Q&A: Acquisition by Riding in a Place Where Custom Is Effective
Acquisition by Riding in a Place Where Custom Is Effective
Question
Hello Rabbi,
In tractate Bava Metzia 8b it says as follows:
“I heard from Master Samuel two rulings: in the case of one riding and one leading, one acquires and one does not acquire, but I do not know which of them it is. What are the circumstances? If we say one is riding alone and one is leading alone, is there anyone who would say that one who leads alone does not acquire? Rather, if there is any basis for saying that one does not acquire, it is the rider about whom one could say this. Rather, the question was about a rider in the place of one who leads: what is the law? Is the rider preferable because he is holding onto it, or perhaps the one who leads is preferable because it moves by his power.”
But at the beginning of the tractate, in order to explain the Mishnah even according to Ben Nanas and Rabbi Yose, the Talmud says: “Say that they lifted it together,” meaning that there has to be a case in which both parties to the dispute each acquire half of the item, so that according to Ben Nanas there will not be a false oath, and according to Rabbi Yose there will not be someone who is certainly a swindler. But according to Samuel, in the case of a rider in the place of one who leads (according to the view that the rider is preferable), there is no possibility of acquiring half of the item. How does that fit with the Talmud’s explanation that “they lifted it together”?
Best regards,
Answer
When two people lift a cloak, they both performed the same act of acquisition, and there is no question of who is preferable, whose act is effective, and whose is not. The only question is who acted first and lifted it, or whether they lifted it together. Their oath concerns the timing of the lifting. And if they did not lift it together, one of them will be swearing falsely.
By contrast, in the case of one riding and one leading, there is doubt as to which of the two acts is the superior act of acquisition. Therefore, even if it happened at exactly the same time, the doubt remains in place, because whoever performed an ineffective act did not acquire, even if he performed it first. For this reason it is also clear that their oath would not be a false oath even if they did not lift together, since they are not swearing that riding or leading are effective acts. The judges will decide that. They are swearing that it is theirs, and in that respect there is no certain swindler.
The question is why we do not resolve from our Mishnah that the two acts are equivalent, since in our Mishnah we learned that rider and leader are like the case of the cloak. This is exactly what Tosafot, s.v. “or perhaps,” asks there.