Concerning the Market Ordinance

With God’s help

Introduction

In this lecture we will deal with a general aspect that emerges from the passage, rather than one detail or another from its intricate laws of the market ordinance.

A. The market ordinance

Introduction: the market ordinance

As a matter of basic law, every object remains acquired to its owners until there is despair and a change of possession (and the Amoraim in our passage disagreed whether the order matters). Therefore, if Shimon stole an object from Reuven and sold it to Levi before Reuven despaired of recovering it (and perhaps even if he despaired only after the sale), then even after the sale the object still belongs to Reuven. Therefore, if Reuven hears that the object is in Levi’s possession, he may claim it for himself without any payment, and Levi bears the duty to inspect the objects he buys and, if necessary, to sue Shimon the thief who sold him the object, so that he will compensate him for his loss and return the money he received from him.

However, on the rabbinic plane there is the market ordinance. This is a rabbinic enactment whose aim is to make the economic market function more efficiently by giving the buyer confidence that the merchandise he bought in good faith will not be taken from him, at least not without compensation. Thus Maimonides writes in the Laws of Theft, chapter 5, law 2:

If one stole and sold an item, and the owners had not despaired, and afterward the thief was identified and witnesses testified that this object was the one he stole before them, the object returns to its owners. The owners pay the purchaser the money he paid the thief because of the market ordinance, and then the owners proceed against the thief. But if he is a notorious thief, the market ordinance was not enacted for him, and the owners give the purchaser nothing; rather, the purchaser must proceed against the thief and recover the money he paid him. (If one stole and sold an item, and the owners had not despaired, and afterward the thief was identified and witnesses testified that this object was the one he stole before them, the object returns to its owners. The owners pay the purchaser the money he paid the thief because of the market ordinance, and then the owners proceed against the thief. But if he is a notorious thief, the market ordinance was not enacted for him, and the owners give the purchaser nothing; rather, the purchaser must proceed against the thief and recover the money he paid him.)

The reason for this is not Levi’s right, even though he bought the object from Shimon in good faith, for Reuven’s right as owner certainly overrides it. The reason is a broader consideration: concern for the efficiency and reliability of the market. If we require Levi to return the object to Reuven, free commerce will be gravely harmed, since buyers will have no security regarding what they purchase.

Thus, by strict law the object belongs to the owner. Only for reasons of efficiency do the Sages override his rights and require him to pay the consideration to the buyer and litigate with the thief.

An additional provision within the market ordinance

However, in Maimonides we find yet another provision of the market ordinance, and many have already discussed it. Thus he writes in the Laws of Theft, chapter 5, law 3:

If the owners despaired of the theft, whether they despaired and only afterward the thief sold it, or whether they despaired after he sold it, the buyer acquires through despair and change of possession. He does not return the stolen object itself to its owners; rather, if he bought from a notorious thief he pays them its value, and if the seller was not a notorious thief he gives them neither the object nor money because of the market ordinance. Ra’avad comments that this text has no basis and is the result of a scribal corruption. (If the owners despaired of the theft, whether they despaired and only afterward the thief sold it, or whether they despaired after he sold it, the buyer acquires through despair and change of possession. He does not return the stolen object itself to its owners; rather, if he bought from a notorious thief he pays them its value, and if the seller was not a notorious thief he gives them neither the object nor money because of the market ordinance. Ra’avad comments that this text has no basis and is the result of a scribal corruption.)

The medieval authorities (Rishonim) and the commentators have already discussed this Maimonides at length, and there are several textual versions of his words. The accepted version is that there is a market ordinance to compensate the owners even in a case of despair and change of possession, and the buyer must pay the owners the value of the object (in the case of a notorious thief).

It is not clear why this enactment is called the ‘market ordinance’ at all. Seemingly, by strict law one should not need to pay anything, and the object belongs to the buyer (for there was despair and a change of possession), yet Maimonides rules that the owners must be compensated for this. It may be that the very rule that despair and change of possession effect acquisition is itself the market ordinance, and its rationale is concern for the buyer; only when one buys from a notorious thief is there a duty to compensate the owners (see Encyclopedia Talmudit, entry ‘Despair,’ notes 557-581). Perhaps this depends on the dispute whether despair must precede the change of possession or not. If despair must come first, then the assumption is that it came into his hand permissibly, and therefore despair acquires, as with lost property. But according to the view that a change of possession acquires even if despair comes only afterward, there is room there for rationales such as the market ordinance. Indeed, Maimonides in law 3, cited above, holds that despair is effective even after a change of possession, and therefore perhaps in his view this rule exists because of the logic of the market ordinance.

However, the Kesef Mishneh ad loc. explained the reverse: by strict law there is a duty to pay the owners even in a case of despair and change of possession, and the market ordinance consists in the fact that where the thief is not notorious there is no duty of compensation. From the way Maimonides structures the passage, introducing the rationale of the market ordinance only in the second rule, and carefully showing that this rationale belongs only to that second rule, it follows as the Kesef Mishneh says: the duty to compensate exists by strict law, and only because of the market ordinance was it waived for one who bought from a non-notorious thief.

Still, it is not clear from where this basic duty to compensate arises. Some later authorities (see, for example, Yad HaMelekh ad loc.) wrote that it stems from the law of one who causes damage, perhaps as garmi (indirect but legally actionable causation). Or perhaps this itself is the market ordinance regarding acquisition through despair and change of possession, as suggested above.

B. Between ‘Jewish law’ and ‘Torah’

Two types of enactments

At this point one should note that this enactment is unusual in a certain sense. Usually, if there is no good reason to uproot a Torah law, the Torah law remains in place. Such a reason may be a change of circumstances or some social change (an increase or decrease in theft, changed forms of social life, and the like). But here this enactment does not seem to be the result of social changes, or of any change in circumstances. Seemingly, the consideration is that this rule is simply more correct—namely, that the buyer’s right overrides the owner’s right, at least from a broader perspective. Or, in another formulation: the injury to the buyer’s right will exact a heavier price than the injury to the owner’s rights.

If so, why is this rule itself not Torah law? This can be formulated in two ways: 1. Why, after the Sages determined it, does this rule not become the basic law? Below we will see a practical implication of this question. 2. Why did the Torah itself not establish this rule from the outset, if that is the more correct state of affairs?

It should be remembered that we have no clear source that the object belongs to its owner until despair and a change of possession, just as we have no clear source that after despair and a change of possession it leaves the owner’s possession. All of these are considerations of the Sages. And yet those considerations are the result of interpretation, and on their basis the Torah law is fixed in that way; whereas here the consideration of efficiency does not become Torah law but remains a rabbinic enactment.

True, above we raised the possibility in Maimonides that even the very rule of acquisition through despair and change of possession is the result of the market ordinance. If so, the enactment really does become the basis of Torah law, or at least, once enacted, it is absorbed into the basic rule; below we will see a practical difference.

More generally, we may ask: why is there a difference between Torah law and justice and truth? If justice really determines that in such a case the object should not belong to its owner, why does the Torah determine that it does belong to him, and only rabbinically is this displaced?

Is there any point in having it written in the law book, the Shulhan Arukh, that the object belongs to the owner, even though in practice we do not apply that? If so, why did the Torah not establish both planes together as Torah-level laws: a. the owner’s principled ownership; b. his duty to compensate the buyer. As noted, the second plane is a determination of the Sages, and it is rabbinic law.

Two parts of ‘Hebrew law’

Here there are considerations of justice and efficiency as against considerations of legal truth.

There are enactments that enter the Shulhan Arukh and become part of Jewish law, and there are enactments that remain outside it (as Professor Haym Soloveitchik noted in his book Al Halakhah, Kalkalah, uDimui Atzmi, regarding laws of interest that entered the Shulhan Arukh and others that did not).

Now one might have expected that specifically enactments of the kind that are not the result of changed circumstances, but express something universal and enduring, would be inserted into the Shulhan Arukh. That indeed seems to be our case with the market ordinance. On the other hand, such enactments seemingly should have been Torah law rather than rabbinic enactments.

To sharpen the point: if we wish to know the Torah’s view on the question whether it is proper to transfer the object to the buyer or leave it in the owner’s hands, seemingly the Torah’s view is to leave it with the owner. But the Sages intervene and enact an ordinance that enters the Shulhan Arukh and thereby becomes practical Jewish law, transferring it to the buyer.

There is a difficulty here in going against Torah law without special circumstances having arisen. Why do our enactments today not enter the Shulhan Arukh and not come to be seen as part of Torah law? Because they were not made in accordance with the spirit of Torah and Jewish law. But apparently this enactment was not made that way either.

Contracting contrary to what is written in the Torah: there too there are clear rules that determine the law, but according to most views there is no real interest in acting in accordance with them. The rule is that a person may determine whatever he wishes regarding his money, and everything is done by mutual agreement. So why establish default rules at all? And what is the law when the defaults have been established differently, as where there is a different and fixed legislative regime, as with us? In such cases, should one recite the blessing over Torah study on the study of civil law? Conversely, women too recite the blessing over Torah study on practical Jewish law, which shows that ‘Torah’ is not practical law but pure law. That is not what women are supposed to study.

Thus it is clear that there is law that is correct even if it is not practically binding. And conversely, there is law that is ‘incorrect’ and yet practically binding. There is a difference between ‘Torah’ and ‘Jewish law.’

A remark on the two parts of ‘Hebrew law’ (pure Jewish law and practical Jewish law), and the possibility of applying them in Israeli law.

Maimonides’s approach to the market ordinance

What we saw above is that Maimonides’s addition is an enactment of a different kind. We raised the possibility that perhaps it really does enter the basic law, since this is an enactment whose subject is basic justice rather than a repair made in response to changing circumstances.

We also saw that perhaps the very rule of despair and change of possession is the product of an enactment. Or perhaps this is a Torah-level rationale, namely the rationale of the market ordinance. The tendency, however, is to explain it otherwise, since the simple conception is that teleology belongs to rabbinic enactments and not to the core of Torah law.

C. Justice and truth: legal facts (teleology and causality)

Types of reasoning in law and Jewish law

What exactly is the difference between these two parts? Why is Torah different from Jewish law? Why does justice not always find expression in Jewish law?

This is the point of the article on the teleology of law and the causality of Jewish law: legal facts. There are two forms of reasoning in law and in Jewish law.

Thus, Torah consists of the legal and halakhic facts, whereas Jewish law includes the teleology. And even if this consideration is not the result of one set of circumstances or another, it is still the result of a fact. Therefore Torah law is what it is, even if justice and efficiency do not point in that direction.

These same two planes appear in copyright and in returning lost property. There too it is not presented as depending on the economic condition of the loser or the finder. Rather, it is more just to return the lost object even after despair, but despair is a legal fact, and therefore that is the law. Sometimes the Sages come and bring the teleology into the law as a rabbinic layer.

It should be noted that we find purposive interpretation with regard to enactments, but not with regard to Torah-level laws; we do not expound the rationale of the verse. One way to understand this is that Torah-level laws are not defined through goals for which they serve as means; rather, they are legal facts, at least according to Rabbi Judah. By contrast, rabbinic laws are means for attaining goals, as in Rabbi Ishmael’s statement: ‘I will read and not tilt,’ and with regard to the king, ‘I will multiply and not turn aside.’

True, there is also a rule that even if the reason lapses, the enactment does not lapse. But that is a technical rule, apart from the view of the Vilna Gaon that there are hidden reasons; and even there it is clear that there are purposes, only not necessarily the ones that we see.

See my article in Shnot Hayyim II.

Application to the two types of enactments

We saw that teleological rationales belong to rabbinic enactments and not to Torah law. The legal-halakhic system is the product of rabbinic enactments and of the Sages’ role. The basic law is not a legal system but a halakhic-spiritual system that also touches on legal aspects. Only over that does one recite the blessing over Torah study.

We can now see that whenever an enactment is involved, the tendency will be to interpret it teleologically; and conversely, a teleological rationale will always be interpreted as a rabbinic enactment and not as Torah law. This is what later authorities investigated, such as Atvan DeOraita, when asking whether we ever find a safeguard or protective fence at the Torah level. A safeguard and a fence are teleological rationales.

Therefore, in interpreting Maimonides, they were not inclined to explain as we suggested, namely that the basis of the rule of despair and change of possession lies in a rationale of the market-ordinance type, unless one says that the whole rule is rabbinic.

One implication is that within enactments we will find much purposive interpretation. Considerations such as the frequency of the case or the buyer’s fault take part in the application of the market ordinance. With respect to Torah law, by contrast, we generally will not find interpretations of that sort. Such interpretations generate doubts, because the rationale of a rule is always bound up with speculation. Likewise, the boundaries of the principle of non-differentiation are never entirely clear, nor how far one may introduce distinctions in practice at the expense of the uniformity of the law. Therefore it is also more difficult to decide disputes of these kinds, as opposed to a doubt within Torah law, where one rationale stands against another. Here the rationale is agreed upon; the question is only how far to take it.

As stated, in the market ordinance we do find teleological rationales and purposive interpretations—for example, whether the enactment was made for a notorious thief, where the buyer is at fault and therefore there is no reason to protect him at the owner’s expense, or for a robber, where the question turns on the frequency of the problem[1], and so forth.

D. Doubts concerning the market ordinance

Introduction

In this chapter we will deal with the implications of the different understandings of the market ordinance. An obvious implication concerns the laws of doubt, at least regarding doubts in the interpretation of the enactment. We will focus on two doubts that arise from a dispute among the halakhic decisors: 1. the market ordinance with respect to a notorious thief; 2. the market ordinance with respect to collateral worth less than the amount of the loan.

The dispute regarding a notorious thief

In the Talmud itself there is a dispute whether the market ordinance was enacted for one who buys from a notorious thief. In practical law too the decisors disagreed whether it was enacted for a notorious thief or not. Thus we find in the Shulhan Arukh and the Rema, Hoshen Mishpat, section 356, paragraph 2:

If he is a notorious thief, the market ordinance was not enacted for him, and the owners give the purchaser nothing; rather, the purchaser must proceed against the thief and recover the money he paid him. Gloss: Some say that even regarding a notorious thief the market ordinance was enacted, and one must return the purchaser’s money to him, unless the purchaser knew that the item he bought was stolen, in which case he must return it without payment. (If he is a notorious thief, the market ordinance was not enacted for him, and the owners give the purchaser nothing; rather, the purchaser must proceed against the thief and recover the money he paid him. Gloss: Some say that even regarding a notorious thief the market ordinance was enacted, and one must return the purchaser’s money to him, unless the purchaser knew that the item he bought was stolen, in which case he must return it without payment.)

And the Shakh there, subsection 6, brought opinions on both sides:

The Shakh notes that although some authorities rule that the market ordinance applies even to a notorious thief, the primary law follows the author of the Shulhan Arukh: it does not apply. He argues that this is the clear view of the Rif and Maimonides, is supported by the Talmud and many other authorities, and that even the Tur ultimately appears to rule this way. (The Shakh notes that although some authorities rule that the market ordinance applies even to a notorious thief, the primary law follows the author of the Shulhan Arukh: it does not apply. He argues that this is the clear view of the Rif and Maimonides, is supported by the Talmud and many other authorities, and that even the Tur ultimately appears to rule this way.)

The law of doubt in enactments generally

It emerges that we are dealing here with a legal doubt whether the market ordinance was enacted with respect to a notorious thief or not. What is the rule in the case of a doubt concerning rabbinic enactments?

The main source for the law of doubts in enactments is a responsum of the Ran, section 14, where he writes:

Even if the language were doubtful, the husband would be the certain party and the wife’s heirs the doubtful party, and a doubt does not extract from certainty; as they said in Yevamot 37b. Therefore the law is with the defendant. (Even if the language were doubtful, the husband would be the certain party and the wife’s heirs the doubtful party, and a doubt does not extract from certainty; as they said in Yevamot 37b. Therefore the law is with the defendant.)

The reasoning here appears to be that a doubt does not extract from certainty. The Torah-level law is certain, and the enactment is a doubt that comes to remove from that certainty. Therefore, where there is doubt whether something is included in the enactment, or doubt in interpreting the enactment, we leave the matter standing on Torah law.

This was also ruled in practice in the Shulhan Arukh, Even HaEzer, section 118, paragraph 6:

Anything not explicit in an enactment is left standing on Torah law. Likewise, in any doubt concerning an enactment, the woman’s heirs must bring proof, for we do not remove the husband’s inheritance on the basis of doubt. (Anything not explicit in an enactment is left standing on Torah law. Likewise, in any doubt concerning an enactment, the woman’s heirs must bring proof, for we do not remove the husband’s inheritance on the basis of doubt.)

That is, in a doubtful case concerning an enactment, the matter is left standing on Torah law. If so, it would seem that in the market ordinance too, in every case of doubt, the rule should remain what Torah law dictates.

The law of doubt in the market ordinance: the view of the Shakh

As noted, the Shakh rules in accordance with Maimonides that with respect to a notorious thief the market ordinance was not enacted. However, at the end of his remarks there he adds that even if we treat this as a legal doubt, the practical ruling does not change:

Therefore, since the market ordinance is an enactment, and by strict law the item must be returned for free, we have only what they enacted and should not add to it; thus we hold that for a notorious thief the market ordinance was not enacted. (Therefore, since the market ordinance is an enactment, and by strict law the item must be returned for free, we have only what they enacted and should not add to it; thus we hold that for a notorious thief the market ordinance was not enacted.)

He rules that in practice, with respect to a notorious thief, one should behave as though the market ordinance was not enacted. The explanation is that this is a rabbinic enactment, whereas by basic law the object should have been returned to the owner free of charge. Therefore, out of doubt, the law remains on the Torah-level baseline. This is akin to the principle of a doubt not extracting from certainty, which we saw above in the Shulhan Arukh: there is a certain Torah-level ownership of the owner, and there is only a doubt whether an enactment was made to remove the object from him; and a doubt does not extract from certainty. In another formulation: the enactment is an innovation, and we grant it only the scope that was clearly innovated, not more than that. This is a somewhat different formulation of the same idea.

He then discusses a gentile thief and additional situations, and the approach is identical: out of doubt, one leaves the matter standing on Torah law.

Thus there are two possible formulations of the Shakh‘s view:

1. A doubt does not extract from certainty.
2. You have only the scope of the innovation. Or: passive omission is preferable. There is a sweeping rule that in interpreting enactments one should take the restrictive approach, since enactments are innovations.

One implication concerns enactments that are not monetary, where there are not two opposing claimants. An interpretive rule exists with respect to such enactments too, but ‘a doubt does not extract from certainty’ may be a rule said specifically in relation to monetary disputes.

It is possible that these two formulations depend on everything we saw above. If the enactment really embodies simple justice, then it is not correct to say that it contains an innovation; on the contrary, the basic law is the innovation. On that conception, once the Sages enacted the rule and inserted it into formal Jewish law, it should now be applied as broadly as possible, for we have here an instrument that enables us to act justly and truly.[2] Therefore perhaps the Shulhan Arukh writes that the formal halakhic system includes only causal rules, that is, legal facts, while teleology remains outside the basic law until the Sages bring it inside, and then a doubt does not extract from certainty. De facto, the interpretation must be as restrictive as possible.

However, the rule that a doubt does not extract from certainty can be applied even if this enactment reflects justice and integrity, for at the end of the day there is a given Torah law, and there is a doubt whether the enactment removed the case from it or not.

The practical difference is with enactments that respond to particular circumstances and do not reflect justice, certainly not absolute justice. There we would apply this rule even under the second formulation. But with enactments that do contain justice, only the first formulation is acceptable. And that yields a practical difference for enactments such as the market ordinance, which expresses the true practical justice, that is, the teleology.

With respect to the marriage settlement, one should ask what the reason for its enactment is: does it express some absolute justice, or merely a local response to a situation that arose? In the simple reading, there too the enactment expresses justice rather than a local response, and therefore the possibility of restricting its interpretation exists only by virtue of the first formulation, not the second. That is why, in the Ran, we indeed found specifically the formulation that a doubt does not extract from certainty.

In any event, according to both formulations, it follows that wherever there is a doubt concerning a rabbinic enactment, the matter is left standing on Torah law. Seemingly this is true even where the usual rules of possession would point us in the opposite direction. This is a different kind of presumption of possession: the matter is left on Torah law, and whoever comes to extract by force of a rabbinic enactment bears the burden of proving that such an enactment exists. In truth, there is not really a rule of possession here, but rather the rule that a doubt does not extract from certainty, or the rule that every rabbinic enactment must be interpreted as restrictively as possible.

A general remark on ‘passive omission is preferable’

Many times we err in applying the rule that passive omission is preferable. At times, logic says that precisely the broader interpretation is the true passive omission. For example, in the dilemma of separating Siamese twins. The criterion is minimal price, but the price is measured by the harm done to justice and fairness, not necessarily by the severity of the transgression, whether it is committed by positive action or by passive omission. Likewise in the case of an abandoned infant in relation to Torah study.

In another formulation: it is obviously just to pay the money. True, there is a doubt what the law says about it, and here we say that a doubt does not extract from certainty, somewhat akin to the possessory reasoning explained on the basis of the Hazon Ish; see the booklet on legal rationales.

More generally, in cases of doubt one may ask whether we must always decide according to the formal rules of doubt, or whether when doubt exists there is room to be lenient or to act in accordance with justice according to one of the opinions, in the spirit of Rabbi Shimon is worthy to be relied upon in a pressing situation (‘Rabbi Shimon is worthy to be relied upon in a pressing situation’). One must distinguish between the laws of prohibition and permission and monetary law, but this is not the place to elaborate.

And we also saw above that with enactments we interpret them according to purposive considerations, and therefore it is no worse to decide in that way even in situations of doubt.

The law of doubt in the market ordinance: the view of Maharit

In Maharit’s responsa, part II, Hoshen Mishpat, section 12, he too discusses this dispute. The case there involves a customs official who took property belonging to Jews from their agent, who died on the road. The question is whether the property may be recovered from those who bought it from him, since there was a communal ban against buying such property, along with other considerations suggesting that this should be treated as the case of a notorious thief:

He describes a case in which Jewish merchants’ goods, clearly marked as theirs, were confiscated by a city official after their courier was killed. The local community forbade Jews to buy these goods until the owners arrived, but some ignored the ban and bought them cheaply. The question was whether this should be treated as the case of a notorious thief, so that the buyers must return the goods without reimbursement. (He describes a case in which Jewish merchants’ goods, clearly marked as theirs, were confiscated by a city official after their courier was killed. The local community forbade Jews to buy these goods until the owners arrived, but some ignored the ban and bought them cheaply. The question was whether this should be treated as the case of a notorious thief, so that the buyers must return the goods without reimbursement.)

That is the case. Maharit determines that this is indeed the law of a notorious thief, and he brings the dispute of the medieval authorities on that point:

Maharit reviews the Talmudic discussion and the dispute between Maimonides and the Rif on one side, and Rabbenu Yitzhak on the other, and argues that the Rif’s view clearly supports the position that the market ordinance was not enacted for a notorious thief. (Maharit reviews the Talmudic discussion and the dispute between Maimonides and the Rif on one side, and Rabbenu Yitzhak on the other, and argues that the Rif’s view clearly supports the position that the market ordinance was not enacted for a notorious thief.)

Thus, in his view, this is a legal doubt, and one that is more balanced than the Shakh presents it. The Shakh, true to form, annexes the whole world to his own position.

And in practice Maharit rules as follows:

As a practical ruling, since Rabbenu Yitzhak and the Rosh hold that the market ordinance was enacted even here, we do not take the object from the buyer without payment. (As a practical ruling, since Rabbenu Yitzhak and the Rosh hold that the market ordinance was enacted even here, we do not take the object from the buyer without payment.)

Up to this point, it appears that he rules out of doubt in accordance with Rabbenu Yitzhak and the Rosh, that the market ordinance was enacted here. His starting assumption is that the one who would be extracting is the owner, who wants to take the object from the buyer for free, and we do not remove it from the buyer without payment. This is therefore contrary in practice to the Shakh cited above.

But afterward he raises the opposite possibility, which in practice agrees with the Shakh:

One may say that since in any event these movables are destined to be returned, they are deemed in the possession of their owners; and as for the money he paid, let him bring proof that the market ordinance applies and then collect. (One may say that since in any event these movables are destined to be returned, they are deemed in the possession of their owners; and as for the money he paid, let him bring proof that the market ordinance applies and then collect.)

Here the assumption is that the owner is the one in possession, because the object must return to him in any event, whether the market ordinance applies or not. The whole discussion therefore concerns only the money, and with respect to the money the owner is in possession. Thus, under this possibility, there is no duty to compensate the buyer.

He brings two proofs for this. The first is from Bava Metzia 110b:

In the case in tractate HaMekabbel, where the orphans say, ‘We made the improvements,’ and the creditor says, ‘Your father made them,’ the land, since it stands for collection, is regarded as already collected; and as for the money, let him bring proof. (In the case in tractate HaMekabbel, where the orphans say, ‘We made the improvements,’ and the creditor says, ‘Your father made them,’ the land, since it stands for collection, is regarded as already collected; and as for the money, let him bring proof.)

The discussion there is whether the creditor may collect even from the improvements or not, because improvements made by orphans were not subjected to the lien. The second proof is from Bava Batra 24b:

Similarly, in the chapter Lo Yahpor, regarding a tree near a city, where it is uncertain which came first, the rule is that it is cut down without payment, because since the tree stands to be cut down it is regarded as already cut down; and as for the money, let him bring proof. (Similarly, in the chapter Lo Yahpor, regarding a tree near a city, where it is uncertain which came first, the rule is that it is cut down without payment, because since the tree stands to be cut down it is regarded as already cut down; and as for the money, let him bring proof.)

Both cases appear in the passage in Bava Metzia 110a-110b:

The orphans say: ‘We made the improvements,’ and the creditor says: ‘Your father made them.’ Who must bring proof? Rabbi Hanina initially thought that the land is in the orphans’ possession and the creditor must bring proof. But an old man said to them in the name of Rabbi Yohanan that the orphans must bring proof, because land that stands to be collected is regarded as though already collected. Abaye then adduces the case of the tree near the city: where it is doubtful which came first, it is cut down without payment, because since it stands to be cut down we tell the claimant, ‘Bring proof and take payment.’ So too here. (The orphans say: ‘We made the improvements,’ and the creditor says: ‘Your father made them.’ Who must bring proof? Rabbi Hanina initially thought that the land is in the orphans’ possession and the creditor must bring proof. But an old man said to them in the name of Rabbi Yohanan that the orphans must bring proof, because land that stands to be collected is regarded as though already collected. Abaye then adduces the case of the tree near the city: where it is doubtful which came first, it is cut down without payment, because since it stands to be cut down we tell the claimant, ‘Bring proof and take payment.’ So too here.)

However, Maharit goes on to write that one could distinguish our case from those two, since there they concern land, whereas here we are dealing with movables. And the buyer physically holds the object, so it is as though he has taken the law into his own hands with respect to the money—that is, the object itself counts as money being held by him against the compensation:

One might wish to distinguish movables, where seizure is relevant up to their value and we do not compel one to surrender without proof. On the other hand, in the tree case the owner has the presumption of his land to which the tree is attached, and yet we compel him to cut it down without payment. The matter therefore still requires decision. (One might wish to distinguish movables, where seizure is relevant up to their value and we do not compel one to surrender without proof. On the other hand, in the tree case the owner has the presumption of his land to which the tree is attached, and yet we compel him to cut it down without payment. The matter therefore still requires decision.)

In conclusion, it appears that he remains in doubt between the two possibilities.

Finally, he raises another side of the doubt: perhaps this possession is of no help at all, because it is seizure under doubt, and in a legal doubt seizure is ineffective. He cites the Rosh in Bava Kamma, who writes that seizure requires a definite claim, meaning that the doubt must exist only for the court:

Nor is this unlike the case of a priest who seized, where we rule in the first chapter of Bava Metzia that it is removed from him because it is seizure under doubt. So too here, where he is holding another’s movables because of a legal doubt, it is called seizure under doubt, as the Rosh wrote in the chapter Keitzad HaRegel regarding half-damages for pebbles. (Nor is this unlike the case of a priest who seized, where we rule in the first chapter of Bava Metzia that it is removed from him because it is seizure under doubt. So too here, where he is holding another’s movables because of a legal doubt, it is called seizure under doubt, as the Rosh wrote in the chapter Keitzad HaRegel regarding half-damages for pebbles.)

The Rosh, in chapter 2 of Bava Kamma, section 2, wrote that in a legal doubt seizure is ineffective because the one holding the object is himself subject to the legal doubt. But Maharit rejects this possibility, saying:

Here it is different, because the object came into his hand permissibly. (Here it is different, because the object came into his hand permissibly.)

The Rosh speaks of a case in which the one who seizes knows that the law is doubtful, and he seizes in order to win. That is called seizure under doubt. Maharit says that our case is not governed by the Rosh’s rule, because here the possession began permissibly. The customs official took the money, and the one who bought from him thought he was permitted by law to hold it; he had no idea at all that this was stolen property. So too in every case of one who buys from a notorious thief, at least so long as he does not know that the object is stolen, it is considered that it came into his hand permissibly. Maharit says that in such cases possession helps even according to the Rosh.

It is not clear whether Maharit remains in doubt between the two possibilities for understanding our case, namely who is considered in possession, or whether he adopts the second possibility, as the Shakh does, and is uncertain only whether the buyer is considered in possession of the object as against the money. The difference is that according to the first possibility he raised, the buyer is in possession of the object itself, whereas here he is regarded as holding the object against the money that is owed to him.

Two ways to understand the market ordinance

• The object remains the owner’s, just as under Torah law, but rabbinically he is obligated to compensate the buyer when he takes from him his own object, for the loss he suffered at the hands of the thief. It follows that according to all views the object belongs to the owner, and the whole discussion concerns only the duty of compensation. Therefore the owner is in possession with respect to the money, and the burden of proof lies on the buyer. This has nothing to do with the difference between Torah and rabbinic law; the same ruling would follow even if all of it were Torah law.

At first glance, this seems similar to what emerges from the Shakh, but it appears that the Shakh himself did not understand the matter that way. From the Shakh it appears that this is not a question of possession and burden of proof, but a question of interpreting rabbinic enactments. He argues that wherever there is doubt whether an enactment exists, the matter must be left on Torah law, and we should not add beyond what was enacted. If so, here too, on the Torah level there is no market ordinance, and there is only a doubt whether the Sages enacted one. In such a case, we leave the matter on the Torah law that there is no market ordinance.

In the end there is also another possibility within Maharit along this line: namely, that although the owner is the one in possession of the object, nevertheless the buyer is holding the object against the money, as above.

Up to this point, all these explanations lead to the same practical halakhic conclusion. But we will now see that according to another conception of the enactment a difference can arise between them.

• Rabbinically, the object itself is vested in the buyer, and the duty to compensate the buyer is only a consequence of his being the owner of the object. This emerges explicitly from the first possibility presented by Maharit. In fact, it also emerges from the third possibility he raises, for there the buyer is indeed regarded as being in possession of the object, but not because it is his; rather, because he physically holds it, and that counts as holding money that is owed to him. Even there, the underlying assumption is that the object is deemed to remain in the original owner’s possession and not in the buyer’s.

Still, it is not clear: if this is really the understanding of the market ordinance, why is he required to return the object at all? We are forced to say that at the very same time that the Sages vested ownership in the buyer, they also gave the owner the right to compel the buyer to sell the object back to him.

According to this conception, the owner is not the one in possession. After all, on the side of the doubt that the market ordinance was enacted, the object itself is also acquired to the buyer, and it is not merely that there is a duty of compensation. In other words, the doubt here concerns whose object this is, and therefore the owner is not in possession.

In fact, Maharit’s wording suggests that this is how he understood the matter throughout. Even later in his remarks, when he proposes that the owner is the one in possession, that is only because in practice the object certainly returns to him, and the question concerns only the compensation. The argument there derives from the facts—that in practice the object returns to its owner in any case—and not from the legal interpretation of those facts, namely that the owner is really the one in possession.

Still, it should be noted that if we understand the enactment as transferring the object to the buyer, with no duty of return but only a duty to sell, then it is not correct to apply here the law of the tree and the orphans, for there in every case there is indeed a duty of return. Therefore there is room to understand that Maharit did not really think that the object was vested in the buyer, but only that there was a duty of compensation. This requires further examination.

And indeed, in Rabbi Akiva Eiger’s glosses to the Shakh there, he wrote:

Rabbi Akiva Eiger notes that Maharit treats this as a legal doubt, and is uncertain whether, since in any event the object must be returned, the owner is therefore considered the one extracting with respect to the money, similar to the doubtful case of which came first regarding the tree; or whether, because with movables there is complete physical possession, that rule does not apply. (Rabbi Akiva Eiger notes that Maharit treats this as a legal doubt, and is uncertain whether, since in any event the object must be returned, the owner is therefore considered the one extracting with respect to the money, similar to the doubtful case of which came first regarding the tree; or whether, because with movables there is complete physical possession, that rule does not apply.)

It appears clearly from his words that he understood Maharit’s doubt to arise only because of the practical duty to return the object; but even on that side of the issue, the conception remains that the object is in the owner’s possession and that they enacted only a duty of compensation.

And so it appears explicitly in Rashi, Bava Metzia 110b, who wrote:

Rashi explains that in the city-tree case, since the tree must be cut down either way, the doubt concerns only payment and not the act of cutting. So too here: whether the orphans improved the land or their father did, the creditor takes the land with the improvement in any case, and if the orphans improved it he pays for that improvement. Therefore the doubt concerns only the money, and the burden of proof lies on the orphans. (Rashi explains that in the city-tree case, since the tree must be cut down either way, the doubt concerns only payment and not the act of cutting. So too here: whether the orphans improved the land or their father did, the creditor takes the land with the improvement in any case, and if the orphans improved it he pays for that improvement. Therefore the doubt concerns only the money, and the burden of proof lies on the orphans.)

Here too the consideration is practical: since in any case he is going to cut down the tree, the discussion concerns only the money. The claim is not that the tree does not belong to him, or anything of that sort. With respect to the orphans, one might perhaps interpret the Gemara in either direction, but from the comparison to the tree it is quite clear that there too they understood it as Maharit did.

And this also appears from Rashi in the Bava Batra passage regarding the tree:

Here too, even in the definite case, it stands to be cut down, only that he receives payment. Therefore in the doubtful case as well we say: cut it down in any event; and when he comes to collect money, we tell him: bring proof that you were first and take payment. (Here too, even in the definite case, it stands to be cut down, only that he receives payment. Therefore in the doubtful case as well we say: cut it down in any event; and when he comes to collect money, we tell him: bring proof that you were first and take payment.)

We must now ask what happens here according to the Shakh‘s line of thought. As noted, the Shakh held that there is a rule to construe rabbinic enactments as narrowly as possible, and that where there is doubt the matter is left on Torah law. That consideration is not sensitive to the difference between the two understandings of the enactment. If so, on this consideration, according to both understandings the result is that out of doubt there is no market ordinance in the case of a notorious thief, and the object must therefore be returned without payment.

Moreover, according to this there is no proof from the passages in Bava Metzia and Bava Batra, because there the issue concerns laws of possession, whereas here there is no room for possessory considerations. The question here is interpretive: is there an enactment or not?

We therefore have before us a difference between Maharit’s two formulations and the Shakh‘s formulation. Maharit’s consideration, which speaks in terms of possession, is sensitive to how we understand the market ordinance. But the Shakh‘s consideration is indifferent to that distinction. In other words, on this approach a difference arises between the two formulations of the decision-making considerations presented above.

The relation between the two explanations

Why assume the second explanation at all? It is less simple, in that it makes an unnecessary assumption. The Sages’ aim was to obligate the owner to compensate the buyer, so why is there any logic in assuming that they also vested ownership in the buyer?

It seems that the reason is that the Sages wished to cast the enactment into a halakhic pattern resembling Torah law, a causal rather than teleological pattern. They established ownership, and from that they derived the duty of payment. According to the first possibility, the obligation to compensate the buyer is not the value of the object but the money he paid the thief. And that is puzzling: why place such a duty of compensation on the owner? But if the object was acquired by the buyer, then the payment is not compensation for a loss, but the price of the object. It is a right to buy the object.

A practical difference concerns a buyer who wishes to fulfill his obligation with this object, for example by using it as a lulav, where the law requires that it be his own. According to the second approach, it really is his, at least according to the opinion that a rabbinic acquisition is effective even for Torah-level requirements. This is itself the logic of the market ordinance: that he should have confidence in his ownership of the object, at least so long as no challenge has yet been raised against it.

To explain the first approach, one may say that the Sages are not inclined to intervene at the level of legal facts, and therefore ownership remains as it was. Their intervention lies in establishing a personal duty to compensate, and the like.

A proposal for explaining the root of the dispute

We have seen that in every doubt concerning the market ordinance there are two grounds for saying that the matter should be left on Torah law: 1. the rule of restrictive interpretation of enactments, associated with the Shakh; 2. ordinary rules of possession, associated with Maharit and Rabbi Akiva Eiger.

We also saw that according to Maharit the ruling can depend on how we understand the market ordinance itself. According to the Shakh, by contrast, the result is always in favor of the owner, regardless of how we understand the enactment.

But if we look again at the dispute among the medieval authorities regarding a notorious thief, it seems possible that this dispute itself depends on how one understands the essence of the market ordinance. If the ordinance is as in the first formulation, then all that exists here is a duty of compensation on the owner, and there is no logic in obligating him to compensate the buyer for a foolish act of the buyer’s own. In the case of a notorious thief, the buyer himself should have been careful, and there is no reason to impose a duty of compensation on the owner. But if the market ordinance is a determination that an object lawfully bought, even without a comprehensive inquiry, belongs to the buyer for reasons of efficiency, then the object now belongs to the buyer. And even if he bought it from a notorious thief, so long as he did not know that the object was stolen, the object is his, for this is a general enactment concerning the functioning of the commercial market. Indeed, the medieval authorities themselves added that where he knew the object was stolen, the market ordinance does not exist, for ownership is given to him only if he bought in good faith. Although perhaps this also fits the compensation model, since if he knew the object was stolen, then the money he gave the thief was a gift, and he is therefore not entitled to compensation for it.

The difference, then, lies in the question whether the market ordinance is a duty of compensation for the damage caused by the thief, in which case if the buyer ought to have been careful there is no duty of compensation; or whether the idea is that, for the sake of market efficiency, every object lawfully bought is vested in the buyer, except that he can then be required to sell the object to the owner. The question is: what is the nature of the owner’s payment to the buyer—compensation for loss, or the price of the object?

If this is correct, it follows that this dispute among the medieval authorities and halakhic decisors itself revolves around the two possibilities for understanding the market ordinance. According to Maimonides, who held that no ordinance was enacted for one who bought from a notorious thief, he apparently understood the enactment as a duty of compensation and not a transfer of ownership to the buyer. Perhaps he is consistent in this with his position in law 3, where he also posits a reverse duty of compensation in a case where there was despair: there the buyer who acquired the object must compensate the owners in money. The market ordinance does not affect the laws of ownership, but it obligates compensation through the laws of damages.

According to Rabbenu Yitzhak, who held that the market ordinance was enacted even for a notorious thief, he apparently understood that the Sages vested the object in the buyer, and what the owner pays is the price of the object. He has a right to buy, not a duty to compensate.

A logical loop in this particular doubt

The question now arises how this dispute itself should be decided. According to the Shakh, it makes no practical difference; one should interpret narrowly. Hence in a case of doubt the matter is left on Torah law, and therefore the rule is that the market ordinance was not enacted and the object must be returned to the owner without payment.

But if we seek to decide it according to Maharit’s consideration, it turns out that the two sides also conceive possession differently, and do not merely disagree about the law. In such a state of affairs one cannot decide between them by considerations of possession, because those very considerations themselves depend on the dispute.

In other words: when Maharit decides according to the owner’s possession, he assumes that the conception of the market ordinance is that it imposes a duty of compensation and does not vest the object in the buyer. Therefore, in his view, there is a doubt whether such a duty of compensation was imposed, but the owner has possession of the money, and therefore the burden of proof lies on the buyer. But this itself already assumes one side of the underlying dispute, namely that there is no ordinance in the case of a notorious thief. In other words, that would be a substantive ruling, not a ruling under the laws of doubt. Surely that was not his intention, and it seems that Maharit did not understand the dispute among the medieval authorities in that way.

Moreover, it is possible that even the Shakh could agree with Maharit regarding the conception of the market ordinance. But in this dispute among the medieval authorities, in his view, one cannot decide by Maharit’s proposal, because that very point is itself part of their dispute. That is why the Shakh raises here specifically the consideration of restrictive interpretation, since that can decide the dispute even on those terms. It is possible that in disputes that do not presuppose these very issues, the Shakh too would accept the decision-making considerations raised here by Maharit.

In practice, this may explain why the Shakh does not rule on the basis of the passages cited by Maharit in Bava Batra and Bava Metzia. Seemingly, the Talmud there indicates that even if possession is with the buyer, since in practice the object will return to the owner, the dispute concerns only the money, and the question of possession is therefore determined by possession of the money. If so, the Shakh seems to ignore those passages. But according to our analysis this is not so, for here this itself is the dispute—whether the owner has possession or not—and in such a case the practical consideration cannot decide the matter. In another formulation: if the enactment transfers ownership to the buyer, then it is not correct to say that in any event the object returns to the owner, because if he does not pay, the object will not return to him. Therefore the Shakh argues that at least according to one side, it is not correct to say that possession is with the owner.

A doubt regarding collateral whose value differs from the amount of the loan[3]

There is another dispute among the medieval authorities concerning the market ordinance, namely collateral whose value exceeds the amount of the loan. It is interesting to see what they do with this. Maimonides writes in the Laws of Theft, chapter 5, law 6:

If the stolen object was pledged as collateral, whether it was pledged for more than its value or for less than its value, the owners pay the holder of the collateral and then proceed against the thief, unless he was a notorious thief, as explained above. Ra’avad comments: only up to its value. (If the stolen object was pledged as collateral, whether it was pledged for more than its value or for less than its value, the owners pay the holder of the collateral and then proceed against the thief, unless he was a notorious thief, as explained above. Ra’avad comments: only up to its value.)

Maimonides and Ra’avad thus disagree regarding collateral whose value differs from the value of the loan. According to Maimonides, the market ordinance applies there too, whereas according to Ra’avad it applies only when the two values are equal.

The Mishneh LaMelekh there notes that the Beit Yosef challenged Maimonides by arguing that when the collateral is worth less than the loan, it is obvious that the loan was not made in reliance on the collateral, and therefore it is implausible that the market ordinance was enacted there:

The Beit Yosef asks: even though the conclusion is that the market ordinance applies when the collateral and the loan are equal, when one lent more than the collateral’s value he surely did not lend in reliance on this collateral, but because he trusted the borrower. (The Beit Yosef asks: even though the conclusion is that the market ordinance applies when the collateral and the loan are equal, when one lent more than the collateral’s value he surely did not lend in reliance on this collateral, but because he trusted the borrower.)

Immediately afterward, he brings an explanation that Maimonides follows the view of the Tur:

The Mishneh LaMelekh suggests that the Tur is consistent with his own view elsewhere: one who holds collateral may say, ‘To me it is worth that much.’ Therefore, even when the collateral is worth less than the loan, the market ordinance can apply, because the lender can say that the collateral was worth more to him than the amount of the loan and that he lent in reliance on it. He notes that the Mordechai says the same. (The Mishneh LaMelekh suggests that the Tur is consistent with his own view elsewhere: one who holds collateral may say, ‘To me it is worth that much.’ Therefore, even when the collateral is worth less than the loan, the market ordinance can apply, because the lender can say that the collateral was worth more to him than the amount of the loan and that he lent in reliance on it. He notes that the Mordechai says the same.)

He therefore answers that the Tur is consistent with his own position, namely that the holder of the pledge can say, ‘To me it is worth that much,’ and claim that he lent on the strength of the pledge. He notes that the Mordechai says so as well.

And he concludes with a difficulty against the Beit Yosef:

If so, why was the Beit Yosef troubled by the Tur, once the Tur himself holds that one may say, ‘To me it is worth that much’? And if so, why does Ra’avad object here, although elsewhere he too appears to accept that reasoning? This therefore requires further examination. (If so, why was the Beit Yosef troubled by the Tur, once the Tur himself holds that one may say, ‘To me it is worth that much’? And if so, why does Ra’avad object here, although elsewhere he too appears to accept that reasoning? This therefore requires further examination.)

The gist of his difficulty is this: if the Beit Yosef himself recognizes the rationale that one can say ‘to me it is worth that much,’ why is he troubled by Maimonides’s ruling that even where the value differs from the loan the market ordinance still applies? He notes, however, that Ra’avad here also challenged Maimonides, even though he himself seems to hold that such a claim can be made, and that would create a contradiction within Ra’avad.

And in Shiltei HaGibborim, on the passage in Bava Kamma 115, letter 2, he wrote that according to Ra’avad, in a case of collateral whose value is lower than the amount of the loan, the owners pay the lender nothing at all—not even the value of the collateral. Some, however, understood Ra’avad differently: namely, that according to the value of the collateral he certainly must be paid, and Ra’avad’s objection to Maimonides is only that he need not be paid the full amount of the loan. Maimonides, by contrast, holds that the full amount must be paid, on the rationale that ‘to me it is worth that much.’

Of course, according to Shiltei HaGibborim, it is very difficult to reconcile Ra’avad with himself. But on the other hand, one sees that the problem is not the value of the collateral as such, but the market ordinance, and this hints at a solution to the contradiction.

In Imrei HaTzvi there, it was explained that Ra’avad’s position is that our passage mentions only the case of equal value, as the Maggid Mishneh and other commentators write. Therefore there is doubt whether the market ordinance applies also in a case where the collateral is worth less than the loan. In other words, there is doubt whether the enactment extended even to the amount above the value of the collateral itself. Therefore there is no contradiction to Ra’avad’s view elsewhere that there is a rationale of ‘to me it is worth that much.’ There may indeed be such a rationale, but it is not clear whether the market ordinance extends that far; and in doubt, the burden of proof lies on the one who seeks to extract.[4]

He adds and explains that the holder of the collateral is in possession up to the value of the collateral, and therefore receives that amount; but everything beyond that is disputed, and the burden of proof lies on him. This is indeed his conclusion, and therefore he adds that he does not understand how Shiltei HaGibborim concluded that Ra’avad exempts completely.

It is not clear whether his intention is to say that the holder is in possession because to that extent the market ordinance was certainly enacted, or whether he is in possession of the object against the money, as in Maharit’s second formulation. The latter seems more plausible in his view, because if the case is uncommon, perhaps the market ordinance was not enacted there at all, and we therefore leave it standing on Torah law.

In any event, if we understand the issue as one of restrictive interpretation of the enactment, then one can indeed understand Shiltei HaGibborim. We interpret the enactment as not applying to collateral where the values are unequal, since there is a possibility that taking such collateral is uncommon. Consequently there is no presumption of possession here at all. The owner is in possession of the object, and with respect to the money the burden of proof lies on the holder of the collateral, and we interpret the enactment restrictively.

In any case, if we understand that the enactment vested the object in the buyer and that the duty of compensation is not compensation for loss but payment of the value of the object, then here, if the market ordinance was not enacted, the object is certainly being held in his hand unlawfully, and Shiltei HaGibborim is correct. The author of Imrei HaTzvi assumed that the obligation is a duty of compensation and not that the buyer was granted ownership. Perhaps on this very point Ra’avad and Maimonides disagree, for we saw that Maimonides took it as a duty of compensation. We also noted that he is consistent with this in law 3, where he expands the duty of compensation in the market ordinance to a case of despair. And there Ra’avad disagrees with him. True, Ra’avad does not disagree with him on the point that no enactment was made for a notorious thief, although according to Maharit that is not where the dispute lies, since in his view the owner is in possession according to all opinions.

Moreover, even if the object was vested in him, that still does not mean that he can now collect its price however he wishes, on the rationale that ‘to me it is worth that much.’ The owner can compel him to sell the object back to him, and who says that the Sages gave him the right to buy the object back at more than its real value? In the case discussed by Ra’avad and the Tur, where he can say ‘to me it is worth that much,’ the holder of the collateral wants to retain it against the loan, while the heirs of the borrower want to redeem it for its monetary value, which is less than the loan. To that the lender responds that for him it is worth the amount of the loan and therefore he does not wish to sell it to them at its ordinary value. That is an entirely different situation.

It is simply not reasonable that a person should be able to tell the owner that for him it is worth millions, and thereby neutralize his duty to sell the object back to the owner. One might reply that here his claim has some footing, since he lent a large sum on the basis of this collateral. But why should his own valuation determine the value of the object at all? Therefore it is clear that when the Sages compelled him to sell the object to the owner, they also determined that it be sold at its actual value.

But all this can be understood differently. If the market ordinance was a duty to compensate the buyer for his loss, then we must examine what that loss was, and then there is room to require payment according to the amount of the loan rather than according to the value of the collateral. Therefore Maimonides says that the owner pays him the amount of the loan. But if the enactment was that the owner buys the object back, then it is reasonable that he buys it at its value and not at the amount of the loan, for the reason just explained. That is Ra’avad’s view, if we do not follow Shiltei HaGibborim.[5] In other words, this is yet another practical difference between the two conceptions of the market ordinance, and not only with respect to how doubts in the market ordinance are decided, but with respect to its very meaning.

[1] The consideration of frequency is important and substantive, as in the rest of rabbinic law as well, because the enactment infringes someone else’s rights, which belong to him by Torah law, in order to advance a public interest, namely free commerce in the market. Therefore those rights should not be infringed when the public interest is not a common one. The same is true of other rabbinic enactments: the assumption is that one should not alter Torah law except in situations where the interest is clear and broad.

This is essentially an explanation of the rule the Sages did not decree with respect to an uncommon matter (‘the Sages did not decree with respect to an uncommon matter’). However, where the enactment advances a real and important interest that comes at no price of infringing rights, perhaps there is room to apply it even in an uncommon case. This nicely explains various distinctions we find regarding the doctrine of ‘acting as their agents,’ which is applied even where the case is uncommon, although initially it was said to have been instituted only where the case is common.

[2] And see my article on scriptural decree, where I discussed several possibilities for applying the rule you have only the scope of its innovation (‘you have only the scope of its innovation’). Sometimes it is not used at all, when the innovation is itself rationally clear and the novelty lies elsewhere.

[3] See Imrei HaTzvi, part III, on the passage in Bava Kamma 115a (section 29, subsections 2-3).

[4] In subsection 4 there, the author of Imrei HaTzvi brings proof for this from the fact that the Rema did not disagree with the Shulhan Arukh, Hoshen Mishpat 356:7, where it is written that for a notorious thief no enactment was made with respect to collateral. The Rema makes no comment there, even though he disagrees with the author of the Shulhan Arukh regarding a notorious thief, as we saw above. The author of Imrei HaTzvi explains that here the Rema does not disagree because here the issue is one of doubt; and since even regarding a notorious thief there is doubt, therefore even according to him the market ordinance was not enacted for collateral of unequal value in the case of a notorious thief. See there carefully for the explanation; this is not the place to elaborate.

[5] And it is obvious that this does not contradict his view that the holder of the collateral can say ‘to me it is worth that much,’ for there he took the collateral against the loan, and therefore he determines its value. But here he took it from the thief and not from the owner, so on what basis would we say that the enactment gave him the right to claim an inflated value even against the owner?