Regarding market regulation
With God’s help
introduction
In this lesson, we will deal with a general aspect that arises from the issue, and not with one or another detail from the complicated laws of market regulation.
A. Market regulation
Introduction: Market Regulation
According to the principle of law, every object is owned by its owner until there is despair and a change of ownership (and the Amoraim differed on the issue of whether the arrangement is mishnah). Therefore, if Shimon stole an object from Reuven and sold it to Levi without Reuven despairing of it (and perhaps even if he despaired after the sale), then even after the sale the object belongs to Reuven. Therefore, if Reuven heard that the object was with Levi, he could claim it for himself without any compensation, and Levi had the obligation to inspect the objects he bought, and if necessary to sue Shimon, the thief who sold him the object, to compensate him for his loss and return to him the money given to him.
But at the level of the Drabnan, there is the regulation of the market. This is a regulation of the Sages that aims to streamline the economic market by giving the buyer confidence that the goods he bought in good faith will not be taken from him, at least not without compensation. Thus, Maimonides writes in Paha Khilafah 2:
The thief sold it and the owners did not despair, and later the thief was recognized and witnesses came forward that it was the object that so-and-so sold that he stole in front of us. The object is returned to its owner and the owner is given the blood money that he weighed to the thief because of the market regulations, and the owner returns and takes justice with the thief. If he is a famous thief, the market regulations are not applied to him and the owner is not given the blood money, but the one who takes it returns and takes justice with the thief and takes out the blood money that he weighed to him.
The reason for this is not Levi's right, even though he bought the object from Shimon in good faith, since the right of Reuven, the owner, certainly outweighs it. The reason is a broader consideration of concern for the efficiency and reliability of the market, because if we force Levi to return the object to Reuven, free trade in the market will be seriously harmed, since buyers will not have confidence in what they are buying.
If so, according to the law, the object belongs to the owner. Only for reasons of efficiency do the sages take away his rights, obliging him to pay the price to the buyer and negotiate with the thief.
Additional section in the market regulation
Indeed, in Rambam we found another section of the regulation of the market, and many have already dealt with it. Thus he writes in the chapter on the 3rd chapter of the book of the Law:
The owners despaired of the theft, whether they despaired and then the thief sold it, or they despaired after he sold it, the buyer bought it in despair and with a change of heart, and does not return the theft itself to its owners, but gives them the money if he took it from a famous thief, or does not give either the object or the money at all due to market regulations if the seller was not a famous thief. +/The acquisition of the "Ra'av"/ The owners despaired of stealing, etc., but rather gave them blood money because of the regulation of the market if the thief was not famous. A. All this has no root or branch and is a distortion of the copyist.+
The Rishonim and the Nok have already elaborated on this Rambam in their commentary, and there are several formulas in his words. The agreed-upon formula is that there is a market regulation to compensate the owner even in the case of despair and a change of ownership, and the taker must pay the owner the price of the object (in the case of a famous thief).
It is not clear why this regulation is even called the 'market regulation'. Ostensibly, the gist of the law is that nothing should be paid for the buyer's object (since there was despair and a change of permission), and the Rambam states that there is an obligation to compensate the owner for this. It is possible that the very law that despair and a change of permission of the buyer is the market regulation, and its reason is concern for the buyer, but when one buys from a notorious thief, he has an obligation to compensate the owner (see AnciT E. 'Despair' notes 557-581). Perhaps this should be linked to the dispute over whether despair should precede the change of authority or not. If despair should precede, then the assumption is that the fear of losing control is the reason for despair (as in loss). But for the M.D. that a change of authority is the reason for despair even if despair comes after it, there is room for explanations such as the regulation of the market. Indeed, Maimonides in Ha-Hag (above) believes that despair is beneficial even after a change of authority, and therefore it is possible that in his opinion this ruling is due to the explanation of the regulation of the market.
Although theAs of today On the website of Pirsh Ifka: According to the principle of the law, there is an obligation to pay the owner even in the case of despair and a change of permission, and the market regulation is that there is no obligation to compensate an undisclosed thief. From the division that Maimonides makes so that he inserts the reasoning of the market regulation only into the second law (and takes care to show that it is part of the second law only), it follows thatAs of todayThe obligation to compensate is a principle of law, and because of market regulation, those who bought from an unknown thief were exempted from this obligation.
It is not clear where this obligation to compensate comes from, which departs from the principle of the law. And some of the latter (see, for example, King's Hand On a website) that they wrote that it is a harmful (harmful?) law. And maybe it is the market regulation itself of buying in desperation and changing permission and so on.
B. Between 'Halakha' and 'Torah'
Two types of regulations
Now, it should be noted that this regulation is an exception in a certain sense. Generally, if there is no good reason to uproot Torah law, then Torah law remains in place. Such a reason could be a change in circumstances or some social change (multiplicity/few thieves, changed social forms of life, etc.). But here it seems that this regulation is not the result of social changes, or any changes in circumstances. On the surface, the consideration seems to be that this law is more correct, meaning that the buyer's right outweighs the owner's right (at least in a broader consideration). Or, to put it differently: the violation of the buyer's right will cost us a heavier price than the violation of the owner's rights.
If so, why is this halakha itself not a Torah law? This can be formulated in two ways: 1. Why, after the sages established it, does this halakha not become the main law? And below we will see a solution to this question. 2. Why did the Torah itself not establish the main law if this is a more correct situation?
It should be remembered that we have no clear source for the fact that the object belongs to its owner until despair and a change of ownership, nor for the fact that after despair and a change of ownership it leaves the owner's possession. All of these are considerations of the Sages. Nevertheless, these considerations are the result of interpretation, and after them the law of the Torah was determined, whereas here the consideration of efficiency does not become a law of the Torah but remains a regulation of the Sages.
Although above we raised the possibility in Rambam that the very law of buying in desperation and changing permission is also a result of the regulation of the market, then the regulation truly becomes the basis of Torah law, or at least after it is regulated it is assimilated into the main law (and see below for further details).
More generally, we ask: Why is there a difference between Torah law and justice and truthfulness? If justice indeed determines that the object will not belong to its owner in such a situation, then why does the Torah determine that it does belong to him and only the rabbis should dispel this?
Is there anything that should be written in the Book of Laws (theShulchan Arba'ah) that the object belongs to the owner, even though we do not apply it in practice? If so, then why did the Torah not establish both levels together as Torah laws: A. The owner's fundamental ownership. B. His obligation to compensate the buyer. As we recall, the second level is a determination of the Sages, and is the rabbinical law.
Two parts of 'Jewish Law'
There are considerations of justice and efficiency here versus considerations of legal truth.
There are regulations that come intoShulchan Arba'ah and become part of the halakha, and there are regulations that remain outside (as noted by Prof. Chaim Soloveitchik, in his book On Halacha, Economics, and Self-Image, regarding interest laws that have entered and those that have not enteredShulchan Arba'ah).
And here, there was a place to put inShulchan Arba'ah Precisely regulations of the kind that are not the result of changing circumstances but something universal and eternal. This is indeed the case with us (regarding market regulation). On the other hand, these regulations supposedly should have been Torah law, and not rabbinical regulations.
Let us clarify: If we want to know what the Torah thinks about the question of whether it is appropriate to give the object to the buyer or leave it in the hands of the owner? Apparently, the Torah thinks that it should be left in the hands of the owner. But the Sages intervene and amend a rule that enters into theShulchan Arba'ah And thus, you effectively transfer it to the buyer.
There is a problem here of going against Torah law without special circumstances. Why are our regulations today not included in the Shul and not perceived as part of Torah law? Because they were not made in accordance with the spirit of the Torah and Halacha. But wasn't this regulation made that way too?
The stipulation on what is written in the Torah: There are also clear rules there that determine the halacha, but most opinions have no interest in acting according to them. The rule is that a person determines with regard to his money whatever he wishes, and everything is done by mutual agreement. So why even set defaults? And what is the ruling when the defaults are determined differently (as in a place where there is different and fixed legislation, like ours)? In these cases, should the blessings of the Torah be recited over the study of civil law? Alternatively, women also recite the blessings of the Torah over the halacha in practice, which shows that the 'Torah' is not a halacha in practice but a pure halacha. Women are not supposed to learn that.
If so, it is clear that there is a law here that is correct, even if it is not practically binding. On the other hand, there is a law here that is 'incorrect' and yet practically binding. There is a difference between 'Torah' and 'Halacha'.
A note on the two parts of 'Jewish law' (pure halacha and practical halacha), and the possibility of their application in Israeli law.
Maimonides' method of regulating the market
What we saw above is that Maimonides' addition is a different type of regulation. And we raised the possibility that this may indeed fall within the gist of the law, since this is a regulation that is concerned with basic justice and not a correction as a result of a change in circumstances.
We also saw that perhaps the law of despair and change of authority itself is the result of a regulation. Or perhaps it is a Sabra da'Uriya (the explanation of the regulation of the market). Although the tendency is to interpret this differently, since the simple perception is that teleology is a matter of rabbinical regulations and not of the essence of Torah law.
C. Justice and Truth: Legal Facts (Teleology and Causality)
Types of reasoning in law and halacha
What is the difference between these two parts? Why is the Torah different from the Halacha? Why is justice not always expressed in the Halacha?
The article on the teleology of law and the causality of halacha: legal facts. Two forms of reasoning for halacha and law.
Therefore, the Torah is the legal and halakhic facts, and halakhic includes teleology. And even if this consideration is not the result of one circumstance or another, it is the result of a fact. Therefore, the Torah is such, even if justice and efficiency do not dictate so.
The same two levels in copyright and in the restoration of loss (and even there it is not presented as depending on the financial situation of the one who loses or finds, but rather it is more just to restore the loss even after despair, but despair is a legal fact, and therefore this is the halakha. Sometimes the sages come and introduce teleology into the halakha as a rabbinical layer).
It should be noted that we find a purposive interpretation of the regulations but not of the laws of the Torah (no reason is required for reading). One way to understand this is that the laws of the Torah are not defined through goals that are means to them, but rather these are legal facts (at least according to Rabbi Yehuda). In contrast, the laws of the rabbis are means to achieving goals (R.S.: I will read and not delay, and in the king I will multiply and not be forbidden).
Although there is a rule that even if the reason is nullified, the regulation is not nullified, but this is a technical rule (except for the Gra's method, which states that there are hidden reasons, and even there it is clear that there are purposes, but they are not necessarily the ones we see).
See my articles inYears of life on.
Application to both types of installations
We have seen that teleological reasoning is a matter for rabbinic regulations and not for Torah law. The legal halachic system is a product of rabbinic regulations and the role of the sages. The essence of the law is not a legal system but a halachic-spiritual system that also touches on legal aspects. Only upon it is the blessing of the Torah recited.
Now we can see that whenever a regulation is involved, the tendency will be to interpret it teleologically, and vice versa: teleological reasoning will always be interpreted as a rabbinical regulation and not as Torah law (which is what the later scholars, such as Athwan Dauritha(We do not find a restriction or a boundary in the Dauraita. A restriction or a boundary is teleological reasoning.)
Therefore, the Rambam did not tend to interpret as we suggest that the basis of the law of despair and change of authority is in the reasoning of the market regulation (unless it is said that its entirety is from the rabbis).
One of the consequences is that in the regulations we find a lot of purposive interpretation. Considerations such as the prevalence of the situation or the buyer's fault play a part in the application of the market regulation. Regarding Torah law, we usually do not find such types of interpretations. These interpretations give rise to inconsistencies, since the reason for reading always involves speculation, and the definition of 'not a fallacy' is never clear, and to what extent distinctions are made to the law at the expense of the uniformity of the halakhah. Therefore, even in disputes of this kind it is more difficult to decide (compared to a doubt in Torah law, where there is evidence against evidence. Here, the evidence is agreed upon, and the question is how far one takes it).
As mentioned, in the regulation of the market we find teleological reasoning and purposive interpretations. For example, would you regulate a famous thief (where the taker is guilty, and therefore there is no reason to worry about him at the expense of the public), or a robber (prevalence of the problem)?[1] And so on.
D. Market regulation inefficiencies
introduction
In this chapter, we will discuss the implications of the various understandings of the market regulation. An obvious implication concerns the laws of sufficiency, at least with regard to sufficiency in the interpretation of the regulation. We will focus on two sufficiency issues that arise from the dispute among the jurists: 1. The market regulation of a notorious thief. 2. The market regulation of a mortgage whose value is less than the loan value.
The controversy over a famous thief
In the Gemara itself, there is a dispute as to whether they made the market regulation for a buyer from a notorious thief. In Halacha, too, the poskim disagreed as to whether they made the regulation for a notorious thief or not. We also note inShulchan Arba'ah And the Rema, S. Shenu, said:
And if he is a famous thief, they did not make him a market order, (Sad column in the name of Rif and Rambam) And the owner does not give the thief anything, but the thief returns and makes peace with the thief and takes from him the blood that he gave him. Haga: And in the case of a famous thief, they made a market regulation and one must return the money to the buyer, unless the buyer knew that the thing he bought was stolen, in which case one must return it without bloodshed (Tur in the name of the Rosh and Ri).
AndShch There, SKO brought opinions here and there:
And the thief was killed, etc. – And so, according to the Rashal, the opinion of the Rif, which was brought by Mimra Darba, and not by the author, according to The Rashbal there 20 is not proven by his words from the hand of the Rabbi, his words are urgent, and also his statements to the Rashbal. Another Maharam's response in Mordechai in the book of the ship, which was written to the Hadiya and the late Rabbi, and which was written to exempt Leah because of the market regulations, is it not true that they did not make the market regulations for a thief and a famous thief, etc. It is famous that the MM is in the matter of the law of the s.l. that they did not make the regulation of the market, because according to Lakman, s. 69:20, it is simply that one who takes from a robber is judged as one who takes from a thief. If he is a known robber, he must return it to its owner, and he will sue the robber, and if he is not famous that they made the regulation of the market, etc., and he is pressing him specifically against the robber, s.l., and moreover, we do not find any difference in this regard in any ruling, and moreover, that he is judged as one who takes from a thief, meaning that the same law applies to the thief.
Doubtful rules in general
We have found that there is a question here as to whether or not they made a market regulation for a famous thief. What is the ruling in the case of doubt about the regulations of the Sages?
The main source for the law of sufficiency in regulations is in the answer of Rabbi Si' Yad, who writes:
Even if the language was doubtful, her husband was certain and the heirs of the woman were doubtful, and there is no doubt that he will be released from the hand of certainty, as they said in the Yevamot chapter of the Exodus [372], and therefore the law is with the defendant.
The reasoning here seems to be from the standpoint of no doubt excluding certainty. The law is certain, and the regulation is a doubt that comes from excluding certainty, and therefore doubt about whether something is included in the regulation or doubt in the interpretation of the regulation is based on the law.
The matter was also decided in theShulchan Arba'ah Abba Zechariah 6:18:
Anything that is not explicitly stated in the regulation, we will base on the law of the Torah. Likewise, if there is any doubt about the regulation, the wife's heirs must bring evidence that the husband's inheritance is not sufficient (in the name of the R.'s answer).
In other words, in case of doubt about a regulation, the law is based on Torah law. Therefore, it seems that in market regulation, in every case of doubt, Torah law must be applied.
The rule of doubt in market regulation: Opinion of the Shach
As mentioned, theShch It is decisive, as is the Maimonides' method, that they did not regulate the market for a famous thief. However, at the end of his remarks there, he adds that even if we treat this as a spicah, the decision does not change:
Thus it seems that since the regulation of the market is a regulation and the state must return it free of charge, you have nothing but what was regulated and you should not add any additional cost and we will not do the regulation of the market in the case of a famous thief.
He rules that in fact a notorious thief should be treated as if he had not been subjected to the market regulation. The explanation is that this is a regulation of the Sages, and from the principle of the law the object should have been returned to the owner free of charge, there is no money, and therefore the law should be left as it is. This is like the principle of no doubt excludes certainty, which we saw above inShulchan Arba'ah: There is certainly ownership of the owner from the owner, and there is doubt whether they made a regulation to remove it from him, and there is no doubt that removes from the owner a certainty. In other words: the regulation is a renewal, and you have only what is clearly renewed, and nothing more. This is a slightly different formulation of this rule (not exactly like the rule that there is no doubt that removes from the owner a certainty).
He then discusses a Gentile thief and other situations, and the approach is the same: one must rely on the law of the Torah.
If so, there are two possible formulations in understanding theShch:
- There is no doubt that it is definitely overpriced.
- You have nothing in it but its innovation. Or 'a better answer'. There is a general rule that in interpreting regulations, one must take the narrowest approach, since the regulations are an innovation.
One of the implications is in regulations that are not monetary (they do not have two sides). An interpretive rule also exists regarding such regulations, but there is no doubt that a rule that is more certain than the one stated in relation to a monetary dispute is perhaps one that is stated in relation to a monetary dispute.
It is possible that these two formulations depend on everything we have seen above. If indeed the regulation is simple justice, then it is not correct to say that there is innovation in it, but on the contrary the gist of the law is innovation. In this view, it seems that after we have amended the regulation and introduced it into the formal law, it should now be applied as broadly as possible, since we have an instrument to act justly and truly.[2] That's why maybe the writerShulchan Arba'ah There is a rule that in formal law only causal laws (=legal facts) are included, and teleology remains outside the main law, until the sages bring it in, and no doubt excludes certainty. De facto, interpretation should be as narrow as possible.
Although the rule undoubtedly excludes from the hand, it can certainly be applied even if this regulation reflects justice and fairness, since in the Torah, there is a given halakha and there is doubt as to whether the regulation excludes from it or not.
And the NPM is in regulations whose subject is a response to certain circumstances (and they do not reflect justice, and certainly not absolute justice), where we will apply this rule, even if the formulation is 2. But in regulations that contain justice, then only formulation 1 is acceptable. And the NPM is for regulations such as market regulation that expresses true justice in practice (teleology).
And regarding the ketubah, we must discuss the purpose of the ketubah regulation, whether it expresses some absolute justice, or a local response to the situation that has arisen. Simply put, there too, it is a regulation that expresses justice and not a local response, and therefore the possibility of narrowing down the interpretation is only by virtue of formulation 1 and not by virtue of formulation 2. Therefore, we really found in the Baran precisely the formulation that no doubt excludes certainty.
In any case, according to both formulations, it follows that wherever there is doubt about the rabbinic ruling, the Torah law must be relied upon. Ostensibly, this is also true where the rabbinic ruling instructs us to the contrary. This is a different type of rabbinic ruling, in which the matter is relied upon by the Torah law and the one who comes to exclude it by virtue of the rabbinic ruling has the burden of proof that there is such a ruling. In fact, there is no truly rabbinic ruling here, but rather a rabbinic ruling that is beyond doubt, or a rabbinic ruling that in every rabbinic ruling, the interpretation must be interpreted as narrowly as possible (you have nothing to do with it but to innovate it).
A general note on the better Sho'at
Many times we make mistakes in applying the rule 'Sho"at is better'. Sometimes logic dictates adopting an expanded interpretation, and it is actually the Sho"at. For example, in the dilemma of separating Siamese twins. The criterion is a minimum price, but the price is determined according to the violation of justice and fairness, and not necessarily the severity of the offense (whether it is in the Ko"at or the Sho"at). The dilemma of a discarded baby regarding Talmud Torah.
In another wording: It is clear that it is right for him to pay the money, although there is doubt as to what the law says about it, and in this statement, there is no doubt that removes certainty (as if the owner of the property had reason to believe that the owner of the property was justified by the law).Hazo"a(See the booklet on legal arguments.)
In general, we must discuss the sufficiency of the law: should we always decide according to the rules of sufficiency, or is it that when there is doubt, there is room for leniency or to do what is just according to one of the opinions? In the sense of "it is fitting for a Rabbi to rely on him in times of need." And a distinction must be made between prohibition and permission and between wealth and possessions, etc.
And we also saw above that in regulations we interpret them according to purposeful considerations, and therefore it is not wrong to decide in this way even in situations of doubt.
The rule of doubt in market regulation: opinion From the Maharit
In the Responsa Maharit Ha-Bab, Ch. 6, 12, he also discusses this controversy. The case there is a situation where a tax collector took property belonging to Jews from their messenger who died on the way. The question is whether it is possible to deduct from the person who bought it from him, since there was a public boycott against buying such property, and several other aspects by virtue of which it appears that this is a famous thief's law:
May our Lord teach us about an incident that happened when some Jewish merchants sent tablets of the third century A.D. to Vinicia by a certain merchant. On the way, near Ai, the said merchant was killed. The tipitidad of that city came and took for his kingdom all the property that the said merchant had with him, both his own and that of the Jews. The property of the Jews was visible and known because their names and marks were engraved on the tablets, according to the custom of the merchants and the crowd in that city. They decreed by force of agreement that no Jew would buy any of those goods, since they were clearly those of Israel, until their owners came to inquire about them. Some people did not feel the need to agree and went against the law and bought some of the goods themselves. The tipitidad also did not hesitate to wait until their owners came and sold them immediately for a very low price. Although the judge in the city had sent and warned him that he would do something illegal, he did not listen to him and did as he pleased. The questioner asked, "What happened to this?" A famous thief, and there is no market regulation involved, and the Jews who bought those goods must return them to the owners, bloodless or not.
So much for this case. The Maharit states that this is a famous theft case, and cites the disagreement of the Rishonim regarding it:
Answer to the theft in Tera Gerasi, Rava said: A famous thief does not have the effect of the market regulation. Itamar stole and paid for his debt. A thief and paid for his debt. There is no effect of the market regulation in it. And every mortgage, and the zabin between equal and equal, and between equal and greater, they made the market regulation in it. And the halta in all its forms made the market regulation. Bar from a thief and paid for his debt. A thief and paid for his debt. And in Torah Si, Sh. 6, it was written, but a famous thief does not have the effect of the market regulation in it, etc. Thus wrote Rav Alfas and the Rambam z"l. But R. Y wrote, "In a famous thief, they made the market regulation in it, unless the taker knew for certain that it was stolen, then he must return it in cash." And Rabbi Mahary Karo wondered about the column and the Maimonides, why he wrote that the Rifa ruled as the Rambam, since the Rifa copied the words of the Gemara and the halacha in its entirety, Esau 55 bar meganab and pera, etc., and it is possible to interpret it as believing, as the words of the Torah, that if a thief publishes Esau and sees a devadiya, it is proven, as the Dahabi of the Rifa, Zal, in the Hala of Mimra Darba, if it is a daf with a thief published, Kamer daashu, he did not have to bring any substance, and just as he did not bring a plelogta Darba and Rav Sheshet from the Zivban of them in the Mena, but wrote and the halacha in its entirety, Esau 55 bar meganab and pera, etc.
If so, in his opinion there is a definite conclusion here (and he is more reasonable than what theShchTheShch As is his custom, he annexes the whole world to himself.) And according to the law, he decides thus:
And regarding the halakha, Ika Midik Yahi, the servant of
So far, it seems to be decisive enough, as per the opinion of the Rabbis and the Rosh, who made it a market regulation. Its starting point is that the taker is the owner, who wants to take the object from the taker free of charge, and the taker should not be taken away without blood. This is halachically clear.Shch The above.
But then he raises an opposite possibility, which agrees with the opinion of theShch:
And here is the reason why, finally, you are moving me to compile the existing ones of the Lord in the capacity of their owners, and why is it that the blood that I gave you shows that the law has become very weak, and the market has become very quiet.
Here the assumption is that the holder is the owner, since the object must return to him in any case (whether there is market regulation or not), and the entire discussion is only about the money, and with regard to the money, the holder is the owner, and therefore from this possibility it follows that there is no obligation to compensate the taker.
He cites two pieces of evidence for this. The first is from the Bible:
The one who receives orphans said, "We have praised Him," and the Bible says, "Your father has praised us, and we have said, 'Because our inheritance is permanent, as if we had blood, and because of blood, there are signs of vision, etc.'"
The discussion is whether a beehive can also collect from the praise or not (because praise made by orphans was not enslaved to a beehive). And the second is 24:2:
And in the case of a dog, he will not dig up the top of a tree near the city. If it is a doubt, it is a dog, etc., and it is a dog that cuts down and does not give blood. The dog is a dog because it is a dog that has blood, and because of blood, it is a sign of vision.
Both cases appear in the issue of BM 11:1-12:1:
Orphans say: We have praised him, and a debtor says: Your father praised him, who is obliged to bring evidence? Rabbi Hanina explained to Mimar: I will see that the orphans are in possession of a permanent inheritance, and the debtor is obliged to bring evidence. That grandfather said to him, this is how Rabbi Yochanan said: The orphans are obliged to bring evidence. What is the reason – I will see, since the debt is permanent, just as a debt is a blood debt, and the orphans are obliged to bring evidence. Abaye said: Even I have given: This doubt is before and this doubt is before – he cuts and does not give blood. Otherwise: Since the debt is permanent – they said to him: Bring evidence and weigh. This is how I have given, I see that the debt is permanent – just as a debt is a blood debt, and the orphans are obliged to bring evidence.
Indeed, the Mahrit further writes that it is possible to divide the subject matter of the case into these two cases, since both involve land, and in our case, it involves movable property, and the taker is seized by the object, and therefore it is as if he has made a judgment for himself in the property (meaning that the object itself is considered property seized from him, in return for the compensation):
And there is no division, even if I am a movable property, in which case the seizure is to the extent of their value, and there is no compulsion to remove without evidence. In addition, a tree has a lease with its owner on the land attached to it, and it is convenient for him to have it without blood, and this matter requires a decision.
In conclusion, it seems that he remains in doubt between the two options.
Finally, he raises another side of doubt, that this holding is not at all useful because it is a perception in doubt, since in any spiqa dedina perception is not useful. He cites from the Rosh in the BK that perception requires a certain claim (meaning that doubt should only exist with the BKD):
And also not for the sake of attacking the priest, the priest of the temple, who was demoted from his hand because of the perception of doubt, he is here, what he held in his movables because of the perception of doubt, as the Rosh z"l wrote in the temple, how the foot on the back of half the bundles of damage.
Rosh P'B in B'K Si' B wrote that in the case of a spiqa dedina, a tsep' is not useful because the tsep' itself is in halakhic doubt. However, the Maharit rejects this possibility, saying:
Dashani, here is Debhitra, come to her.
The Rosh speaks in a situation where the perceiver himself knows that there is a law of bundles here, and he knows that the Gemara is doubtful, and he perceives in order to gain. This is called the perception of doubt (and perhaps similar to another perception that is born of doubt. Although itShch onAttack Cohen This should be discussed, as the doubt arose in the Bible that is being discussed now, except that there he was corrected in the Gemara itself, and for all of us, he did not consider it a perception after the doubt arose.
The Maharit says that the discussion does not concern the Rosh's judgment, since here the seizure was with permission. The tax collector took the money and the person who bought it from him thought that he was legally allowed to keep it (he did not know at all that it was stolen property). And so in every case of a buyer from a notorious thief, at least as long as he does not know that the object was stolen, it is called shibhitira ata lydia. The Maharit says that in such cases, seizure is also beneficial according to the Rosh's opinion.
It is not clear whether the Mahrita remains in doubt between the two options for understanding the law in our country (who is the holder), or whether he is taking the second option (asShch), but it is not clear to him whether the taker is considered to be held in possession of the object in exchange for the blood money or not. The difference is that according to the first possibility he raised, the taker is held in possession of the object itself, and here he is considered to be seized in possession of the object in exchange for the blood money owed to him.
Two options for understanding market regulation
Within the words of the Maharit and Reka, two options for understanding the regulation of the market arise, and we will present them now:
- The object remains the owner's as in Torah law, but according to the rabbis, he must compensate the buyer when he takes his object from him for the loss he suffered from the thief. From this it follows that the object, by all accounts, belongs to the owner, and the entire discussion is only about the obligation to compensate, and therefore the owner is the one held in money, and the burden of proof is on the taker. This does not concern the difference between Torah law and rabbis, and this is how the ruling would have been even if everything had been according to the rabbis.
Although it appears to be similar to what is apparent fromShch, but it seems thatShch He himself did not learn the matter that way. WhatShch It seems that this is not a matter of established law and the burden of proof, but rather a question of interpreting the regulations of the Sages. He claims that when in doubt about whether there is a regulation, one should always rely on the law of the Torah, and not add to it (you have nothing to do with it but to renew it). If so, here too, according to the Torah, there is no regulation of the market, and there is doubt whether the Sages regulated it. In the 23rd, it is based on the law of the Torah that there is no regulation of the market.
Ultimately, there is also another possibility in the Maharit in this direction, according to which although the one who is held in possession of the object is the owner, the one who takes it is seized in exchange for the blood, and so on.
Although up to this point all of these explanations lead to the same halachic conclusion, it now appears that, according to a different understanding of the regulation, a difference can arise between them.
- Rabbis grant the buyer the object, and the obligation to compensate the taker is merely a consequence of his being the owner of the object. This is what the Hadiya suggests from the first possibility presented in the Maharit. In fact, this is also what the third possibility suggests from him, since the taker is indeed considered to be in possession of the object, but not because it is his, but because he physically possesses it, and this is considered to be the seizure of blood that is owed to him. Here too, the assumption is that the object is in the possession of its owner and not in the possession of the taker.
It is not clear, however, if this is indeed the understanding of the market regulation, then why is he obligated to return the object at all? This is because at the time when the sages prescribed taking ownership, they also gave the owner the right to force the taker to sell the object back to him.
According to this view, the owner is not the one held. After all, on the side that did regulate the market, the object itself is also available to the taker, and there is not only an obligation to compensate. In other words, there is doubt here as to who the object is, and therefore the owner is not held.
In fact, from the language of the Mahrit, it seems that this is how he understood it all along. Even later in his remarks, when he suggests that the owner is the one being held, it is only because according to the law the object certainly returns to him, and the question is only about compensation. But the argument is based on the facts (that in practice in any case the object returns to its owner) and not on their halakhic interpretation (that in fact the owner is the one being held).
It should be noted, however, that if we understand that the regulation is to give the object to the taker and there is no obligation of restitution but rather an obligation of sale, then it is incorrect to apply the ruling of Ilan and Orphans here, since there is indeed an obligation of restitution in every case. Therefore, it is reasonable to understand that the Mahrit did not truly understand that they gave the object to the taker, but only imposed an obligation of compensation, and this is wrong.
And indeed, in the glosses of Reka on theShch There, he wrote:
Note: In the answer of the Mahrita Chahom Sib, this is a question of the Dadina Sipika, where it is sufficient to state that the island, if it is necessary to return the object anyway, with regard to the money, the one who issues it is accidental. And the money of providing an ancient tree or a completely taken movable thing is not enough for the island at all.
It is clear from his words that he understood that the Mahrit's doubt stems only from the practical obligation to return, but even with this, the perception is still that the object is in the possession of its owner and that the repair is only an obligation to compensate.
And so it is indeed according to the Hadiya of Rashi, BM 112b, who wrote:
Doubt – In Baba Batra (24:2) on a tree planted within fifty cubits near the city, and cut it down: If the city is ahead - cut it down and does not give blood, this doubt is ahead, this doubt is ahead - cut it down and does not give blood, Alma, because between the highest and the lowest to cut it down, because the tree is ahead, cut it down, because it is ahead - they said: What is your soul, that you must do, doubt is found to be laid on the blood and not on the cutting of the tree, as if on the top of a tree near a single pit, cut it down, on the top of a certain Didya: if the pit is ahead - cut it down and gives blood, if the tree is ahead - do not cut it down, on the top of a doubt is ahead and this doubt is ahead - do not cut Alma, on the top of a doubt is a tree of Deir, because - because of silence your soul is about to be cut down, and here is Nami, between orphans who have blessed and their father who has blessed – It is permissible to take land with the praise, and if the orphans have praised it – the praise is given to them in blood, as follows: Go back and see what your soul desires, and the orphans will be asked to take it out of it, and they will have to bear the evidence.
Here too, the consideration is practical, since he is going to cut down the tree in any case, so the discussion is only about the blood. The claim is not that the tree does not belong to him or anything like that. Although regarding the orphans, the Gemara's argument can be interpreted in both directions, but from the analogy they make with the tree, it is quite clear that they understood it as a marit there too.
And we see a Mashi in the issue of the Bible regarding the tree:
This is Dudai – Let us not cut down the tree, but let us not take blood as a sign. If the tree is cut down first and gives blood, let us not say to it, "A thorn, a thorn, is sufficient for your need." And when it comes to collecting blood, let us say to it, "Bring me evidence that you have come before and weighed it."
Now we must discuss what will happen here according to the direction of thought of theShchAs you remember, theShch He stated that there is a rule to reduce the regulations of the Sages as much as possible, and in case of doubt, the law of the law should be established. This consideration is not sensitive to the difference between the two understandings in the regulation. If so, from this consideration it follows that according to the two understandings provided, there is no regulation of the market in a notorious thief, and therefore the object must be returned without bloodshed.
Furthermore, according to this, there is no evidence from the issue of "BM" and "BB", since there it is about the laws of possession, but here there is no room for considerations of possession, but the question is interpretative: is there a regulation here or not?
If so, then we have a difference between the two formulations of the Maharit and theShchThe consideration of the Maharit, which speaks of ownership, is sensitive to the question of how we understood the regulation of the market. But the consideration of theShch Indifferent to this distinction. That is, according to this approach, a difference is created between the two formulations of the decision considerations presented above.
The relationship between the two explanations
Why even assume the second explanation? After all, it is less simple, that is, it assumes an unnecessary assumption. The goal of the Sages was to obligate the owner to compensate the taker, so why is it even logical to assume that they also corrected the ownership of the taker?
It seems that the reason is that the sages wanted to cast the regulation into a halakhic pattern like the Torah (a causal rather than teleological pattern). They determined ownership, and from it they decreed an obligation to pay. According to the first option, the obligation to compensate the taker is not for the price of the object but for the money he paid to the thief. And this is strange, why impose this obligation of compensation on the owner? And because if the object was bought for the taker, then the payment is not compensation for a loss, but the money for the object. It is a right to buy the object.
And the NEPAM is for the taker who wants to leave with this object, a Lulav, etc. (the law says 'to you'). According to the second method, it is truly his (at least according to the law that the rabbinic law grants to the Dauraita), and this is the very logic of the market regulation, that he will have certainty in his ownership of the object, at least as long as there is no appeal against it.
In explaining the first method, it should be said that the sages do not tend to intervene at the level of legal facts, and therefore ownership remains with the machine. Their intervention is in determining the obligation of the owner to compensate, etc.
A proposal to explain the root of the dispute
We have seen that in any doubt regarding market regulation, the law must be considered in terms of two considerations: 1. The rule of narrowing the interpretation of regulations (theShch2. Rules of ownership (Mahrit and Reka).
We have also seen that according to the Maharit, the decision can depend on how we understand the market regulation itself. According to theShch This is always for the benefit of the owner (no matter how we understand the regulation).
But when we look again at the first dispute regarding a famous thief, it seems that it itself may depend on understanding the essence of the market regulation. If the regulation is as the first formulation, then there is only an obligation of compensation on the part of the owner, and it makes no sense to amend it to compensate the taker for an act of foolishness that he committed. In the case of a famous thief, the taker himself should have been careful, and therefore no obligation of compensation should be imposed on the owner. But if the market regulation is a determination that an object that was lawfully purchased (even if without a comprehensive inspection) belongs to the buyer (for reasons of efficiency), then the object now belongs to the taker. And even if he bought from a famous thief, as long as he did not know that the object was stolen, then the object is his, since this is a general regulation for the management of the commercial market. And indeed, the first ones themselves added that if a buyer knew that the object was stolen, there is no market regulation, since ownership is given to him only if he bought in good faith (although perhaps this is also true according to the concept of compensation, since if he knew that the object was stolen, then the money he gave to the thief is a gift, and therefore he does not deserve compensation for it).
The difference is in the question of whether the regulation of the market is an obligation to compensate for the damage caused to him by the thief, in which case if he had been careful there is no obligation to compensate, or whether there is a perception here that due to the efficiency of the market, every object that was lawfully purchased should be given to the taker, but he should be required to sell the object to the owner. The question is what is the nature of the owner's payment to the taker: compensation for damage, or the price of the object.
And if we are honest, it turns out that this dispute between the Rishonim and the Poskim itself revolves around the two options for understanding the regulation of the market. According to Maimonides, who did not regulate taking from a famous thief, he apparently understood that the regulation is an obligation to compensate, not envy of the taker. Perhaps, in his view, he is mistaken in what he is adopting, since there is also a reverse obligation to compensate in the event of despair, where the taker who bought the object must compensate the owner with money. The regulation of the market does not concern the laws of ownership, but requires compensation in tort law.
And according to the Rabbis, who also regulated the market for a famous thief, he apparently understood that the Sages bought the object for the taker, and what the owner pays is the price of the object. He has the right to buy and not an obligation to compensate.
Logical loop in this particular doubt
Now the question arises as to how this dispute itself should be decided? According to theShch There is no basis for this, and the interpretation must be narrowed. Hence, in case of doubt, the Torah law must be relied upon, and therefore the law is that they did not make the market regulation and the object must be returned to the owner without payment.
But if we decide it according to the consideration of the Maharit, it will turn out that these two parties also perceive the ownership differently, and not only disagree on the law. In such a situation, it is impossible to distinguish between them based on considerations of ownership, since these considerations themselves depend on the dispute.
In other words: when the Mahrit decides according to the owner's ownership, he assumes that the perception in the market regulation is that they imposed a duty to compensate and not that they purchased the object for the taker. Therefore, in his opinion, there is doubt whether they imposed a duty to compensate, but the owner has ownership of the property, and therefore the burden of proof is on the taker. But this in itself already assumes the understanding of one of the parties in doubt (that there is no remedy for a notorious thief). In other words, this is a definitive decision and not a decision based on the laws of sufficiency. Certainly, this is not what he intended, and it seems that the Mahrit did not understand the dispute in the Rishonim in this way.
Furthermore, it is also possible that inShch He can agree with the Maharit with regard to the concept of market regulation, but in his opinion this dispute among the Rishonim cannot be decided according to the Maharit's proposal, since this itself is a dispute among the Rishonim. Therefore, theShch Here, I am specifically raising the consideration of the restrictive interpretation, since it is beneficial to decide the dispute anyway. It is possible that in disputes that these parties will not be satisfied, perhaps theShch Will accept the decision considerations raised here by the R.I.T.
In fact, there may be an explanation here as to why theShch Does he not rule according to the issues he brought from the Rit (B"B" and B"M)? Ostensibly from the Gemara there it seems that even if the possession is of the taker, since in practice the object will return to the owner, the issue is only the money, and therefore the question of possession is determined according to the possession of the money. If so, theShch It seems to ignore these issues. But according to our words, this is not so, because here the dispute itself is whether there is a retention of title to the owner or not, and this does not belong to the practical consideration. In another wording: If the regulation transfers ownership to the taker, then it is not true that in any case the object returns to the owner, since if he does not pay, the object will not return to him. Therefore, theShch Claims that, at least according to one of the parties, it is not true that the ownership belongs to the owner.
A security deposit whose value is different from the loan value[3]
There is another disagreement among the Rishonim regarding the regulation of the market, and it concerns a pledge that is in excess of the loan fee. It is interesting to see what is done about it. Maimonides in the book of the 16th century writes:
The stolen property, whether it is mortgaged for more than its value or for less than its value, is given to the owner of the mortgage and returned and settled with the thief, unless he was a notorious thief, as we explained. +/Obtaining the Rabada/ The place of theft is between the one who places it in Beitar on the basis of the blood. A. A. In order to have blood.+
The Rambam and the Rabbis disagreed regarding a pledge whose value differs from the value of the loan. According to the Rambam, they regulated the market, and according to the Rabbis, they did so only on an equal basis.
AndMLM There he broughtin me The Rambam emphasized that in the event that the pledge is worth less than the loan, it is clear that the lender did not lend to him based on the pledge, and therefore it is unlikely that they were regulating the market in this way:
The place of theft, whether it is located in Beitar or in Damiia, etc.The difficulty of Maran B.I. Si', 66, 68, 688, and 688, was that it was appropriate to say that the law of the market was fair, and that when the mortgage was more than its value, it was certainly not a mortgage, but a mortgage of the same value, as the law of the land says.
And immediately afterwards he explains that the Rambam follows the method ofcolumn:
And the late Dathur, the late Azil, according to his method, wrote in the sign of the sixth chapter of the seventh chapter that he held a mortgage and claimed more than his blood money for it, and that it was worth more than the loan. And so they said that in a mortgage, even if it was less than what was borrowed, the market regulation was applied to it because of the blood money for the mortgagee, the mortgagee was worth more than the loan, and they knew that the mortgagee was not a slave or a slave, and they said that Mordechai Metzia (page 149, end of the sixth chapter) about the one who claimed more than his blood money for the mortgage, and that it was worth more than the loan, and they brought evidence for this law from the chapter on the thief, because they said that they were innocent and went to all of them, and they made the market regulation on it, except for a thief and paid his debt, because of a seller and a pawn, and even if the mortgage is worth one hundred shekels, he takes a loan from the owner of the house and the owner of the house from the thief, except for a thief and paid his debt. This means that from these words of Mordechai, when a mortgage is made, the market regulation makes it even less valuable than the loan, because of the inability to say to my friend, "It is worth it to me":
He is the one whocolumn He goes on to say that the mortgagee can say, "It is worth it to me," and claim that I knew that the mortgage was lent to him. And he brought up that Mordechai also did the same.
And he barely finishes on thein me:
And so the Hadra Qoshin to the Dukha Damai was made difficult for him to recite the words of the Tur in the 6th century, since the Tur is one of those who believe that both of them admit the loan of the word "Damir" to me, and even our Rabbeinu z"l, although he did not express his opinion on this anywhere, did not say that the word "Malwa" to me, and another who did not express his opinion to the contrary, we can still say that the Rav and the Ramban did not disagree. And so the Rav's question to the Rav from the Didiya Adiya is that the Rav means that he is one of those who believe that the word "Malwa" to me, and while here in Perkin he reached out to our Rabbeinu and wrote in order to compare it, and perhaps the Rav who brought the Terumot to us, namely the Rav in the Hashgot and Tsa:
And his question remains: if indeed thein me He himself is aware that there is an explanation of "in my opinion it is worth it to me," so what is so difficult about the Maimonides ruling that when the value is different from the loan, there is also a market regulation? He does note that the Rambam here also made it difficult for the Rambam, and after all, he himself holds the opinion that there is room to claim "in my opinion it is worth it to me," and what a contradiction in the Rambam.
And3 days In the issue of BK Ketu Aut B, he wrote that the Rav's method is that in a mortgage whose value is less than the loan value, the owner does not pay the lender anything, not even the value of the mortgage. It is true that some have understood the Rav's method to mean that, depending on the value of the mortgage, he must certainly be paid, and his understanding of the Rambam is that he does not have to pay him the entire value of the loan. And the Rambam's opinion is that he must be paid the entire value (explaining "in my opinion, it is worth it to me").
Of course, according to the3 days It seems difficult to accept the Rabbi Adidiya's advice. But on the other hand, we see that the problem is not the value of the pledge but the regulation of the market, and therefore there is a hint here for resolving the contradiction.
AndEmri Hatzvi There he wrote to explain the method of the Rabada, which in this case did not mention anything other than equal to equal (2dk. 5).mm and so on), and therefore there is doubt whether the market regulation is applied even in a situation where the mortgage is worth less than the loan. In other words, there is doubt whether we have fixed the amount that exceeds the value of the mortgage itself or not. Therefore, there is no contradiction here with the opinion of the Rabbad, which has the reasoning "to me it is worth it." Although there is such a reasoning, it is not clear whether the market regulation is to that extent, and the burden of proof is on the issuer.[4]
He adds and explains that the mortgagee is held to the value of the mortgage, and therefore he accepts that, but everything beyond that is disputed and the burden of proof is on him. This is indeed his conclusion, and therefore he adds that he does not understand how the3 days He concluded that the RAB had been completely dismissed.
It is not clear whether his intention is to claim that he is held because this is certainly what the market regulation has been established for, or whether he is held in possession of an object in exchange for money (as the second interpretation of the Maharit), which is more likely in his opinion (for if this is not common, then perhaps the market regulation was not established at all in the 23rd century, and the Torah is justified in it).
In any case, if we understand that the question is a narrow interpretation of the regulation, then it is certainly possible to understand the3 daysWe interpret that the regulation does not apply to a pledge that is not equal to the other, since there is a side that such a pledge is not common, and in any case there is no holding here at all. The owner is held in the object, and with regard to the money, the burden of proof is on the mortgagor, and we interpret the regulation narrowly.
In any case, if we understand that the regulation was to give the object to the taker, and the obligation to compensate is not compensation for loss but rather payment of the price of the object, then here, if we have not corrected the market regulation, it is certain that the object is being held in his hands unlawfully, and the3 daysOwner Emri Hatzvi He assumed that the obligation was a duty of compensation and not that the owner should be compensated. Perhaps this is where the Rabbinical Council disagreed with the Maimonides, since we saw that the Maimonides held that it was a duty of compensation. We also noted that he also follows his approach in the Ha-Hag, where he extends the duty of compensation in the regulation of the market to cases of despair. And there the Rabbinical Council disagreed with him. Although the Rabbinical Council does not disagree with him in that they did not compensate a notorious thief (but for the Maharit, this is not really the point of contention, since in his opinion, according to the Ha-Hag, the owner is the one who is held).
Furthermore, even if you bought him ownership of the object, this still does not mean that he can now collect as much as he wants (explaining "it's worth it to me"), since the owner can force him to sell the object to him, and who would dare to assume that you did not buy the object for him at its true value?! In the case that the Rav and thecolumn The one who can say "it's worth it to me" is saying that the holder of the mortgage wants to hold it as a debt, and the borrower wants to redeem it with their money, which is less than the loan. And to this the lender says that in his opinion it is worth the amount of the loan and therefore does not want to sell it to them at its normal value. This is a completely different situation.
It is unlikely that a person could claim against the owner that in his opinion it is worth millions, thereby neutralizing his obligation to sell the object back to the owner (although it must be rejected that there is some basis for his claim here, since he lent him a large sum on this pledge. But why should his opinion determine the value of the object at all?). Therefore, it is clear that when the sages forced him to sell the object to the owner, they also determined that it would be sold at its value.
But all of this can be understood differently. If the regulation of the market was an obligation to compensate the borrower for the loss, then we must examine what the loss was, and then there is a place to oblige him to pay the value of the loan and not the value of the pledge. Therefore, the Maimonides says that the owner pays him the value of the loan. But if the regulation was to buy the object back, then it is reasonable to buy it with his blood and not with the loan money (from the explanation above). And this is the opinion of the Rav (if we do not go as3 days).[5] In other words, there is another difference here between the two concepts of market regulation, and not necessarily in the question of how to solve the problems in market regulation, but in its actual understanding.
[1] The consideration of prevalence is important and essential, and so is the case with other rabbinic laws, since the regulation infringes on someone else's rights (which are due to him by the rabbinic court) in order to promote a public interest (free trade in the market), and therefore they should not be infringed upon when the public interest is not prevalent. The same is true of other rabbinic regulations, the assumption being that Torah law should not be changed except in situations where the interest is clear and broad.
This is essentially the explanation of the rule, "A word that is not common is not ruled by the Rabbis." Although, where the regulation promotes a real and important interest that does not have the cost of violating rights, there perhaps is room for its application even in a place that is not common. And this is the reason for all the various differences we found regarding the law of "missionary" that is applied even in a place that is not common, even though they basically stated that it was amended only in a place that is common.
[2] And see the article on the decree of the scripture, where we discussed several possibilities for applying the rule, "You have nothing in it except its innovation." Sometimes it is not used at all, when the innovation is clear in the explanation (and the innovation in it is from another side).
[3] See Emri Hatzvi H.G., on the issue of B.K. Ketu A.A. (S. 29, S.K.B.-3).
[4] In the dictionary, the name of the owner Emri Hatzvi He brings evidence for this from what the Rema did not dispute.Shulchan Arba'ah Si's shun 57, who wrote there that in the case of a famous thief they did not make a settlement in the mortgage, and the Rema did not comment on anything, although he disagrees with the author regarding a famous thief, as we saw above. And the author explains Emri Hatzvi The Rema does not disagree here because here it is based on doubt, and even in the case of a famous thief it is doubtful, and therefore, in his opinion, they did not regulate the market in a mortgage that is not equal in value in the case of a famous thief. And he does a good job in explaining, and so on.
[5] And it is clear that there is no contradiction from this to his theory that the mortgagee can say "it is worth it to me," because there he took the mortgage against the loan, so he determines its value. But here he took it from the thief and not from the owner, and how can we say that we have fixed for him that he can claim an increased value even against the owner?!