Friday, July 07, 2006

sfeika d'dina and muchzak - the right of a po'el to eat produce of the ba'al habayis

After all the parsha posts, I feel like I have not done any justice to those who read this blog for lomdus. To be yotzei before Shabbos : ) let me at least start a topic with a kashe you can think about while eating the cholent and bli neder to be continued. The Yerushalmi is headed toward sugyos that discuss the right of a worker to eat the produce of the ba’al habayis while harvesting his crops and when that eating constitutes a business transaction which is kovea a chiyuv ma’aser, so agav that, a thought on the issue. The Rosh paskens in Bava Metziya that since the gemara (91b) has a safek whether a worker has a right to eat only the produce in front of him that he is harvesting or any of the ba’al habayis’s produce (‘oseh b’gefen zeh ma’hu sheyochal b’gefen achier’) we should be machmir on the safeik d’oraysa and the worker should eat only from the produce before him. However, if the worker already took other produce and ate it, he is not liable to repay the owner because we assume that in a case of tefisa, where a portion was already grabbed, repayment cannot be coerced based on a safeik. The Kuntres haSefeikos (section 4) and many achronim ask that this seems to contradict principle (see the Kuntres haSefeikos for mareh mekomos) set out by the Rosh elsewhere that tefisa never works on a sefeika d’dina. In other words, if the court is faced with a safeik in matter of fact, e.g. is the rightful owner of an item or property Reuvain or Shimon, either side can grab the disputed item because the court cannot establish with certainty who the rightful owner is. But if the safeik is a matter of law, e.g. it is clear who the current owner is, but the question is whether the halacha recognizes the validity of a claim, that is not sufficient to allow tefisa – barring proof, why should a halachically dubious claim be sufficient to allow anyone to take property from a muchzak? That’s gezel! As applied to our case, why should the dubious claim of the worker be sufficient for him to get away with taking the produce of the ba’al habayis without repayment – shouldn’t the ba’al habayis’s status of muchzak override the claim of the worker?
Coming attractions: take a look at Bava Metziya 92a