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Part One, Introduction to Bava Metzia:
What is particularly fascinating is how much of “secular” law today is based upon the principles in these tractates. With all due respect to “common law,” the legal principles — and the underlying rationale of our Sages — long ago established the building blocks of the legal system with which we are familiar. (Consider, if you will, how many of these concepts are applicable to modern day legal disputes.)
With that in mind, here are three concepts which will cut across a number of the specific discussion areas:
* Possession: Many of us are familiar with the adage that “possession is 9/10th of the law.” While the 9/10th formula is not a Mishanic concept, the general rule in monetary cases in Torah law is the “burden of the proof is on the one who wants to take property from his/her fellow.” That is, if Reuven is seeking an item of property from Shimon, the burden is on Reuven to prove the validity of his claim. The muchzak — the person holding the property — does not have to prove his/her right to keep it.. (Spoiler alert: we will encounter a few cases in which the Tannaim found it impossible to decide the claim and the property was divided between the parties, but this was/is not the norm.)
* Kinyan: According to Torah law, a change in ownership must happen through a legally recognized act known as a “kinyan.” Kinyan is performed by the person acquiring the item, of course with the consent of the person transferring it to him/her. As we will see, different types of property are subject to different kinds of kinyanim.
* Rules of Evidence/Oaths: As true in many other areas of Torah law, monetary obligations can established only on the basis of two valid witnesses. However, in some cases, the testimony of even a single witness can put the onus on the person being sued to swear that he/she doesn’t owe the money (if she/he fails to swear, the claim must be paid). There will be other instances as well in which a person must swear to avoid having to pay a monetary obligation.
With these ideas in mind, let’s dig in…
Part Two, Perek 1:
The first Chapter deals with disputes that relate to finding lost objects.
1: In this famous Mishnah, two people come to the court holding the edges of a garment and each claiming ownership of same. The dispute could relate to who found the lost item first or to whom the item was first sold. (Note: as we saw in our discussion of the general concepts, since they both are holding on to the item, the burden of proof is on both of them.) The Mishnah discussing the requirements of swearing incumbent on each of the respective parties.
2. A similar discussion relates to two people with competing claims about a lost animal. The Mishnah also discusses a scenario in which neither party is required to give an oath and they equally share the found animal.
3. This Mishnah discusses a different dispute regarding the acquisition of a lost item…that is, did the person who picked up the item mean to acquire it for him/herself or for someone else?
4. We now turn to the means of acquisition (i.e., a Kinyan), including the act of falling on an object, holding on to a found object, and the lost item entering his/her property.
5. This Mishnah discusses the ownership rights with respect to an item found by a member of one’s household.
6. The rest of the first Chapter deals with a person who finds a lost document, and whether in fact there is an obligation to return such document. These documents include loan documents (whereby incorrectly returning the document to the lender could unfairly prejudice a borrower who already paid off the loan OR incorrectly returning the document to the borrower could unfairly prejudice a lender who was holding the document as security for the loan). Other documents discussed include a Get (divorce document), a deathbed will, documentation of a gift or payment receipts; as with the loan document, returning the document to the “wrong party” could potentially, albeit unintentionally, damage one of the parties.
A final thought…As you consider these cases (and, perhaps, their modern applications), think about the competing considerations underlying the Mishnahs…among others — and please add to the list as you read on — the power of compelling an oath and our reticence to require someone to give an oath; the desire to avoid individual and communal conflict; basic concepts of property law; and the inadvertent harm to one of the parties of “getting it wrong”.
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