Wednesday, August 30, 2006

chezkas marei kammah (II)

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?

4 comments:

  1. jeffrey smith9:48 PM

    Rov is probability: if Ploni owns nine tenths of the wheat, then it is probable that the sheaf of wheat before us is part of that nine tenths.
    Chezkas m"k is certainty: we know that this particular sheaf of wheat was owned at one point by Ploni, and we need actual evidence to show that this sheaf has passed out of Ploni's ownership at some point. But it is not merely 90% probable that Ploni owned that sheaf of wheat: it is 100% probable.
    So as a matter of formal logic, at least, chezkas m"k is a form of chezkas mammom.

    OT: Thank you for your good wishes re Ernesto. We were all keyed up to get another Wilma, or at least Katrina (which came through here as a lurching minor hurricane before it got to the Gulf and became the monster that drowned New Orleans) and all we got was something less impressive than one of the normal thunderstorms that appear most summer afternoons. In fact, going by the Weather Channel, you may get worse weather out of it than we did!

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  2. Why is chezkas m"k a certainty? Just because something used to be your possession, who says it is now?
    It has finally stopped raining here in NY after 4 days, but is still cloudy and more rain on the way to spoil the weekend. Glad you are oK!

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  3. jeffrey smith1:32 PM

    In chezkas m"k we are dealing with a certainty--at one point it was owned by Ploni. The doubt pertains as to whether that ownership still exists.
    In rov, we are dealing with a probability--it is probable that Ploni owns it, but there is a possibility that Ploni does not own it, and if that is true, then Ploni never owned it. We can not therefore be sure that Ploni owned it in the past, as we can with chezkas m"k. Hence chezkas m"k involves more certainty than rov.

    Suppose Reuven says "I gave most of my wheat to Levi", and that one then comes on a pile of wheat which one knows from the tags was once part of Reuven's stock of wheat. Does one treat the pile of wheat as belonging to Reuven (on the possibility that this is the part of his wheat that he did not give to Levi), thereby in effect deciding according chezkas m"k, or does one treat it as belonging to Levi, in effect deciding according to rov? I don't know the answer, but I suspect the answer would indicate which is stronger proof, rov or chezkas m"k.

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  4. Anonymous10:48 PM

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