Q&A: The Burden of Proof Rests on the One Seeking to Extract from Another: Negative and Positive Ownership
The Burden of Proof Rests on the One Seeking to Extract from Another: Negative and Positive Ownership
Question
I heard the Rabbi’s shiur in “Learning and Ruling,” where he discussed betrothal with an object that had been declared his because the burden of proof rests on the one seeking to extract from another. But it seems to me that there is another way to understand this.
In a case where one party claims “perhaps” and the possessor is in possession, as against someone with a definite claim, we say: the burden of proof rests on the one seeking to extract from another.
It is clear that “the burden of proof rests on the one seeking to extract from another” means a negative definition of ownership: it is forbidden to take it out of his possession, and he decides whether to part with it or not. So there is indeed a ruling here—that it is his. However, that ruling also says that he does not have positive ownership over what he possesses. Suppose evidence is later found; then it can indeed be taken from him—for example, witnesses testify that it is not his, or there is contrary evidence showing whose it is.
So previously he had negative ownership even after this clarification of the facts, but he did not have positive ownership. If evidence is found against him, then from the moment that evidence is found and onward, he no longer has negative ownership. And if he has evidence, then he also has positive ownership. But retroactively, he had negative ownership, though not positive ownership.
Every object contains two values. There is the social value—the object’s value in society. And there is the personal value—the fact that this particular object is his has personal value, in the sense that “a person prefers his own measure to nine measures belonging to his fellow.”
With negative ownership, the object cannot be taken from him. That means he has the general value of the object.
But it cannot be said that he has positive ownership such that we can attribute to him a personal value in the object, because perhaps it is not really his. Only with respect to something that is truly his can he assign personal value to it.
But as long as he has negative ownership, the personal value of the object has significance by virtue of the general value of the object that belongs to him.
But what happens if evidence is found that the object belongs to the plaintiff?
The answer is that the object’s positive ownership is revealed to belong to the plaintiff. Therefore, the object itself can be restored to the plaintiff, because the object’s personal value belongs entirely to him.
But one cannot say that the defendant’s sale was not a sale. Because in commerce, it is the general value that determines the act of acquisition: he gives the buyer the object’s general value, and in exchange receives corresponding monetary value. That is why we say that if the buyer purchased for a sum far beyond the object’s general value, the sale is void as an overcharge beyond one-sixth.
Therefore, the defendant did indeed transfer the general value to the buyer. So if we are talking about money as such, then with money its value is only its general value, and therefore the money will not be taken from the buyer; rather, that money will be taken from the defendant.
But if he gave an object to the buyer, then the object itself has a personal value that was not transferred, and therefore the religious court will return the object to the plaintiff. But the negative ownership had belonged to the seller and not to the plaintiff before evidence was found for the plaintiff. Therefore the general value belonged to the defendant, and the money he received for that value from the buyer he must return to the buyer, because that value passed to the buyer in exchange for the money he received from him.
But what if we are dealing only with money? Money’s value is only general. The moment he has negative ownership, the sale takes effect. Consequently, this money cannot be taken even from the buyer, but only from the seller, whose general value it was, and not the plaintiff’s—even after the fact. Retroactively it turns out that the plaintiff was claiming the object’s personal value, meaning positive ownership, but he did not have negative ownership, meaning the personal value, and therefore the sale stands. And now the general value must be taken from the defendant, because his negative ownership over the object’s value has been nullified. It is like a kind of debt that must be collected from him.
But what about betrothal money?
Here the question is whether the betrothal is effected by the object’s general value or by its personal value.
If the value of positive ownership is what matters, then there is no betrothal here, because retroactively it becomes clear that he had no positive ownership at all in the object.
And if the value of negative ownership is what matters, then there is betrothal here, because that ownership was not retroactively nullified.
And what is the status of this money before there is evidence—are there betrothal or not?
It can be said that there is a presumption here that one who has negative ownership also has positive ownership. Therefore, based on that presumption, one should say that there was betrothal, even if we say that positive ownership is required in order to betroth.
The question remains: what happens if evidence is found, and the person realizes that this object was not his from the outset and that he should have returned it to the plaintiff, and that it was never his? Was there betrothal? I am inclined to say that retroactively one should say there was no betrothal.
Seemingly this can be proven from betrothal, where they tell her that the ring is worth a perutah; for if in her mind it is worth more in its general value than she thought, we say that her intention was not directed to that value, and therefore there was no betrothal.
Because it is not the monetary value itself that effects the betrothal. One only needs to know that the woman’s intention is directed to the object’s true value and that she is not overvaluing it. Otherwise one might think this is a mistaken betrothal—that she did not agree to become betrothed on that basis. And seemingly, if negative ownership suffices, then she is betrothed.
But this argument can be rejected. One can say that it is the transfer of his positive ownership in the object that effected the betrothal; only along with positive ownership there is also negative ownership. And one could argue that the woman also wanted the significance of negative ownership in order to be betrothed by it together with the positive ownership in the ring.
And the woman must receive positive ownership such that it can never be taken from her, just as the woman herself cannot leave him by bringing evidence; therefore she receives an object that will be hers forever. It was on that condition that she agreed to become betrothed. And this is all the more so: if regarding the object’s value she can claim that she would not have become betrothed, then if the object itself is not hers forever, certainly she did not become betrothed on that basis.
What does the Rabbi think?
Answer
It’s long and completely unclear. Unfortunately, I didn’t understand any of it.
I’ll only say that even with an ordinary object that is in my possession and I am certain is mine, if two witnesses come and say it is not mine, they will take it from me.
Discussion on Answer
Either I didn’t understand, or you’re just repeating the standard ideas with an unsuccessful formulation of ownership vis-à-vis the religious court and vis-à-vis God. I also don’t understand your goal. What do you want to gain from this formulation?
I will explain my words more deeply, and I think then the Rabbi will understand me.
First of all, my view is that the foundation of morality and the foundation of the Torah are one and the same (briefly speaking). Its basis is that all being wants to realize itself, and from this emerge the ten sefirot—that is, ten moral values.
The value of property is a fundamental value. Through property, a person realizes himself. This is not property that stems from society; it stems from the essence of the soul. In the human soul there is a power of acquisition, and a person actualizes himself through possessions.
Another value is the value of life: to express oneself to another. This value grants a person a fundamental right to live in society. From this fundamental right society arises, kingship/government. It has the right to legislate laws for the benefit of society. And this is the rule that the law of the kingdom is law. Society can grant things by infringing the property rights of members of society. That is, society’s restraint is what creates the rights.
Let us take an example: can one acquire patents or something not yet in existence?
From the fundamental proprietary right, this is impossible. That would be genuine acquisition.
By contrast, patent rights can be created by infringing the rights of others. The result will resemble real ownership: he will be able to use it and others will not. But the source of this ownership does not stem from a positive essence in reality; rather, it is created through infringement on the rights of members of society. Thus ownership is produced in a negative way. Genuine ownership, by contrast, is not created through infringement on another’s property right, nor can it come at another’s expense. I can acquire something only if there is no fundamental property right over it. Otherwise there is no acquisition at all.
Therefore, when we deal with acquisition, we must ask what kind of acquisition is involved. Is it genuine acquisition, or is it artificial acquisition stemming from society?
What practical difference does this make?
For example, if the religious court ruled that the object is his, then if the one who claims definitely steals it from him, he has not violated the Torah prohibition “You shall not steal.” And similarly, what happens in a society where there is no enforcement of social property laws, such as the Kovno Ghetto (where the Rabbi spoke about Rabbi Giblarter’s ruling in the ghetto)? There is still ownership that stems from being itself, not from society.
Therefore, with betrothal we must ask whether we need a real act of acquisition, or whether we need only the result of an act of acquisition—namely, that the woman actually receive the object as hers through this artificial social acquisition. Seemingly, in betrothal we need an actual act of acquisition and not merely the result that the woman has the object as hers, because that act is what creates the betrothal.
And someone living within a non-Jewish society—so long as society does not agree that it is his according to the laws of possession, that does not truly make it his. Then the object found with him is in doubt, and therefore he cannot sell it even by means of social acquisition.
Therefore, social acquisition is negative ownership, arising from the fact that no one else is permitted to use it but him, and in that way he has a property right in it. But fundamental acquisition is positive ownership, arising from the owner and not from society.
I don’t see any connection to the question of morality and Torah. I don’t see any connection between morality and the ten sefirot. I don’t see any connection there between morality and the realization of being itself (what does that even mean?). I don’t see any connection between all these and acquisition. And finally, no connection at all between all this and the value of life. Nor is this about a person’s right to live in society, but about his ability to do so (that is, you can argue that without property it is hard to live in society, but I do not understand where this right comes into it, even if it exists).
In any case, even if all this existed, it has no connection whatsoever to the discussion itself.
As for your proposal itself, I will repeat what I said. I don’t see what you gain from this cumbersome formulation. You brought me practical differences between the two sides of your conceptual inquiry, but that is not what I asked for. Those practical differences are self-evident. What I asked was: what is the practical difference between this formulation and the formulation of the standard conceptual inquiry (whether a legal right creates ownership or not)? What does that have to do with acquisitions vis-à-vis the religious court and vis-à-vis the Holy One, blessed be He? In my opinion, you are repeating the same thing in different words (and less successfully).
I suggest ending it here.
The will of Being in creating the worlds is to reveal the perfection of its acts and attributes. In plain language: self-realization.
The sefirah of kingship is self-realization in collective social identity. From this derives the rule that the law of the kingdom is law, through which it may establish laws for the benefit of society and infringe on the rights of individuals.
Unlike the standard conceptual inquiry, I am not arguing that there is either a legal right or a Torah right.
What is called a legal right can bring about the result of ownership. But the way ownership operates there is not through an act of acquisition, but through the law of the kingdom. By contrast, an act of acquisition involves witnesses to the agreement to the acquisition and to the act, where the act is an act of acquisition.
I am proposing that there are two kinds of ownership: ownership vis-à-vis God and ownership vis-à-vis the religious court.
In a case of “one who claims: perhaps” against “one who claims definitely,” the religious court rules that the one in possession who says “perhaps” is not forced to give it up. But afterward it becomes clear to the one claiming “perhaps” that it really was not his. Could one imagine that he may keep holding the object because of the court’s ruling? Certainly not. It turns out that it was never his.
What creates ownership vis-à-vis God? An act of acquisition—that is, an act to which the legal status of an act of acquisition applies. If he performed an act on an object that is not his, without the consent of the object’s owner, that is not an act of acquisition. In that case, it is obvious to us that the object belongs to the other person, and the one with the definite claim testifies regarding what is his.
We see the object as representing the owner because of the act of acquisition. And the concept of ownership says that the owner has absolute control over the property (relative to the type of property right he has—for example, a field owned only for its produce is not his for building on it). Therefore, the personal value a person gives an object—such as sentimental value, or simply because it is his, in the sense that “a person prefers his own measure to nine measures of his fellow”—is what determines the object. And this object cannot be exchanged for another object of similar economic value, because property is a means of making the owner present in the world. Nothing can be assessed in comparison to that.
Ownership vis-à-vis the religious court (and not vis-à-vis God) means that he has possession rights over the object. That possession creates a connection between the object and the defendant who says “perhaps,” even if it is not truly his. We say that as long as God’s true view is hidden, it is as if it is his. And if he sells it to another, he transfers the possession status of the object to the buyer, and it will be his just as it had been the defendant’s. And if proof later comes as to whose object it is, they will return the object to the plaintiff. Relative to everyone to whom it does not belong, the object belongs to the defendant. Only if proof comes as to whose object it is can it be taken from him. And he must conduct himself as the owner in every respect regarding the object. Just like a pit in the public domain, which is not his, yet Scripture treats it as though it were in his domain: relative to the one to whom the matter truly belongs—the public—it can indeed be taken from him, but in every respect concerning how one must deal with the object, it is entirely his and obligates him for damages.
That means he has permission to use the object, but not that the acquisition extends the owner’s presence in the world. So even though it is not truly his, we regard it as though it were his for purposes of conduct regarding the object.
A practical difference: if the one with the definite claim steals the object, will he be called a robber vis-à-vis God? No, because he took what was his. But the religious court will judge him as though he stole what was not his. Why? Because he deprived the possessor of the right to use the object.
Therefore, one who sold an object over which he had possession rights did indeed grant the buyer the right to use the object. And that is an absolute right vis-à-vis the religious court, so long as there is no proof. But if witnesses come, that possession right expires from that point onward, though not retroactively. Therefore there was a sale. But if proof comes, then the possession right expires going forward. And even though the sale was valid, because he sold the possession right, that was only on the assumption that it was permanent possession. Therefore, if the possession right expires going forward, the sale too is void.