Lesson # 100 - Presumption of ownership of personal property This lesson is the first of two discussing the laws dealing with presumptions regarding ownership of property. Rabbi Yosef Karo. in Shulhan Aroch, Hoshen haMishpat, devotes chapters 133 through 139 to presumptions regarding ownership of inanimate items of personal property and chapters 140 through 152 regarding presumptions regarding real property. The presumptions regarding real property and personal property begin with a fundamental difference. Generally the person possessed of personal property is presumed to be the owner. In the case of real property, the last known owner is presumed to continue to be the owner, even if he is not now possessed of the real property. In discussing disputes between the person possessing the item of personal property and the person who does not hold it but claims that it is his, the holder shall be designated Reuven and the claimant shall be designated Shimon. The personal property over which they are disputing will be called "the item." There may or may not be witnesses of the transfer from Shimon of his personal property to Reuven. If there are witnesses present. they may be able to testify as to whether the item is loaned, leased, or sold to Reuven or given to him as a gift. Whether or not there are witnesses present when Reuven receives the item, there may be witnesses who can testify that he now holds it. What if the item is the type that it was unlikely that Shimon would have sold to Reuven? What if Reuven pleads that he received the item from Yehudah and not from Shimon? These are some of the topics discussed in these lesson. The answers to these questions may effect the presumption in favor of Reuven. Every item of personal property in the hands of a person is presumed to be owned by him. This presumption applies to minors as well as to adults. Reuven holds an item that Shimon claims is his, but Shimon has no witnesses to prove that he gave the item to Reuven to hold as a bailee or borrower. The presumption that Reuven, who is possessed of the item, is the owner holds true even if Shimon, who claims that the item is his, produces witnesses to testify that it is his. Shimon admits that Reuven is possessed of the item or there are witnesses who testify that Reuven is possessed of the item. If Shimon pleads that he deposited the item with Reuven to act as a bailee, or that he loaned the item to Reuven, Reuven is believed when he pleads that he purchased the item from Shimon or that Shimon gave him the item as a gift. Reuven takes a hesseth oath and wins the case. That which has been said - that Reuven is believed when he says that he purchased the item from Shimon - does not apply if the following three criteria are met, in which event Shimon will win the case without even having to take an oath or to bring witnesses that the item was originally his: (1) There are witnesses that the item was Shimon's; (2) the item is of the type that a person will not ordinarily sell but would lease or lend, and Shimon pleads that he had loaned the item or leased the item to Reuven. (If Shimon claims that the item was stolen from him by Reuven, then the case will not be won by him under these three criteria, unless Reuven has a reputation as being a thief); and (3) there are witnesses that Reuven is currently holding the item. If Reuven dies, Shimon can win the case, without having to take an oath, against the heirs of Reuven if these three criteria are met. If any of these three criteria are lacking, Reuven will win the case upon his taking the hesseth oath as above stated. If Reuven admits that the item is owned by Shimon, but that Reuven is holding the item as collateral security for a loan that Reuven gave to Shimon, then Shimon can obtain the item by paying to Reuven the value of the item, if Reuven takes an oath while holding a sacred object. However, if Reuven pleads that he is holding the item for money due to him from Shimon for a business transaction, then Beth Din should investigate to see if there is actually some sum due and if so, the actual amount of money due to Reuven. If there is an amount due to him from Shimon, he can collect that amount up to the value of the item and must then return the item to Shimon. Shimon produces witnesses that he delivered the item to Reuven. Either there are no witnesses that Reuven is currently possessed of the item or there are witnesses that Reuven is currently possessed of the item. These two possibilities will now be explored, bearing in mind that there are witnesses who saw Shimon deliver the item to Reuven. If there are no witnesses that Reuven is presently in possession of the item, Reuven, upon taking a hesseth oath, is believed when he pleads that he returned the item to Shimon. He is also believed if he pleads that he purchased the item from Shimon, since there are no witnesses that he is now possessed of the item. These pleas are not available to Reuven if at the time that Shimon delivered the item to Reuven, Shimon, in the presence of the witnesses to delivery, instructed Reuven not to return the item to Shimon unless there were witnesses present. In this last instance Shimon may also have named the witnesses who have to be present when Reuven returns the item to Shimon. An exception occurs when Reuven pleads that he complied with the instructions of Shimon and returned the item to him in the presence of Naftali and Issachar, but that they have died or have gone overseas. In this latter instance, Reuven must take a hesseth oath to win the case. But if there are witnesses that he is currently possessed of the item, he cannot plead that he purchased the item or that he is holding it as collateral, since Shimon has produced proof that he delivered the item to Reuven to hold as a bailment. However, if the witnesses who witnessed the delivery from Shimon to Reuven state that they do not know the circumstances of the delivery, then Reuven may plead that the item was delivered as a gift or in furtherance of a sale of the item from Shimon to Reuven. Shimon pleads that the item that Reuven is holding is Shimon's, which Shimon gave to Levi to hold with instructions that Levi was not to return the item to Shimon unless there were witnesses present, and this was not complied with. Shimon further pleads that apparently Levi delivered the item to Reuven without permission. Reuven pleads that Shimon sold the item to him. Reuven, if he takes an oath, will win the case. It was stated above that if three criteria were met, then Shimon will win the case even if Reuven pleads that he bought the item from Shimon. But there is an exception to that law. Reuven pleads that he admits that the item once belonged to Shimon, and it is the type ordinarily leased or loaned rather than sold, and it is conceded that Reuven currently holds the item. There is no proof how the item came into the possession of Reuven. Reuven pleads that he purchased the item from Yehudah or received it as a gift from Yehudah, rather than from Shimon. Shimon concedes that he is not the one who delivered the item to Reuven. Reuven will win the case, since it is not unlikely that a person will sell his vessels although they are not made primarily for sale. The subject matter of this lesson is more fully discussed in Volume IV Chapters 133 of “A Restatement of Rabbinic Civil Law” by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The Sho'f'tim Homepage]
|
