Toein Vinitan Chapter 9
Title: Ownership and Possession Disputes Regarding Movable Property and Repairs
Overview:
This chapter from Rambam’s Hilchot To’en VeNit’an (Laws of Claims and Counterclaims) addresses complex legal scenarios involving disputes over ownership of movable items (kelim), particularly when they are in the possession of craftsmans (umanim), renters, or others. It explores the credibility of claims, the role of witnesses, presumptions of ownership, and the use of oaths (shevuot) to resolve conflicts. The halachot emphasize the balance between legal evidence, common practice, and ethical presumptions.
Halacha-by-Halacha Summary (13 Halachot)
Halacha 1: No Presumption of Ownership for Craftsmans
A craftsman has no legal presumption (chazakah) over items under his care, even if they are typically lent or rented. If the owner brings witnesses that the item is his, and the craftsman claims it was sold or gifted to him, the owner is believed and the item is returned. The owner must swear a shevuat hesset.
Dispute Without Witnesses – Opinions of the Geonim: Some Geonim rule that even without witnesses, if the craftsman admits the item was once the owner’s, he is not believed to claim it was sold/gifted. But if he claims it was always his, he is believed with a shevuat hesset. If the owner brings witnesses that the item is known to be his, the craftsman is not believed. Rambam finds this ruling puzzling.
Halacha 2: Item Not Seen – Craftsman’s Claim of Purchase
If the item is not seen in the craftsman’s possession, and the owner claims he gave it for repair, while the craftsman claims it was later sold/gifted to him, the craftsman is believed with a shevuat hesset, even if the item was given with witnesses.
Visible Item and Dispute Over Payment: If the item is seen in the craftsman’s possession and the owner brings witnesses that it is his, it is returned to the owner. If there is a dispute about payment (e.g., how many repairs were agreed upon), the owner swears and pays accordingly.
Craftsman’s Claim of Purchase Without Item in Sight: If the item is not visible, the craftsman may claim it was purchased and swear to receive payment, as he has a presumption of possession.
Halacha 3: Former Craftsmans and Their Sons
A former craftsman or craftsman’s son has regular possession rights like any person and is granted chazakah over movable items.
Halacha 4: Theft from a Home – No Credibility
If someone enters another’s house and leaves with hidden items, and witnesses saw him, he is not believed to claim ownership. The owner swears and retrieves the items.
When the Homeowner Sells Items: This ruling applies when the homeowner is not known to sell his items and the items are not typically hidden. If the homeowner does sell items, the taker may swear they were purchased.
Visible Items Taken – Presumption of Purchase: If someone leaves with items openly, even if the homeowner doesn’t sell his items, he may be believed to have purchased them, unless the items are typically lent or rented.
Items Typically Lent or Rented: Even if the items are visible and the homeowner sells items, if witnesses confirm the item is typically lent/rented and known to be his, it is returned unless the taker proves it was sold/gifted.
Halacha 5: Death of Possessor – Claim by Heir
If the person holding the item dies, the item is taken from the heir without an oath, unless the heir claims to have seen the sale/gift. Then the owner swears and retrieves the item. Rambam disagrees with those who require the oath before returning it.
Halacha 6: Cutting Down a Tree – Presumption of Ownership
If someone cuts down a tree claiming it was sold to him, he is believed with a shevuat hesset, as people don’t usually cut trees they don’t own. Once cut, it is treated like movable property.
Eating Fruits from Another’s Field: If someone eats fruits from another’s field and claims permission, he is believed with a shevuat hesset, as people don’t eat from fields they don’t own. Even if the land is presumed to belong to the owner, the fruits are not. Long-term consumption strengthens the claim.
Halacha 7: Two People Holding an Item
If both claim full ownership while holding the item, each swears he owns at least half, and they split it.
Halacha 8: One Claims Full, One Claims Half:
If one claims full ownership and the other claims half, they swear accordingly and divide the item proportionally—three parts to one, one part to the other.
Halacha 9: Two People Holding a Garment – Partial Possession
When two people are both physically holding a garment and each claims full ownership:
- Each person is awarded the portion he is physically holding.
- The remainder is divided equally after both take oaths (shevuot).
- Based on the principle of gilgul shevu’ah (extension of oaths), each party can require the other to swear that he is entitled to everything he receives.
Halacha 10: Holding Opposite Ends – Equal Division
If each person is holding the strings on opposite sides of the garment:
- The entire garment is divided equally between them.
- This division refers to the value of the garment, not physically cutting or damaging it.
- The division occurs after both parties swear.
Halacha 11: One Person Holding Entirely – Presumption of Ownership
If one person is holding the entire item, and the other is merely struggling or grasping it:
- The item is presumed to belong to the person holding it entirely.
- This presumption grants him ownership unless the other party brings proof.
Halacha 11: Snatching in Front of Witnesses
If one snatches the item from the other in front of witnesses and the other remains silent, the snatcher is presumed to be the owner. If the other protests immediately, they divide it.
Halacha 12: Return After Leaving
If both were holding the item and then one ends up with it after they left and returned, and they dispute how it came to be in his possession, the one holding it must bring proof or swear to his claim.
Takeaways:
- Presumption of Ownership: Possession alone does not always confer ownership, especially for craftsmans.
- Witnesses Matter: Testimony can override possession claims.
- Shevuat Hesset: A rabbinic oath used to resolve disputes when full evidence is lacking.
- Common Practice: Halacha considers societal norms (e.g., whether items are typically sold, lent, or hidden).
- Ethical Presumptions: People are presumed not to steal or lie in certain contexts (e.g., eating fruits, cutting trees).
Helpful Table: Credibility in Disputes
| Scenario | Who is Believed? | Required Action |
| Craftsman has item, owner brings witnesses | Owner | Item returned, owner swears |
| Craftsman claims sale/gift, no witnesses | Owner | Item returned, owner swears |
| Craftsman claims item always his | Craftsman | Craftsman swears |
| Item not visible, craftsman claims sale | Craftsman | Craftsman swears |
| Person leaves house with hidden item | Owner | Item returned, owner swears |
| Person leaves with visible item | Depends on norms | May be believed with oath |
| Item typically lent/rented | Owner | Item returned unless proof of sale |
| Tree cut down claiming sale | Cutter | Cutter swears |
| Fruits eaten from field | Eater | Eater swears |
| Situation | Outcome |
| Two people hold item; both claim full ownership | Each swears he owns at least half; item split equally |
| One claims full, one claims half | Both swear; divide item—three parts to one, one part to other |
| Two holding garment; each claims full ownership | Each gets portion held; remainder split after oaths (gilgul shevu’ah applies) |
| Each holds strings on opposite sides | Garment divided equally in value after oaths |
| One holds entire item; other grasps/struggles | Presumed owner is person holding item; unless proof brought |
| One snatches from other in front of witnesses | If silent, snatcher presumed owner; if protests, divide item |
| Both held item, one ends up with it after leaving and returning | Holder must bring proof or swear to claim |
