Q&A: Two Holding On
Two Holding On
Question
"If two are holding a cloak—this one takes up to where his hand reaches, and that one takes up to where his hand reaches, and the rest they divide under oath."
By contrast, "If two are holding a vessel—they divide it under oath (without regard to where each one is holding it)." (Maimonides, Laws of Plaintiff and Defendant 9; and this seems to emerge from the Talmud—that for a cloak it was written according to how far his hand reaches, whereas for an animal they did not distinguish this way based on where he was sitting.)
If I understood the Talmud in Bava Metzia 7a correctly, the reason is that in a cloak every "three by three" is a significant item considered "as if separated"; that is, we basically treat the cloak like a lot of pieces of fabric, some of which are in the possession of the first, some in the possession of the second, and some in the middle and subject to division under oath.
A. Is there room to say that today, when we view a garment as a single unit (for practical purposes, most people do not recycle fabric, and would not be interested in half a shirt sleeve), a cloak would be considered like a vessel for this purpose—that is, they would divide it equally without regard to where each one is holding it?
B. As for the basic idea itself: since the enactment of the oath is because perhaps one person will go and seize it, what is the reasoning for giving a person extra rights based on how far his hand reaches, when it is clear that in a case of seizing, "how far the hand reaches" will depend on the physical strength of the two people fighting, not on their property rights?
Answer
A. It certainly sounds reasonable. After all, this is like one who is holding the fringes of the cloak, which is considered as though he is in possession of the whole thing.
B. First, under the basic law, each one has possession up to where his hand reaches. The Sages nevertheless enacted an oath because of the concern. So your question is not really about the law itself, but why the Sages did not make an additional enactment that they should divide it fifty-fifty in all cases. First of all, once they enacted an oath, that should solve the problem, and there is no reason to alter the basic law beyond what is necessary. Second, in a similar case the Rosh wrote that a person whose item it is will fight harder and prevail, even if the other person is physically stronger. Perhaps the same can be said here as well.