THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 101 • Two persons are holding one object

This lesson continues the topic of who is presumed to be the holder of an item of personal property.

This lesson states the laws of one of the most famous chapters in the Talmud, a chapter that is often the first or one of the earliest chapters studied by children or adults upon their wading into the sea of the Talmud. Two persons are holding a tallit and are disputing ownership, of the tallit. The laws of this lesson apply to any vessel or, for that matter, even to animate objects.

Each one alleges that he found the object first, the object that is found having been abandoned or found under circumstances in which there is no necessity for looking for its previous owner.

In halachah. an object is not found by merely spying it first. The finder must pick it up or take possession in the same manner as he would have had he purchased the item. In the case of most inanimate objects, the method of obtaining ownership is by picking it up. In the case of animals, the most common way is to make the animal move forward, by riding it or by leading it. There are times when a person may acquire an object by his being present in a semi-secluded place, such as an alley. Or if he is within four cubits (about seven feet) from the object to be acquired, and the object is placed there for the purpose of transferring title, he acquires the object. In all of the laws of this lesson, it is assumed that the question of valid acquisition is not raised, just who acquired it first.

The halachahs in this lesson assume a Beth Din system that is available to litigants at a moment's notice. Today this is not generally the case. Instead of both parties continuing to hold on to the object, a film can be made of their respective positions and the film or video can be shown to Beth Din so that the parties may reenact their respective positions when Beth Din opens for hearing disputes. Beth Din has before it the two persons, Reuven and Shimon, each holding one end of the object and each claiming that he picked it up first. Beth Din must make a decision without having any testimony from witnesses as to who picked it up first, and without any admission from either party, or both parties, that the other party picked up the object simultaneously with him. In either of these two events, the laws are different than in the situation where each claims he exclusively picked it up first. This lesson deals with the oaths that have to be taken by the parties.

Reuven and Shimon appear in Beth Din holding a vessel. In the case of an animal, either both are riding on it or one is riding on it and one is leading it.
Or Reuven and Shimon were sitting beside a pile of wheat that was piled in an alley, or in a courtyard belonging to the two of them, and each claims that the wheat is all his. Each party pleads that the entire object is his. Each takes an oath while holding a sacred object, swearing that he owns not less than half of theobject. Upon both Reuven and Shimon taking such an oath, they will equally divide the object that they are holding.

Reuven may say to Shimon, "Swear that you found it first, and take the entire object." In that event, Shimon may swear and take the entire object, or Shimon may refuse to swear and the object will be divided between Reuven and Shimon without the necessity of either taking an oath.

Reuven and Shimon owned houses on opposite sides of the street and there was a roof extending from the top of Reuven's house over the street, and the second end of the roof rested on Shimon's house. Both Reuven and Shimon each claim that the entire roof is his. The law is the same as if both of them are holding an object.

An object has been deposited by Reuven and Shimon with an escrowee. The escrowee does not know who owns how much of the object. The oaths are the same as if they were both holding an object, since the escrowee is deemed to be the extension of their own hands.

Shimon pleads that he exclusively found the object. Reuven pleads that he and Shimon both simultaneously found the object. Shimon swears that he owns not less than three-quarters of the object, and Reuven swears that he owns not less than one-quarter of the object. Shimon obtains three-quarters of the object and Reuven obtains one-quarter ofthe object. If the object had lent itself to division, then before they took the oaths, the object would be divided in half and Shimon would have been given that half, since Reuven admits that Shimon owns half of the object. Then Reuven and Shimon both swear that they own not less of the remaining half, and each takes one-half of the remaining half.

The law that they divide the vessel equally applies if both are holding the very ends of the vessel, as, for example, each holds the opposite hem of a garment. However, if Reuven holds more of the vessel than Shimon, Reuven takes so much of the vessel as is within his grasp and Shimon takes so much of the vessel as is within his grasp, and the balance is divided as herein above set forth. The division takes place so that each gets the portion of the vessel closest to him. Thus if they are dividing cloth and there is gold thread in the side closest to Reuven, he cannot state that he wants the cloth divided in the width from him to Shimon sothat he will get all the gold threads. Rather the cloth will be divided in the length so that Reuven and Shimon will equally share the gold threads.

When the law speaks of dividing the vessel, it is to be taken literally only if the vessel can be divided without causing loss or damage to the vessel. Otherwise, the vessel is sold and the proceeds of the sale are divided. Or, if the parties agree, Reuven can give Shimon the value of Shimon's share of the vessel and then Reuven will keep the vessel.

If the vessel was in the possession of Reuven and then Shimon grappled with him, endeavoring to take hold of the vessel, it is awarded to Reuven because he was holding the entire vessel by himself.

If both of them were holding the vessel and Reuven pulled it away from the grasp of Shimon in the presence of Beth Din or of witnesses, and Shimon remained silent. Reuven may keep the vessel although Shimon thereafter protested. If thereafter Shimon pulled the vessel away from Reuven, it is divided between Reuven and Shimon, even if Reuven protested the seizure.
Reuven and Shimon came before Beth Din both holding the vessel and Beth Din told them to divide the money from the vessel. They left the Beth Din and then returned, and the vessel was in the possession of Reuven.

Reuven now pleads that Shimon had admitted that the vessel really belonged to Reuven. Shimon pleads that he sold the vessel to Reuven, who has still not paid for it, or that Reuven overpowered him and grabbed the vessel. Shimon has the burden of proof to prove what he pleaded, and if he does not produce proof, then Reuven can take a hesseth oath and keep the vessel. There is also an opinion that if Shimon pleads that Reuven seized the vessel from him, then the vessel is divided as Beth Din originally proposed.

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.138 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

Kol HaKavod to ace Torah Tidbits columnist Rabbi Emanuel Quint on passing the 100 lesson mark. May you continue teaching Torah through these pages, via your many shiurim and other writings, for many many years to come.