Q&A: The Burden of Proof Rests on the One Who Seeks to Extract Money in a Legal Doubt
The Burden of Proof Rests on the One Who Seeks to Extract Money in a Legal Doubt
Question
Hello Rabbi,
There is an opinion of Rav Hai Gaon that in a legal doubt they divide the money, and we do not say that the burden of proof rests on the one who seeks to extract money from another. I understood that most halakhic decisors disagree with him on this. But seemingly, from a logical standpoint, it seems more reasonable to me to say that they should divide it in such a case. After all, what proof are we expecting the plaintiff to bring? He brought all the required evidence, and it is the judges who do not know how to decide the law. If so, in a case where the judges do not know how to decide, why do they roll the ball back to the plaintiff and tell him to bring proof? If I were a judge and I were not sure what the law is, I would rule that they should divide it out of doubt.
At one point you taught us that the logic behind the reasoning of “the burden of proof rests on the one who seeks to extract money from another” (and “leave the money in the possession of its current owner”) is that otherwise society could not function, because any person could falsely sue someone else and obtain half his property. But in the case of a legal doubt, that reasoning does not apply.
What do you think about the view of Rav Hai Gaon?
Answer
I do not think that the requirement that the plaintiff bring proof is a personal requirement directed at him. The claim is that as long as there is no proof, it is impossible to extract money from the defendant. Therefore, even in a legal doubt, at the end of the day there is no proof that allows taking money from the current possessor, and therefore the burden of proof rests on the one who seeks to extract money.
The reasoning is a legal one: for a religious court to act, it needs a reason. And that applies here too. True, it is not the plaintiff’s fault that he cannot bring proof, but at the end of the day the religious court still has no reason to act.
Indeed, from the standpoint of the reasoning that anyone could sue his fellow, it is less applicable here (though not necessarily totally irrelevant. It seems to me that there could be situations in which there is a legal doubt and someone would exploit that in order to sue another person and receive half). But the reasoning is stronger that what is in a person’s possession is presumed to be his (“we do not presume people to be thieves”) certainly applies here as well.
Discussion on Answer
Note that here this is not a legal doubt but an unresolved monetary Talmudic question. According to those views, the rule of “they divide it” was not said regarding every monetary doubt, but only regarding a doubt that ends with the Talmud remaining unresolved. The reasoning is that when the Talmud remains with an unresolved question, that is like two against two, meaning it is a doubt that cannot be decided, and therefore according to those views they divide it. Here there are two equal sides in favor of the plaintiff and the defendant. Put differently: the purpose of a presumption is to determine reality, but when the doubt is left unresolved, it is clear that there is nothing here to determine. The Talmud has decided that there is not one single truth here, but that both sides are correct. Therefore the presumption has no significance, and they divide it.
As for “doubt is ruled leniently” in monetary cases, this is a common expression among the medieval authorities and later authorities, and it means lenient for the defendant. And Rabbi Shimon Shkop’s well-known question in Gate 5 is why we do not go stringently, as with any doubt involving a prohibition.
The question about a reason for the religious court to act is what counts as an act of the religious court. To divide is indeed an act, and therefore there are some medieval authorities who do not accept the view of the Rif and Rav Hai Gaon, and according to them here too the burden of proof rests on the one who seeks to extract money. The Rif apparently holds that when there is a legal doubt, that indeed is a reason to act (or that in his view this is not called acting, because there is no presumption in such situations as I explained above; in any case, there is no act here of extracting from the current possessor).
I am asking specifically about the case in Bava Kamma 62a, where a legal doubt is brought:
“Did they institute the ordinance of the robbery victim in the case of an informer, so that he swears and collects, or not? Let it stand unresolved.”
Tosafot writes:
“Did they institute the ordinance of the robbery victim in the case of an informer or not? Rav Alfasi wrote: for example, where there are witnesses that he informed on him and caused his money to be lost, but they do not know how much. It remains unresolved, and every unresolved monetary case is ruled leniently; and in the name of Rav Hai Gaon it is written that he swears and takes half, for every unresolved monetary case is divided. But Rabbenu Isaac does not think it appears correct to obligate him at all because of an unresolved question.”
Maimonides also ruled like the Rif. But what the Rif wrote, that every unresolved monetary case is ruled leniently, is difficult, because there is no leniency or stringency in monetary law (a leniency for one party is a stringency for the other, and vice versa).
In addition, regarding what you said that the religious court needs a reason in order to act: the very doubt itself is already a good enough reason for the religious court to act. After all, because of doubt, in some cases they do say “they divide it.”