Q&A: Seizure When Making a Certain Claim
Seizure When Making a Certain Claim
Question
Tosafot’s view is that although seizure is generally ineffective (“if a priest seizes it, we take it out of his hand”), nevertheless seizure accompanied by a certain claim does help. Why? After all, if seizure does not help, that means the rule that “the burden of proof is on the one seeking to extract money from another” is a definite rule—so why should a certain claim help here?
Answer
I don’t know what you mean by a “definite rule.” The rule that the burden of proof is on the one seeking to extract money from another is the law, and whoever has been awarded the money has been awarded it. Of course, this does not truly clarify that it is his, but that is the halakhic-legal procedure.
The question also depends on what the current holder is claiming. If he claims “perhaps,” then it is possible that the seizure turns the one who seized it into the current possessor, and now it cannot be taken from him against a claim of “perhaps.” But if the one who seized it does not make a certain claim, then the seizure does not help make him into the current possessor, because he has no claim. A true, original possessor, however, prevails even with a claim of “perhaps,” because he was already in possession even before making his claim.
Discussion on Answer
For the same reason that a presumption without a claim is ineffective. Possession is a legal status, not a clarification of facts. The status applies if minimum conditions are met—at the very least, that you claim the money is yours.
How is the original possessor different, if he is considered in possession even with a claim of “perhaps”? Why should there be a difference between the one who seizes and the original possessor?
I wrote this already. The original possessor is in possession before the discussion begins, so his status as possessor does not depend on a claim—at least a claim of “perhaps” is enough. In Kovetz Shiurim there is a discussion whether a claim of “perhaps” is a weak claim or not a claim at all. But here he is trying to create an artificial status of possession by means of seizure. That cannot be done when you have no claim.
Why, if he doesn’t make a certain claim, does his seizure not turn him into the current possessor? What’s the logic behind that?