Who is Testing Whom and More Bava Basra 33-34

33

Grabbing a Mitzvah

Our Gemara on Amud Beis discusses an interesting legal analysis. In Jewish Law, as in secular law, possession itself confers a powerful presumption of ownership. However, if witnesses testify about the origin point of possession to the extent that it undermines the presumptive owner’s credibility, possession loses its legal force. But what would be the case if the possessor offered an alternative narrative while still not contradicting the technical details of their testimony? For example, consider this case recounted in the Gemara: 

There was a certain man who snatched a piece of cast metal from another, [who ought to be considered the presumptive owner]. Yet, the one from whom it was taken came before Rabbi Ami while Rabbi Abba was sitting before him, and brought one witness who testified that it was, in fact, snatched from him. However, the one who snatched it made a counter : Yes, it is true that I snatched it, but I merely snatched (״chatafti”) that which was mine. 

Here, the possessor can effectively reestablish his original presumption of ownership as proven by holding the object, and reinterpreting the testimony of the witnesses so that it doesn’t undermine his basic story. 

Rosh Dovid Pinchas (39) uses this phrase to explain the mitzvah of tzedakah by way of a melitzas halashon.

We saw earlier in Bava Basra 10b:

שאל טורנוסרופוס הרשע את רבי עקיבא: אם אלהיכם אוהב עניים הוא, מפני מה אינו מפרנסם? אמר לו: כדי שניצול אנו בהן מדינה של גיהנם.

Turnus Rufus the wicked asked Rabbi Akiva: If your God loves the poor, for what reason does He not support them Himself? Rabbi Akiva said to him: He commands us to sustain the poor, so that through them and the charity we give them we will be saved from the judgment of Gehenna.

אמר לו: [אדרבה], זו שמחייבתן לגיהנם! אמשול לך משל, למה הדבר דומה? למלך בשר ודם שכעס על עבדו, וחבשו בבית האסורין, וצוה עליו שלא להאכילו ושלא להשקותו. והלך אדם אחד והאכילו והשקהו. כששמע המלך, לא כועס עליו? ואתם קרוין עבדים, שנאמר: ״כי לי בני ישראל עבדים״!

Turnus Rufus said to Rabbi Akiva: On the contrary, it is this charity which condemns you, the Jewish people, to Gehenna because you give it. I will illustrate this to you with a parable. To what is this matter comparable? It is comparable to a king of flesh and blood who was angry with his slave and put him in prison and ordered that he should not be fed or given to drink. And one person went ahead and fed him and gave him to drink. If the king heard about this, would he not be angry with that person? And you, after all, are called slaves, as it is stated: “For the children of Israel are slaves to Me” (Leviticus 25:55). If God decreed that a certain person should be impoverished, one who gives him charity defies the will of God.

אמר לו רבי עקיבא, אמשול לך משל: למה הדבר דומה? למלך בשר ודם שכעס על בנו וחבשו בבית האסורין, וצוה עליו שלא להאכילו ושלא להשקותו. והלך אדם אחד והאכילו והשקהו. כששמע המלך, לא דורון משגר לו?! ואנן קרוין בנים, דכתיב: ״בנים אתם לה׳ אלהיכם״!

Rabbi Akiva said to Turnus Rufus: I will illustrate the opposite to you with a different parable. To what is this matter comparable? It is comparable to a king of flesh and blood who was angry with his son and put him in prison and ordered that he should not be fed or given to drink. And one person went ahead and fed him and gave him to drink. If the king heard about this once his anger abated, would he not react by sending that person a gift? And we are called sons, as it is written: “You are sons of the Lord your God” (Deuteronomy 14:1).

Similarly, we find the Midrash (Vayikra Rabbah 34) that states:

וכי ימוך אחיך, הדא הוא דכתיב (משלי יט, יז): מלוה ה’ חונן דל, אמר רבי אלעזר כתיב (תהלים קלו, כה): נתן לחם לכל בשר, בא זה וחטף לו את המצוה, אמר הקדוש ברוך הוא עלי לשלם לו גמולו, הדא הוא דכתיב (משלי יט, יז): וגמלו ישלם לו. רבי תנחומא אמר לה בשם רבי חיא בר אבא רבי נחמן אמר לה בשם רבי יודן ברבי שמעון ורבנן בשם רבי שמעון בן לקיש, אלמלא מקרא כתוב אי אפשר לאמרו, כביכול דרכו של לוה להיות עבד למלוה, הדא הוא דכתיב (משלי כב, ז): ועבד לוה לאיש מלוה.

“If your brother will become poor” – that is what is written: “He who cares for the poor lends to the Lord” (Proverbs 19:17). Rabbi Elazar said: It is written: “He gives food to all flesh” (Psalms 136:25). This one came and snatched (“chataf”) the mitzvah from Him. The Holy One blessed be He said: ‘It is incumbent upon Me to pay him his reward.’ That is what is written: “And He will pay his reward” (Proverbs 19:17). Rabbi Tanḥuma said it in the name of Rabbi Ḥiyya bar Abba, Rabbi Naḥman said it in the name of Rabbi Yudan ben Rabbi Shimon, and the Rabbis in the name of Rabbi Shimon ben Lakish: Were the verse not written, it would be impossible to say it. As it were, it is the way of a borrower to be a servant to the lender. That is what is written: “A borrower is a servant to a man who lends” (Proverbs 22:7). 

We see two indications that it should be improper to give charity and thwart God’s will. Turanus Rufus argues that giving charity undermines God’s will because He is the one who decreed poverty in the first place. The Midrash Rabbah makes a different argument: The actual giving of charity takes away from God a mitzvah that belonged to Him, since the verse says that God is responsible to take care of the destitute. The Midrash goes even further to make a radical theological statement that because the one who gives charity is covering God’s “Debt”, so to speak, God now “owes him one“, and this explains the mechanism by which charity overturns heavenly decrees for punishment. 

Rosh Dovid says that even though the mitzvah belongs to God, the benefactor “grabbed the mitzvah” from God. He argues that he too has possession of this mitzvah, as the Torah commands people to give charity. So he grabbed what really belonged to him.

We can find behind every clever derush a deeper theological concept. We must ask ourselves, why is it that God created the world in such a way that there is loss and imperfection, for which we humans must fill in. God should have made the world “perfect”, that would have been His mitzvah, but like the Afikoman, God leaves the opportunities around for us to grab. (By the way, coincidentally or not so coincidentally, the Gemara Pesachim (109a) uses the same Hebrew word, “chotef” (to grab) as used by our Gemara and the Midrash about tzedakah.)

As we wrote in blog post Psychology of the Daf Bava Metzia 38:

There is a mystical concept known as Nahama De-Kisufa, which translates as “Bread of Shame.”  (Imagine a beggar who must beg for his food, but all the while feels humiliated at being a “nebuch case”. This idea is expressed by the Ramchal, in Derech Hashem (Part One, The Purpose of Creation, Ch. 2):

God is the greatest form of perfection, and part of His perfect goodness is bestowing this goodness. He therefore designed a world where we can have autonomy and ability to choose. So we can earn our reward. While we can never be fully independent as God is, because there can only be one God, God gives us a shot at the sense of perfection and fulfillment. A sense of fulfillment and mastery cannot be given to someone as a gift, just as you cannot give self-esteem or confidence. God designed the conflicted human personality with its ability to be noble and sublime but equally able to be evil and small. This is in order that what we choose to do is done so freely, and has meaning.  

You might ask, if God can do anything, and He only wants to be gracious, why can’t He “rig the system” and give us the feeling of satisfaction of accomplishing, even if we are not?  The answer is that God cannot do that, anymore than He can make a stone He cannot lift, or make 1+1=3.  This is not considered an imperfection or shortcoming on God’s part when He is “bound” to a truth. For more on this, see Ralbag’s commentary on Iyov (7:21), where he quips, “Even though a rooster can say “cock-a-doodle-do” while a human cannot, we do not say that the rooster has a superior quality to that of a human.”

People are not happy when they feel overwhelmed and hopeless, but are also just as miserable when they have no challenges. We do not feel happy by trying to be happy. God built us to feel good when we are working to accomplish meaningful goals. If we do not feel overwhelmed, and we feel we are on a level and fair playing field, the hard work is exhilarating, and not draining. 

34

Who is Testing Whom?

Our Gemara on Amud Beis discusses certain legal situations where both claimants have an equally valid argument, and one has no default assumption of ownership over the other:

There was an incident where two people dispute the ownership of property. This one says: It belonged to my ancestors and I inherited it from them, and that one says: It belonged to my ancestors and I inherited it from them. There was neither evidence nor presumptive ownership for either litigant. Rav Naḥman said: Whoever is stronger prevails. Kol De’alim Gavar.

There is some dispute amongst the commentaries and poskim over what is the official stance of the court. Are the judges fully recusing themselves, and thus literally, no justice is served. It is simply up to the two litigants to fight it out. Or, is it a ruling that the judges allow some kind of process whereby the two individuals fight it out amongst themselves and it becomes a demonstration and evidence of ownership. In other words, the person who has the greater Will and moral resolve somehow will prevail, be providentially, or just do the psychology of somebody who feels he is the rightful owner.

There are two halachic implications of this legal – psychological – spiritual concept, depending on how it is understood. If it is merely a withdrawal and recusal of the judges, that would mean a month from now if the litigant who lost could somehow strong-arm and retake possession, he would have the same rights as the prior person. Second, even the first litigant who prevailed in this battle of wills is not a true owner, but rather an occupier, and cannot use this possession as part of an exchange that activates a Torah obligation, such as giving it as an object of value to effectuate Kiddushin. However, if the judges allow this ordeal to take place and consider it as de facto evidence of ownership, it becomes validated and is considered a court mandated possession. It would not be reversible even if the second litigant later prevailed and took it out of the first person‘s hands. (See Rashbam on this daf, Tosafos Rid Bava Metzia 2a, Rosh Bava Basra Chezkas Habatim 22 and Rav Elchonon Wasserman Kovetz Shiurim, Kesuvos 55 and Kovetz Hearos 71:2.)

How is this justice? On a simple level, we can understand that the greatest justice arises when the judges and the court are humble enough to understand that they have no ability to get to the bottom of the issue. It might be disturbing and unfortunate that they cannot be agents of justice, but it also is a powerful statement to say that our abilities end here and therefore we must recuse ourselves. But even further, if we follow the Rosh, this may also be seen as a judicial action, based on a certain evidentiary process. A basic understanding of the Rosh’s position is that the struggle somehow proves he is the rightful owner because the thief or liar is ambivalent but the true owner is resolute.

There are deeper psychological metaphysical aspects to this as well. Likkutei Halachos (Choshen Mishpat, Hilchos Chezkas Metaltelin 1) explains that a person’s possessions have a certain draw and spiritual attachment as an expression of who they are. To the thinking of Likuttei Halachos, the possessions of a person who walks with God are divinely ordained. In the world of a person whose soul and self are attuned, he will feel drawn to, (or I suppose, repelled by), objects and experiences. For such a person, even the most mundane object or experience is multi-valent. Nothing happens without introspection, mindfulness and attachment to God’s will, (as beautifully articulated in Moreh Nevuchim’s (III:51) famous Palace Metaphor.

Throughout history, cultures employed various forms of Trial by Ordeal in the hopes that either the person subjected to the test will be saved because of their stronger conviction of their innocence, or their guilt will lead to self sabotage, or their innocence or guilt would be divinely orchestrated at that moment of intense danger or truth. The phrase “Trial by Fire” comes from an ancient practice, where literally they would determine a person’s guilt, or innocence based on whether they could survive walking through a fire, or how quickly their burns would heal. Similarly, an accused person may be tied and weighed down, and thrown in the water, with the presumption that the innocent person somehow will miraculously survive. (https://en.wikipedia.org/wiki/Trial_by_ordeal ) 

The Torah also uses ordeals at least regarding the Sotah ritual, though the ordeal is strikingly different in expectations. Instead of, “A test to see you are innocent, so let’s see if you don’t drown or burn,” the Sotah ritual is a test to see if one is guilty. There is a big difference here, especially if one humbly holds that a society which employs the ritual must be overall deserving of divine intervention. The Gemara (Sotah 47a) says that the Sotah waters stopped working when adultery began to proliferate. The point is, in our religion the ordeal relies on a miracle to prove guilt, which is more respectful because nobody dies if there isn’t enough merit for this. Secular ordeals throw the defendant in the fire or water, and expect the miracle to save the person. That could be unfortunate for many innocent people who do not merit divine intervention to save them. (It is considered impertinent to “force” God’s hand by making demands or tests of faith (see Ta’anis 23a and Rosh Hashanah 4a.)

In regard to the ordeal of Kol De’alim Gavar, it would seem we are demanding a miracle, in the expectation of divine intervention in granting him possession via his victory. Why is that not impertinent? The answer is that even though it is a test, relying on divinely granted inspiration to stay in possession, since technically each person is equally in possession of the object, there are no dire consequences if there is no merit. Meaning to say, in the secular ordeal, God is, so to speak “set up”. We throw the person in water or fire and say, “If he is innocent God will save him.” However, in this case of Kol De’alim Gavar, though we are saying, “If it is truly his, God will help him, inspire him, or his spiritual sense of his objects will guide him to win the struggle and take possession”, it is still not relying on a on an outright miracle to maintain possession. Furthermore,if he does not merit any supernatural inspiration or guidance, he won’t drown, burn or necessarily lose the object. This is because he currently has equal possession.