Sumchus

Bava Kama (5:1) | Yisrael Bankier | 24 days ago

The Mishnah (5:1) discusses a case where one ox gored and killed another, and dead calf was found beside it. It was known that the dead cow was pregnant, but is not clear whether the animal was gored when pregnant, or whether the calf was miscarried prior to the incident. In this case, the killing ox was a tam. The Mishnah explains, that consider that it was a tam, he would certainly need to pay for half the value of the ox that was killed. With respect to the calf, since it is unclear, he needs to pay a quarter of its value.

The Bartenura explains that this Mishnah is according to the opinion of Sumchus, who maintains that whenever there is a doubt in a monetary case, the parties share in cost. In other words, since there is a doubt whether the half damage for the calf needs to be paid, they divide that amount, and the owner of the ox that caused the damage only pays a quarter. The Chachamim however argue. They maintains that whenever there is a doubt regarding payment, then the burden of proof is placed on the party attempting to extract the funds.

The Tosfot cite the Gemara in Bava Metzia (100a) that appears to conclude that Sumchus only maintains his position if the object in question in not in the possession of either party. Consequently in this case, the ox that caused the damage, from which compensation would be collected, must be located in an open space -- a location not owned by either party. It is in that case that Sumchus maintains that the disputed property should be divided. That Chachamim however argue that the property, or in this case the ox, is considered in the possession of the mara kama -- the original owner. Consequently, as we explained above, the person whose ox died would need to prove that the calf also died in the attack to extra any compensation for it.

The Kuntus Sefeikot (1:5) attempts to understand this debate considering the Tosfot's opinion. He first tries to understand the legal force of mara kama. Why does it automatically place the burden of proof on the other party if it is not currently in his possession? He suggests that it is based on the concept of chazaka that we find in the world of issurim. Just like when there is a doubt regarding issurim we lean on the established chazaka -- its last known status before the safek was introduced -- the same appears to be true in monetary law.

If the concept of chazaka in issurim is applied in monetary law, then how do we understand the position of Sumchus? The Kuntrus Sefeikot explains that according to Sumchus he views these cases of safek as if the object in dispute is in the possession of both the parties. It is as if one party is holding one half, and the other party the other. That is why it overrides the consideration of mara kama. The Chachamim however maintain that it is not in possession of either party, therefore we fall back on mara kama. Alternatively, the Chachamim argue that the mara kama is not learnt for chazaka in issurim, but rather it equivalent to chezkat mamon -- it is considered as if it is the possession of the original owner. This would be much like any property that we know belonged to a person. If it is found in the public domain, the ownership does not change without any proof.

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