Q&A: The rule of "the burden of proof is on the one seeking to extract" when the one currently holding the money is the owner's agent
The rule of "the burden of proof is on the one seeking to extract" when the one currently holding the money is the owner's agent
Question
In Shulchan Arukh, Choshen Mishpat 183:6, there appears a ruling that if the sender gives a sum of money to an agent in order to buy merchandise, and the seller leaves the agent with a larger quantity of merchandise than the agent could have bought with that money at the going price, the question is: what is the law regarding that gift? Does it belong to the sender (the owner of the money) or to the agent?
Rashi (Ketubot 98b, s.v. “she-yesh”) explains that they divide the extra between the agent and the sender, because we are uncertain whether the seller gives the gift to the agent by virtue of his having come to buy from him, or whether the seller gives the gift to the sender, because it is thanks to him that they came to buy his merchandise. Therefore, the agent and the sender divide it.
At first glance this is difficult, because if they divide it because there is doubt, why don’t we say that the burden of proof is on the one seeking to extract, since right now it is the agent who is holding all of the extra at the moment, and the sender is coming to extract it from his possession? No?
Answer
I’m not in the middle of this Talmudic passage right now, so I’ll answer off the cuff. First, there are many decision-rules for cases of monetary doubt. “The burden of proof is on the one seeking to extract” is only one of them. Discretionary allocation, “whoever is stronger prevails,” “let it remain unresolved,” “they divide,” etc. The medieval authorities (Rishonim) discuss when each of these is used, and according to each approach one has to consider what this case most resembles.
First of all, it is clear that here there is an independent monetary claim, and there is no presumption based on physical possession of what is under his hand (because we know how it came into his hand). Beyond that, as long as he is an agent, both can be viewed as in possession, since he is the extended hand of the sender. As is well known, when both are in possession, they divide it, as in the case of the cloak.