“Possession,” the old common law adage goes, “is nine points of the law.”
This saying succinctly summarizes a principle more fully articulated by Skip Rutledge in 2000: “In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual possession of the property is presumed to be the rightful owner. The rightful owner shall have their possession returned to them; if taken or used. The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not.”
The phrase itself has been traced back to the Scottish expression “Possession is eleven points in the law, and they say there are but twelve,” as quoted by Albert M. Martin 1882 in the Chautauquan, Volume 3.
The two ideas embodied in the “possession is nine points (or nine tenths) of the law” concept are presumptive ownership and burden of proof.
Who is the presumptive owner, and who bears the burden of proof in an ownership dispute?
But the important underlying question that the adage does not address is how do I acquire possession?
In the Talmud, possession takes place through an act of acquisition, in a process called “kinyan.” The actual act of acquiring a possession is called ma’aseh kinyan and the process is called kabalat kinyan. As you might expect, details matter, and the mode of acquisition (the nature of the actual act of acquisition, physical or symbolic) depends on the type of possession. For example, kinyan may be performed by delivery (mesira), lifting (hagbaha), leading or dragging (meshicha), or contract.
But does size matter?
This issue troubled the rabbis in relation to acquiring possession of an animal.
While the majority of the sages ruled that kinyan of an animal is accomplished by mesira (handing over) or by meshicha (delivery), Rabbi Simeon ruled that the preferred act for the acquisition of an animal is by lifting it, called kinyan hagbaha. For a chicken, that is easy. But the Rabbi Joseph demurred, wanting to test the limits of Rabbi Simeon’s ruling by considering an extreme case.
In Kiddushin 25b-26a, the Talmud explores this question. It considers how to acquire an elephant. The Talmud asks how, in Rabbi Simeon’s view, the act of kinyan can be accomplished by lifting an elephant, which can weigh up to 15,000 pounds. One suggestion the Talmud offered for effecting kinyan for an elephant is “chavilei zemorot” or bundles of grapevines. The Talmud does not elaborate on what exactly is meant by this phrase.
The medieval commentator Rabbi Shlomo Yitzchaki, generally known by the acronym Rashi (1040 –1105) understands that the elephant is guided, so that it walks on top of piles of sticks, which create a platform. Thus elevated above the land, a kinyan hagbaha can accomplished even with an elephant, in accordance with Rabbi Simeon’s view.
The tosafists (12th century to the middle of the 15th century) reject Rashi’s suggestion as forced, and rely instead on the suggestion of Rabbi Meshulem ben Nathan of Melun, a French tosafist born at Narbonne about 1120. He noted that the Talmud, in Shabbat 128a, observed that vines are used as food for elephants. He then suggests that the idea is to hang the vines from a high place. The elephant, seeking food, will see the vines and jump up, performing hagbaha on itself. This view is accepted by both the Ritva, Rabbi Yom Tov ben Avraham Asevilli (1250-1330) and by Nahmanides, (RaMBaN), Rabbi Moses ben Naḥman Girondi, Bonastruc ça (de) Porta (1194 – 1270).
The ingenious explanation, however, is fraught with its own difficulty.
Is it possible for elephants to jump?
Although Europeans first came in contact with live elephants in 327 BCE, when Alexander the Great descended into India from the Hindu Kush, the mountain range between central Afghanistan and northern Pakistan, it is unlikely that any of these commentators actually saw an elephant in the flesh.
What we do know is that the sultan of Egypt, Al-Kami,l presented the Cremona Elephant to the Holy Roman Emperor Frederick II in 1229. Louis IX of France gave Henry III of England an elephant for his menagerie in the Tower of London in 1255. We have to conclude, though, that despite those two elephants’ presence in Europe, the tosafists, who lived primarily in France and Germany from the 12th century to the middle of the 15th century, were unlikely actually to have seen them. They seem to have been relying on received wisdom and logic rather than on any direct observational evidence of the elephant’s capabilities.
So the Tosafists’ explanation demands the obvious question: Can elephants in fact jump?
To answer that, we need to look to Rabbi Natan Slifkin, an expert in matters both zoological and talmudic. He considered exactly this question in an essay, “The Case of the Jumping Elephant.” Rabbi Slifkin relies on his own personal study of elephant biology, some of it gained by studying Buffy and Lisa, two elephants who live at the Vision Quest Ranch in Salinas, Calif., about 45 miles south of San Jose.
Buffy and Lisa were rescued by the Elephants of Africa Rescue Society, a group that works to preserve wild elephant habitats and care for the endangered animals in captivity. Rabbi Slifkin augmented his own observations by referencing a variety of learned zoological biology tracts, as well as David Feldman’s great and humorous book, “Do Elephants Jump?”
Rabbi Slifkin concludes emphatically that as a function of their biology, elephants can’t possibly jump on all fours. That’s a mandatory requirement for proper kinyan hagboha, which requires that the acquisition is lifted completely off the ground. Even the famous circus elephants seen standing on two legs, including P.T. Barnum’s most famous elephant, Jumbo (1860-1855), who was the first African elephant to reach modern Europe alive, do so painfully, and only after their trainers prod them with sharp instruments.
Based on incontrovertible evidence, Rabbi Slifkin concludes that Rashi’s explanation, which is in line with reality, even if its language is a little forced, explains the Talmud’s comment more plausibly.
In closing, I am reminded that it is monkeys who jump on the bed, as we know from the Mother Goose nursery rhyme:
“Five little monkeys jumping on the bed,
One fell off and bumped his head.
Mama called the doctor and the doctor said,
“No more monkeys jumping on the bed!”