me’chaveiro alav hara’aya’, though there may be more to chezkas mamom than that). What if I was once had possession of some article, but right now it is not in my hands or under my control – how does the halacha treat a challenge to my ownership? What if a cow which had been mine is found wandering down the road somewhere and you claim it is really your cow? On the one hand, I am not the muchzak because the cow is not directly in my possession. On the other hand, I did in the past have ownership, and you have no demonstrable proof that the status quo ever changed. This is the issue of chezkas marei kammah – the chazakah of original ownership. The Kuntres HaSefeikos (1:5) offers two possible approaches to understand such a claim. One approach is the dinei mamonos rule of muchzak – even though not directly under my control at this moment, the fact that an article had once been mine is sufficient to make me the muchzak unless you can prove otherwise. The other approach is the classic rule of chazakah – even though chazakah is normally an issur v’heter law (see Chulin 9), it implies that we can extend any status quo, including ownership. One approach derives it authority from the force of original ownership, the other derives its authority from the right of possession being 9/10 of the law. Tosfos (Baba Basra 32b) writes that in a case where two sets of witnesses contradict each other creating a safeik, we rely on chezkas marei kammah. But where we have a halachic uncertainty/safeik as to how to resolve an issue, we do not rely on chezkas marei kammah. What is the difference? R’ Akiva Eiger explains that Tosfos’s distinction depends on how one understands chezkas marei kammah. If chezkas marei kammah is a function of extending the status quo of original ownership, the classic rule of chazakah, then it cannot help in this scenario –the status of original ownership is not under debate, rather, there is a halachic issue we need to resolve. However, if chezkas marei kammah is a form of chezkas mammon, possession is equivalent to ownership unless we can definitively state otherwise, even a safeik in halacha is not sufficient to definitively transfer ownership.
Against the evidence of Tosfos (proving the point of the Meshech Chochma and R’ Akiva Eiger that chezkas marei kammah is derived from the classic rule of chazakah) there are other sources that indicate chezkas m”k is really a type of chezkas mammon. The rule with respect to classic forms of chazakah is ‘ruba v’chazakah, ruba adif’ – a rov constitutes better proof than a chazakah. Yet, a rov is not sufficient proof to remove money from someone’s possession as muchzak (‘ain holchin b’mamon achar harov’). R’ Elchanan Wasserman (Koveitz Shiurim #7) cites the Rosh who holds that a rov is weaker than chezkas marei kammah. If chezkas m”k is the same as the rule of muchzak, possession, then it is stronger than the proof od rove, but if chezkas m”k is a form of classical chazakah, why would a rov not be a stronger form of proof?